Exhibit (b)(1)
CONFORMED COPY
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Project Barista
(pound)59,000,000 Senior Credit Agreement
Barclays Leveraged Finance
as Mandated Lead Arranger
Barclays Bank PLC
as Facility Agent
Barclays Bank PLC
as Security Agent
relating to the acquisition of Omega Worldwide, Inc. and Principal Healthcare
Finance Limited
1 August 2002
CONTENTS
CLAUSE PAGE
1. INTERPRETATION.........................................................................................1
2. THE FACILITIES........................................................................................37
3. PARTICIPATION OF LENDERS..............................................................................39
4. CONDITIONS PRECEDENT..................................................................................40
5. DRAWDOWN PROCEDURES...................................................................................43
6. ANCILLARY FACILITIES..................................................................................46
7. DEMANDS UNDER BANK GUARANTEES.........................................................................48
8. INTEREST..............................................................................................50
9. SELECTION OF INTEREST PERIODS.........................................................................53
10. MARKET DISRUPTION.....................................................................................54
11. REPAYMENT OF DRAWINGS.................................................................................55
12. PREPAYMENT AND CANCELLATION...........................................................................56
13. PAYMENTS..............................................................................................61
14. TAXES.................................................................................................64
15. CHANGE IN CIRCUMSTANCES...............................................................................66
16. FEES, EXPENSES AND STAMP DUTIES.......................................................................68
17. GUARANTEE AND INDEMNITY...............................................................................71
18. CHANGES TO OBLIGORS AND SECURITY......................................................................74
19. REPRESENTATIONS AND WARRANTIES........................................................................76
20. UNDERTAKINGS..........................................................................................86
21. EVENTS OF DEFAULT....................................................................................117
22. THE AGENTS AND THE OTHER FINANCE PARTIES.............................................................124
23. PRO RATA PAYMENTS....................................................................................130
24. SET-OFF..............................................................................................131
25. NOTICES..............................................................................................132
26. CONFIDENTIALITY......................................................................................133
27. CHANGES TO PARTIES...................................................................................133
28. LENDERS' DECISIONS...................................................................................136
29. INDEMNITIES..........................................................................................138
30. MISCELLANEOUS........................................................................................139
31. GOVERNING LAW AND SUBMISSION TO JURISDICTION.........................................................140
SCHEDULE 1..................................................................................................141
Lenders.....................................................................................................141
SCHEDULE 2..................................................................................................142
Borrowers...................................................................................................142
SCHEDULE 3..................................................................................................143
Guarantors..................................................................................................143
SCHEDULE 4..................................................................................................144
Part 1 - Conditions Precedent to signing this agreement.....................................................144
Part 2 - Conditions Precedent - First Drawdown..............................................................148
Part 3 - Conditions subsequent relating to the granting of security.........................................153
Part 4 - Corporate Documents in respect of each Obligor.....................................................155
SCHEDULE 5..................................................................................................156
Part 1 - Drawdown Request - Advances........................................................................156
Part 2 - Drawdown Request - Bank Guarantees.................................................................157
SCHEDULE 6..................................................................................................158
Transfer Certificate........................................................................................158
SCHEDULE 7..................................................................................................163
Accession Document..........................................................................................163
SCHEDULE 8..................................................................................................167
Mandatory Cost formulae.....................................................................................167
SCHEDULE 9..................................................................................................170
Part 1 - Initial Obligors...................................................................................170
Part 2 - Target Companies...................................................................................171
Part 3 - Key Properties.....................................................................................173
Part 4 - Australian Group...................................................................................179
SCHEDULE 10.................................................................................................180
Consents....................................................................................................180
THIS CREDIT AGREEMENT is made on 1 August 2002
BETWEEN:
(1) FOUR SEASONS HEALTH CARE LIMITED (a company incorporated in England and
Wales with registered number 3782935) (the "PARENT");
(2) FOUR SEASONS HEALTH CARE HOLDINGS PLC (a company incorporated in England
and Wales with registered number 3806216) ("FSHC HOLDCO") as a Borrower;
(3) THE COMPANIES LISTED IN SCHEDULE 3 each as Guarantors (the "INITIAL
GUARANTORS");
(4) BARCLAYS BANK PLC as mandated lead arranger (the "ARRANGER");
(5) THE FINANCIAL INSTITUTIONS LISTED IN SCHEDULE 1 as Lenders;
(6) BARCLAYS BANK PLC, in its capacity as facility agent for the Lenders
under the Senior Finance Documents (the "FACILITY AGENT"); and
(7) BARCLAYS BANK PLC, in its capacity as agent and trustee for the Finance
Parties under the Security Documents (the "SECURITY AGENT").
THE PARTIES TO THIS AGREEMENT AGREE as follows:
1. INTERPRETATION
1.1 DEFINITIONS
In this agreement:
"ACCESSION DOCUMENT" means an agreement substantially in the form set out
in schedule 7 under which a Group Company becomes a Guarantor and/or a
Borrower and becomes a party to the Intercreditor Deed;
"ACCOUNTANTS' REPORT" means the accountants' report (including a report
on tax) in the approved form prepared by KPMG in relation to the Target
Groups;
"ACCOUNTING QUARTER" means each period of approximately 13 weeks ending
on the last day of March, June, September, and December in a Financial
Period;
"ADDITIONAL COST RATE" has the meaning given to it in schedule 8
(Mandatory Cost Formulae);
"ADVANCES" means the Term A Advances, the Term B Advances, the Term C
Advances, the Cash Bridge Advances and the Revolving Advances;
"AFFILIATE" means a Subsidiary or a Holding Company of another person or
any other Subsidiary of a Holding Company of that other person;
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"AGENCY FEES LETTER" means the letter from the Facility Agent to the
Parent dated on or about the date of this agreement setting out details
of certain fees payable by the Parent in connection with the Facilities;
"AGENT" means each of the Facility Agent and the Security Agent;
"ALCHEMY UNDERTAKING" means the undertaking in the agreed form dated on
or about the date of this agreement whereby Alchemy Partners (Guernsey)
Limited undertakes to the Facility Agent to make funds available to the
Parent and/or FSHC Investments in the circumstances set out therein;
"ALCHEMY UNDERTAKING INVESTOR LOAN NOTE INSTRUMENT" means the loan note
instrument in the agreed form constituting the issue of the Alchemy
Undertaking Investor Loan Notes in accordance with the Alchemy
Undertaking;
"ALCHEMY UNDERTAKING INVESTOR LOAN NOTES" means the (pound)8,624,000
discounted unsecured guaranteed A4 loan notes of FSHC Investments to be
issued pursuant to the Alchemy Undertaking Investor Loan Note Instrument
in accordance with the Alchemy Undertaking;
"ALCHEMY UNDERTAKING PROCEEDS" means all amounts provided to the Parent
and/or FSHC Investments pursuant to the Alchemy Undertaking;
"ANCILLARY DOCUMENT" means each Ancillary Facility Letter and each other
document and agreement made by an Ancillary Lender and any Group Company
in connection with the Ancillary Facilities;
"ANCILLARY FACILITIES" means working capital facilities made available by
an Ancillary Lender under an Ancillary Facility Letter;
"ANCILLARY FACILITY LETTER" means a facility letter entered into by an
Ancillary Lender and one or more Borrowers in accordance with clause 6
(Ancillary Facilities);
"ANCILLARY LENDER" means a Lender which has agreed to make available
Ancillary Facilities under an Ancillary Facility Letter (until all
amounts outstanding under those Ancillary Facilities have been discharged
and it no longer makes those Ancillary Facilities available);
"ANCILLARY LIMIT" means the maximum amount (excluding accrued
uncapitalised interest, fees and similar charges) which an Ancillary
Lender has agreed to make available by way of Ancillary Facilities in
accordance with clause 6 (Ancillary Facilities), less any part of that
amount which has been cancelled, reduced or terminated in accordance with
this agreement or the relevant Ancillary Facility Letter;
"ANCILLARY OUTSTANDINGS" means the aggregate outstanding amount of the
Ancillary Facilities due to an Ancillary Lender at any time, calculated
on the following basis:
(a) all amounts of principal then outstanding under any overdraft or
other current account facilities, calculated on a net basis in
accordance with the usual practice of that Ancillary Lender;
(b) the maximum liability under all guarantees, bonds and letters of
credit then outstanding and issued under any guarantee, bonding or
letter of credit facilities made available by that Ancillary
Lender; and
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(c) the amount which that Ancillary Lender (acting reasonably) may
determine represents its aggregate exposure in relation to any
other facility or financial accommodation in accordance with its
usual practice for calculating its exposure;
"ANNUAL ACCOUNTS" means the audited annual accounts of the Existing
Group, the Isle of Man Group, the Fife Group, the Idun Group, the US
Target Group (other than the Idun Group) and Jersey Holdco and its
Subsidiaries delivered or to be delivered to the Facility Agent under
clause 20.10(c) (FSHC Financial Statements) and clause 20.10(d) (PHFL
Financial Statements);
"APPROVED ACCOUNTING PRINCIPLES" means UK gaap and, subject to those
principles, the accounting principles, standards and practices on the
basis of which the Original Audited Accounts were prepared;
"APPROVED ACQUISITIONS" means the acquisition of assets or shares and/or
the development of capital assets (i) where any third party debt to
finance such acquisition or development is provided on the basis that
recourse is limited to the assets or entity so acquired or being
developed or (ii) where any debt to finance such acquisition or
development is provided by The Royal Bank of Scotland plc and it is
provided on the basis that recourse is limited to members of RBS Group;
"APPROVED PROJECTIONS" means the financial projections and forecast for
the business of the Target Groups in the agreed form on a basis
consistent with the Approved Accounting Principles;
"ARRANGER'S FEES LETTER" means the letter from the Arranger to the Parent
dated on or about the date of this agreement setting out details of
certain fees payable by the Parent in connection with the Facilities;
"ARTICLES OF MERGER" means the Articles of Merger filed with the State
Department of Assessments and Taxation of the State of
Maryland in the
United States;
"ASSET ADMINISTRATION AGREEMENTS" means the asset administration
agreements entered into in relation to the First Securitisation and the
Second Securitisation and more particularly described in the First
Securitisation Offering Circular and the Second Securitisation Offering
Circular;
"AUDITORS" means Ernst & Young, KPMG or any other firm of accountants
which the Parent appoints in accordance with clause 20.10(b) (Books of
account and auditors);
"AUSTRALIAN APPROVAL" means the approval from the Australian Foreign
Investments Review Board of the acquisition of the US Target Shares
pursuant to the US Offer;
"AUSTRALIAN DISPOSAL" means the disposal by the US Target Group of its
interest in Principal Healthcare Finance Trust, Principal Healthcare
Finance Trust No. 2, Principal Healthcare Finance (NZ) Limited and Omega
(Australia) Pty Limited;
"AUSTRALIAN GROUP" means each of the companies and trusts listed in part
4 of schedule 9 and each of their Subsidiaries;
"AVAILABILITY PERIOD" means the period starting on the date of this
agreement and ending:
(a) 240 days after the date of this agreement in the case of the Term
A Facility, the Term B Facility, the Term C Facility and the Cash
Bridge Facility; and
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(b) one month before the Revolving Facility Repayment Date, in the
case of the Revolving Facility;
"AVAILABLE COMMITMENT" means, save as otherwise provided in this
agreement, the Revolving Commitment of a Revolving Lender less:
(a) the Original Sterling Amount of the aggregate participation of
that Revolving Lender in all outstanding Drawings under the
Revolving Facility; and
(b) the amount of the Ancillary Limit applicable to any Ancillary
Facilities made available by that Revolving Lender,
and taking into account any scheduled Drawing, repayment or prepayment in
respect of the Revolving Facility (other than a repayment or prepayment
of a Bank Guarantee by way of cash collateralisation) by assuming that it
will occur on its scheduled date;
"BANK GUARANTEE" means a guarantee or letter of credit issued by an
Issuing Lender under the Revolving Facility in the form agreed by the
Parent, the Facility Agent and the relevant Issuing Lender;
"BENEFICIARY" means the person approved by the relevant Issuing Lender
(such approval not to be unreasonably withheld) in whose favour a Bank
Guarantee has been or is to be issued;
"BERKSHIRE EXTENSION" means the development of land and buildings at the
Berkshire Care Home, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇;
"BORROWER" means FSHC Holdco and each other Group Company which becomes a
borrower under this agreement in accordance with clause 18.1 (Additional
Borrowers) by executing an Accession Document;
"BUSINESS DAY" means a day (other than a Saturday or a Sunday) on which
banks and financial markets are open in London and New York for the
transaction of business of the nature required by this agreement and:
(a) in relation to a transaction involving Euros, which is also a
TARGET Day; and
(b) in relation to a transaction involving any other Optional
Currency, on which banks and foreign exchange markets are also
open in the principal financial centre of the country of that
Optional Currency;
"BUSINESS PLAN" means the business plan prepared by the Parent in the
agreed form for the Group dated 17 June 2002;
"CAPITAL EXPENDITURE" means expenditure which should be treated as
capital expenditure in accordance with the Approved Accounting
Principles;
"CAPITALISING RATE" means 18 per cent. per annum less the rate of
interest specified in clause 8.1(a) (Rate) for each Term C Advance;
"CASH BRIDGE ADVANCES" means the principal amount of the advances made or
to be made under the Cash Bridge Facility, as reduced from time to time
by repayment or prepayment;
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"CASH BRIDGE COMMITMENT" means:
(a) in relation to a Lender identified in schedule 1, the amount set
opposite its name under the heading "Cash Bridge Commitment" in
schedule 1 and the amount of any other Cash Bridge Commitment
transferred to it under this agreement; or
(b) in relation to any other Lender, the amount of any Cash Bridge
Commitment transferred to it under this agreement;
to the extent not cancelled, reduced or transferred by it under this
agreement;
"CASH BRIDGE FACILITY" means the bridge facility made available by the
Cash Bridge Lenders under clause 2.1(d) (Facilities);
"CASH BRIDGE FINAL REPAYMENT DATE" means the earlier of:
(a) 31 January 2003; and
(b) as soon as reasonably practicable following the date for payment
of cash in full for the Australian Disposal;
"CASH BRIDGE LENDERS" means:
(a) the persons identified in schedule 1 as participating in the Cash
Bridge Facility;
(b) each Transferee which has become a party to this agreement in
relation to the Cash Bridge Facility in accordance with clause 27
(Changes to parties);
in each case until its entire participation in the Cash Bridge Facility
has been assigned or transferred to a Transferee in accordance with
clause 27 (Changes to parties) and all amounts owing to it under the
Senior Finance Documents in relation to the Cash Bridge Facility have
been paid in full;
"CASH COLLATERAL ACCOUNT" means an account with the Security Agent (or
any other Lender) opened in the name of an Obligor which is designated by
the Parent and the Facility Agent for the purpose of receiving payments
of cash collateral under clause 1.4 (Cash cover) and/or clause 12
(Prepayment and cancellation) and over which the Security Agent has a
first priority security interest under the Security Documents;
"CASHFLOW" means EBITDA for the Parent and its Subsidiaries and for
Jersey Holdco and its Subsidiaries for the Relevant Period (or where
Cashflow for the Securitisation Group is to be calculated, the
Securitisation Relevant Period):
(a) plus the amount of any decrease or minus the amount of any
increase in Working Capital during that Relevant Period (or where
Cashflow for the Securitisation Group is to be calculated, the
Securitisation Relevant Period);
(b) plus any Tax rebate received in cash, or minus any Tax paid in
cash, during that Relevant Period (or where Cashflow for the
Securitisation Group is to be calculated, the Securitisation
Relevant Period);
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(c) minus all Capital Expenditure during that Relevant Period (or
where Cashflow for the Securitisation Group is to be calculated,
the Securitisation Relevant Period);
(d) minus a straight line accrual in respect of the next scheduled
repayment of principal under the terms of any Financial
Indebtedness;
(e) plus the equivalent of the amount which was deducted as a straight
line accrual in respect of repayments of principal under the terms
of any Financial Indebtedness for the purposes of calculating
Cashflow for the immediately preceding Relevant Period (or in
respect of Cashflow for the Securitisation Group, the immediately
preceding Securitisation Relevant Period);
(f) plus the amount of any dividends or other profit distributions
(net of Tax) received in cash by the Parent or any of its
Subsidiaries or Jersey Holdco or any of its Subsidiaries during
the Relevant Period (or where Cashflow for the Securitisation
Group is to be calculated, the Securitisation Relevant Period)
from third party companies;
(g) minus exceptional costs other than the amount of any loss against
book value arising on a disposal of any asset (other than stock
disposed of in the ordinary course of trading); and
(h) plus exceptional income other than the amount of any gain against
book value arising on a disposal of any asset (other than stock
disposed of in the ordinary course of trading);
"CERTAIN FUNDS PERIOD" means the period commencing on the date hereof and
ending on the earliest of:
(a) the date which falls 6 months after the date of this Agreement;
(b) 14 days after the Unconditional Date; or
(c) the date on which either the Jersey Offer or the US Offer lapses
or is withdrawn,
or, if Jersey Bidco issues notices under Articles 117 and 118 of the
Companies (Jersey) Law 1991 (as amended) before the earliest of such
dates, such longer period as is necessary under such Articles to acquire
the remaining shares in the Jersey Target pursuant to such Articles;
"CERTIFICATE OF MERGER" means the Certificate of Merger filed with the
Secretary of State of Delaware;
"CLEAN UP PERIOD" means the period commencing on the Unconditional Date
and ending four months later;
"CODE" means The City Code on Takeovers and Mergers;
"COMMITMENT" means, in relation to a Lender, its Term A Commitment, its
Term B Commitment, its Term C Commitment, its Cash Bridge Commitment or
its Revolving Commitment;
"COMPLETION DATE" means the first Drawdown Date;
"COMPLIANCE CERTIFICATE" means any compliance certificate provided in
accordance with clause 20.10(e) (Compliance certificates);
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"CONSTITUTIONAL DOCUMENTS" means the constitutional documents of the
Parent and Jersey Holdco in the agreed form;
"CONTINGENT LIABILITY" means:
(a) the maximum actual and/or contingent liability of an Issuing
Lender under a Bank Guarantee at any time; or
(b) the maximum actual and/or contingent liability of a Lender in
relation to a Bank Guarantee at any time under clause 7.4(b)
(Indemnities);
"CREDITOR ACCESSION DEED" has the meaning given to it in the
Intercreditor Deed;
"CRESTACARE LOAN NOTES" means the loan notes of FSHC Holdco issued
pursuant to the Crestacare Loan Note Instrument;
"CRESTACARE LOAN NOTE HOLDER" means each holder of Crestacare Loan Notes
from time to time;
"CRESTACARE LOAN NOTE INSTRUMENT" means the loan note instrument
constituting (pound)77,661,349 guaranteed unsecured loan notes 2006 of
FSHC Holdco dated 16 July 1999;
"DEBENTURE" means a debenture in the agreed form granting fixed and
floating charges over the assets and undertaking of the relevant company
or companies in favour of the Security Agent;
"DEED OF TERMINATION" means the deed of termination to be entered into by
the shareholders of the Parent, including the Original Equity Investors,
regarding the termination of the shareholders agreement relating to the
share capital of the Parent in place immediately prior to the date of
this agreement;
"DEFAULT" means an Event of Default or a Potential Event of Default;
"DISCLOSURE LETTER" means the disclosure letter in the agreed form from
the US Target addressed to US Bidco which makes certain disclosures
against the representations and warranties given by the US Target in the
Merger Agreement;
"DOLLARS" and "$" means the lawful currency of the United States of
America;
"DORMANT COMPANY" means a Group Company which has not traded or has
ceased trading and which the Parent demonstrates to the Facility Agent's
satisfaction does not own assets or have liabilities (excluding
liabilities owed to another Group Company) in either case with an
aggregate value greater than (pound)50,000 (or its Sterling Equivalent)
or which are otherwise material to the running of the Group's business;
"DRAWDOWN DATE" means the date for the making of a Drawing, as specified
by the relevant Borrower in the relevant Drawdown Request;
"DRAWDOWN REQUEST" means a notice requesting an Advance or the issue of a
Bank Guarantee in the form set out in part 1 or 2 (as appropriate) of
schedule 5;
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"DRAWING" means a utilisation by a Borrower of a Facility (other than an
Ancillary Facility) by way of the making of an Advance or the issue of a
Bank Guarantee;
"DRAWSTOP DEFAULT" means any Event of Default arising under any of the
following provisions (but only so far as they affect or relate to the
Existing Group, Jersey Holdco, Jersey Bidco together with (in the case of
clauses 21.1(f), (g), (h)(i), (i), (j), (k), (l) and (m) only) the Target
Groups, the Excluded Fife Group and the Isle of Man Group and together
with (in the case of clauses 21.1(p) and (q) only) the Jersey Target
Group, the Excluded Fife Group and the Isle of Man Group and provided
that, for the purposes of this definition, where the relevant Event of
Default refers to Material Subsidiaries, only paragraphs (b) and (c) of
the definition of Material Subsidiaries will be relevant:
(a) clause 21.1(b) (Breach of other obligations) by virtue of a breach
of any of the undertakings in clause 20.3(c) (Negative pledge),
clause 20.5 (Borrowings), clause 20.8 (Changes to Transaction
Documents, etc.), paragraphs (d) and (e) of clause 20.11 (Jersey
Offer undertakings) or paragraphs (a), (b), (c), and (d) of clause
20.12 (US Offer Undertakings);
(b) clause 21.1(c) (Misrepresentation) by virtue of a breach of any of
the representations in clauses 19.2 (Incorporation) to 19.5 (No
contravention), 19.19(a) (Newly incorporated companies) or 19.20
(Offer Documents);
(c) clause 21.1(e) (Invalidity and Unlawfulness);
(d) clause 21.1(f) (Insolvency);
(e) clause 21.1(g) (Receivership and Administration);
(f) clause 21.1(h)(i)(Compositions and Arrangements);
(g) clause 21.1(i) (Winding up);
(h) clause 21.1(j) (US Bankruptcy Proceedings);
(i) clause 21.1(k) (Attachment or process);
(j) clause 21.1(l) (Suspension of Payments);
(k) clause 21.1(m) (Similar Events elsewhere);
(l) clause 21.1(p) (Security Interests); and
(m) clause 21.1(q) (Cross Default);
"EBITDA" means the consolidated profit of the Parent and its Subsidiaries
and of Jersey Holdco and its Subsidiaries for the Relevant Period (or,
where EBITDA for the Securitisation Group is to be calculated, the
Securitisation Relevant Period):
(a) before any deduction of corporation tax or other Taxes on income
or gains;
(b) before any deduction for FSHC Interest Payable, Target Interest
Payable and Securitisation Interest Payable;
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(c) after deducting (to the extent otherwise included) FSHC Interest
Receivable and Target Interest Receivable;
(d) excluding extraordinary items and exceptional items;
(e) after deducting (to the extent otherwise included) the amount of
profit (or adding back the amount of loss) of any of the
Subsidiaries of the Parent and any of the Subsidiaries of Jersey
Holdco) which is attributable to any third party (other than the
Parent and any of its Subsidiaries or Jersey Holdco and any of its
Subsidiaries) which is a shareholder in that Subsidiary of the
Parent or Subsidiary of Jersey Holdco;
(f) after adding back or deducting, as the case may be, the amount of
any loss or gain against book value arising on a disposal of any
asset (other than stock disposed of in the ordinary course of
trading) during that Relevant Period (or where EBITDA for the
Securitisation Group is to be calculated, the Securitisation
Relevant Period), to the extent included in arriving at EBITDA for
that Relevant Period (or where EBITDA for the Securitisation Group
is to be calculated, the Securitisation Relevant Period);
(g) before deducting amortisation of any goodwill or any intangible
assets; and
(h) before deducting any depreciation on fixed assets;
"ELECTRA SUBORDINATION DEED" means the deed of subordination dated 31
October 1996 and made between (1) Electra ▇▇▇▇▇▇▇ Private Equity
Partners, (2) The Governor and Company of the Bank of Scotland and (3)
Principal Healthcare Finance Limited;
"ELIGIBLE TRANSFEREE" means any bank, financial institution, person,
trust, fund, vehicle or other entity which is engaged in making,
purchasing or investing in loans and/or securities or which was
established for the purpose of making, purchasing or investing in loans
and/or securities and any other fund that invests in loans and is
controlled by, managed or advised by the same investment adviser;
"EMPLOYEE BENEFIT ARRANGEMENTS" means the benefit schemes or arrangements
in respect of any employees or past employees operated by any Group
Company or in which any Group Company participates and which provides
benefits on retirement, ill-health or injury, death or voluntary
withdrawal from or involuntary termination of employment, including
termination indemnity payments, life assurance arrangements and post
retirement medical benefit;
"ENVIRONMENT" means all gases, air, vapours, liquids, water, land,
surface and sub-surface soils, rock, flora, fauna, wetlands and all other
natural resources or part of such resources, including within or without
artificial or man-made buildings, structures or enclosures;
"ENVIRONMENTAL APPROVAL" means any consent required under or in relation
to Environmental Laws;
"ENVIRONMENTAL LAWS" means all international, European Union, national,
federal, state or local statutes, orders, regulations or other law or
subordinate legislation or common law or guidance notes or regulatory
codes of practice, circulars and equivalent controls including judicial
interpretation of any of the foregoing concerning the Environment or
health and safety (including without limitation regulating, relating to
or imposing liability or standards of conduct concerning Hazardous
Materials) which are in existence now or in the future and are binding at
any time on each Group Company in the relevant jurisdiction in which that
Group Company has been or is operating (including by the export of its
products or its waste to that jurisdiction);
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"ENVIRONMENTAL REPORT" means the standard environmental review carried
out by Groundsure Limited in the approved form in relation to certain of
the Key Properties owned by the Target Groups;
"EQUITY DOCUMENTS" means the Constitutional Documents, the FSHC
Investment Agreement, the PHFL Investment Agreement, the Investor Loan
Note Instruments, the Investor Loan Notes, the Deed of Termination, the
Subordinated Guarantee, the Alchemy Undertaking and all other documents
and agreements entered into in connection with any of those documents;
"EQUITY INVESTORS" means the Original Equity Investors and any assignee
or transferee of any interest in the FSHC Group or the PHFL Group under
the FSHC Investment Agreement or the PHFL Investment Agreement or of any
other rights under any Equity Document;
"ERISA" means the U.S. Employee Retirement Income Security Act of 1974
(as amended) and any rule or regulation issued thereunder;
"ERISA AFFILIATE" shall mean each business or entity which is a member of
a "controlled group of corporations," under "common control" or an
"affiliated service group" with a Group Company within the meaning of
Sections 414(b), (c) or (m) of the IR Code, or required to be aggregated
with a Group Company under Section 414(o) of the IR Code, or is under
"common control" with a Group Company, within the meaning of section
4001(a)(14) of ERISA;
"ERISA EVENT" means (i) a "reportable event" within the meaning of
Section 4043(c) of ERISA and the regulations issued thereunder with
respect to any Pension Plan (excluding those for which the provision for
30-day notice to the PBGC has been waived by regulation); (ii) the
failure to meet the minimum funding standard of Section 412 of the
Internal Revenue Code with respect to any Pension Plan (whether or not
waived in accordance with Section 412(d) of the Internal Revenue Code) or
the failure to make by its due date a required instalment under Section
412(m) of the Internal Revenue Code with respect to any Pension Plan or
the failure to make any required contribution to a Multiemployer Plan;
(iii) the provision by the administrator of any Pension Plan pursuant to
Section 4041(a)(2) of ERISA of a notice of intent to terminate such plan
in a distress termination described in Section 4041(c) of ERISA; (iv) the
withdrawal by a Group Company, any of its Subsidiaries or any of their
respective ERISA Affiliates from any Pension Plan with two or more
contributing sponsors or the termination of any such Pension Plan
resulting in liability pursuant to Section 4063 or 4064 of ERISA; (v) the
institution by the PBGC of proceedings to terminate any Pension Plan, or
the occurrence of any event or condition which will constitute grounds
under ERISA for the involuntary termination of, or the appointment of a
trustee by the PBGC to administer, any Pension Plan; (vi) the imposition
of liability on a Group Company, any of its Subsidiaries or any of their
respective ERISA Affiliates pursuant to Section 4062(e) or 4069 of ERISA
or by reason of the application of Section 4212(c) of ERISA; (vii) the
withdrawal of a Group Company, any of its Subsidiaries or any of their
respective ERISA Affiliates in a complete or partial withdrawal (within
the meaning, of Sections 4203 and 4205 of ERISA) from any Multiemployer
Plan if there is any potential liability therefor, or the receipt by a
Group Company, any of its Subsidiaries or any of their respective ERISA
Affiliates of notice from any Multiemployer Plan that it is in
reorganisation or insolvency pursuant to Section 4241 or 4245 of ERISA,
or that it intends to terminate or has terminated under Section 4041 C or
4042 of ERISA; (viii) the assertion of a material claim (other than
routine claims for benefits) against any Pension Plan other than a
Multiemployer Plan or the assets thereof, or against a Group Company, any
of its Subsidiaries or any of their respective ERISA Affiliates in
connection with any Pension Plan; (ix) receipt from the Internal Revenue
Service of notice of the failure of any Pension Plan (or any other
Employee Benefit Arrangement intended to be qualified under Section
401(a) of the Internal Revenue Code) to qualify under Section 401(a) of
the Internal Revenue Code, or the failure of any trust forming part of
any
-10-
Pension Plan to qualify for exemption from taxation under Section 501(a)
of the Internal Revenue Code; or (x) the imposition of a Lien pursuant to
Section 401(a)(29) or 412(n) of the Internal Revenue Code or pursuant to
ERISA with respect to any Pension Plan;
"EURIBOR" means in relation to any Advance or overdue amount:
(a) the rate per annum equal to the offered quotation which appears on
Telerate Screen page 248 (or any replacement page on that service)
(the "TELERATE SCREEN RATE"), or
(b) if no Telerate Screen Rate is available for the relevant period,
the arithmetic mean (rounded upward to four decimal places) of the
rates supplied to the Facility Agent at its request, quoted to the
Reference Lenders by leading banks in the European interbank
market,
in both cases at or about 11.00 am (Central European Time) on the
applicable Rate Fixing Day for the currency of the relevant Advance or
overdue amount for a period comparable to its Interest Period.
PROVIDED ALWAYS THAT if any of the Reference Lenders fails to supply any
such offered rate to the Facility Agent upon request on the required
date, "EURIBOR" for the relevant Interest Period (if determined pursuant
to paragraph (b) above) shall be determined on the basis of the
quotations of the remaining Reference Lenders save that if fewer than two
Reference Lenders are able to provide a quotation the provisions of
clause 10 (Market Disruption) shall apply;
"EURO" and "(EURO SYMBOL)" means the single currency of Participating
Member States of the European Union;
"EVENT OF DEFAULT" means any event specified in clause 21.1 (List of
events);
"EXCESS CASHFLOW" means (a) Surplus Cashflow of each of the Excluded
Groups for a Relevant Period (or, in the case of the Securitisation
Group, for the Securitisation Relevant Period) to the extent it has been
transferred to Obligors in accordance with clause 20.5(f) (Upstreaming)
plus (b) Cashflow for the Relevant Period to the extent it is
attributable to Group Companies less (c) Total Debt Service for that
Relevant Period to the extent that Total Debt Service is attributable to
Group Companies;
"EXCLUDED COMPANIES" means each member of an Excluded Group;
"EXCLUDED GROUPS" means:
(a) the Isle of Man Group;
(b) the Securitisation Group;
(c) the Idun Group (but excluding those members of the Idun Group
listed in part 2 of Schedule 9 other than Idun Health Care Limited
(registered no. 3863850) for this purpose);
(d) the Australian Group; and
(e) the Excluded Fife Group;
"EXCLUDED FIFE GROUP" means, until the Fife Loan Repayment, Fife Health
Care Limited (registered no. SC145196) and its Subsidiaries, and
thereafter Cotswold Spa Retirement Hotels Limited (registered no.
3047890), Acegold Limited (registered no. 3484784), Roseguard Limited
(registered no. 4397089), Grandcross Limited (registered no. 3488922),
Fife Developments Limited (registered
-11-
no. SC110400), Fife Nursing Services Limited (registered no. SC125362)
and Mericourt Limited (registered no. 3633551) and their Subsidiaries
from time to time;
"EXISTING GROUP" means the FSHC Group immediately prior to the
acquisitions of the Target Groups;
"EXISTING JOINT VENTURE DOCUMENTS" means each of the documents setting
out the terms of the Existing Joint Ventures;
"EXISTING JOINT VENTURES" means the following joint ventures in place at
the date of this agreement:
(a) the joint venture between the Jersey Target and ▇▇▇▇▇▇▇ Healthcare
Protected VCT plc by which the Jersey Target holds a 50 per cent.
interest in Evedale Care Home Limited;
(b) the joint venture between the Jersey Target and certain
individuals by which the Jersey Target owns 47.4 per cent. of the
issued share capital in The Focus Assessment and Rehabilitation
Service Limited;
(c) the joint venture between the US Target and ▇▇▇▇▇ Travel Pty Ltd
by which the US Target owns 19.9 per cent. of the issued share
capital in ▇▇▇▇▇ Health Care (UK) Limited;
(d) the joint venture between US Target and certain individuals by
which US Target holds an interest in Bedale Pharmacy Limited; and
(e) the joint venture between the US Target and Dunedin Independent
Limited by which the US Target holds an interest in Dunedin
Lifecare Limited;
"EXISTING LOANS AND SECURITY MEMORANDUM" means the memorandum prepared by
the Parent in the agreed form setting out certain Financial Indebtedness,
Security Interests, guarantees and loans of the Existing Group, the
Excluded Fife Group, the Isle of Man Group and Target Groups;
"FACILITIES" means the Term Facilities, the Cash Bridge Facility, the
Revolving Facility and the Ancillary Facilities;
"FEES LETTERS" means the Agency Fees Letter and the Arranger's Fees
Letter;
"FIFE GROUP" means Fife Health Care Limited, a company incorporated in
Scotland with registered number SC145196, and its Subsidiaries from time
to time;
"FIFE LOAN" means the term loan of up to (pound)1,656,250 made pursuant
to a loan agreement dated 16 July 1999 between (1) The Governor and
Company of the Bank of Scotland as lender and (2) Four Seasons Health
Care Plc (now known as Fife Health Care Limited) as borrower;
"FIFE LOAN REPAYMENT" means the repayment in full of the Fife Loan;
"FIFE OBLIGORS" means Fife Health Care Limited, a company incorporated in
Scotland with registered number SC145196 and Fife Nursing Homes Limited,
a company incorporated in Scotland with registered number SC079484;
"FINANCE PARTIES" means the Arranger, each Agent, each Lender, each
Ancillary Lender, each Issuing Lender and each Hedging Lender;
-12-
"FINANCIAL ASSISTANCE RESOLUTIONS" means the board and shareholder
resolutions in the agreed form relating to the financial assistance
procedures to be undertaken by the Jersey Target and the Jersey Target
Subsidiaries in accordance with this agreement subject to such amendments
thereto as the Facility Agent may reasonably require in order that such
documents may conform with accepted practice having regard to the
circumstances prevailing at the time such resolutions are made;
"FINANCIAL INDEBTEDNESS" means (without double counting) any indebtedness
in relation to or arising under or in connection with:
(a) any money borrowed (including any overdraft);
(b) any debenture, bond (other than a performance bond issued in the
ordinary course of trading by one Group Company in relation to the
obligations of another Group Company), note or loan stock or other
similar instrument;
(c) any acceptance or documentary credit;
(d) any receivable sold or discounted (otherwise than on a
non-recourse basis);
(e) the purchase price of any asset or service to the extent payable
by a Group Company after the time of sale or delivery to a Group
Company, where the deferred payment is:
(i) arranged as a method of raising finance; or
(ii) paid more than six months after the sale or delivery date;
(f) the sale price of any asset or service to the extent paid before
the time of sale or delivery by the Group Company liable to effect
that sale or delivery, where the advance payment is arranged as a
method of raising finance;
(g) any finance lease, hire purchase, credit sale or conditional sale
agreement;
(h) for the purpose of clause 21.1(o) (Cross default) only, Hedging
Instruments;
(i) any amount payable by any Group Company in relation to the
redemption of any share capital or other securities issued by it
or any other Group Company, other than amounts payable to another
Obligor;
(j) any amount raised under any other transaction having the
commercial effect of a borrowing or treated as borrowings under
the Approved Accounting Principles; or
(k) any guarantee of indebtedness of any person of a type referred to
in paragraphs (a) to (j) (inclusive) above;
"FINANCIAL PERIOD" means:
(a) in respect of the PHFL Group and the Securitisation Group and
Alliance Care (Trendlewood) Limited (registered no. 3650305), the
period of 12 months ending on 31 August 2002 followed by the
period of 16 months ending on 31 December 2003 and thereafter each
period of 12 months ending on 31 December in each year;
-13-
(b) in respect of the Idun Group, the period of 12 months ending on 31
August 2002 followed by the period of 12 months ending on 31
August 2003 followed by the period of 4 months ending on 31
December 2003 and thereafter each period of 12 months ending on 31
December in each year;
(c) in respect of the US Target Group (excluding the Idun Group), the
period of 12 months ending on 30 September 2002 followed by the
period of 12 months ending on 30 September 2003 followed by the
period of 3 months ending on 31 December 2003 and thereafter each
period of 12 months ending on 31 December in each year; and
(d) in respect of the Existing Group (excluding the Fife Obligors),
the Isle of Man Group and the Fife Group, each period of 12 months
ending on 31 December in each year,
or such other period or periods as the Facility Agent may agree (acting
reasonably);
"FIRST SECURITISATION" means the securitisation of certain of the rental
receivables of PHF Securities No.1 more particularly set out in the First
Securitisation Offering Circular;
"FIRST SECURITISATION GROUP" means PHF Reversions No.1, PHF Securities
No. 1, PHF Investments and PHF Investments Holding;
"FIRST SECURITISATION DOCUMENTS" means the documents referred to in the
First Securitisation Offering Circular setting out the terms of the First
Securitisation;
"FIRST SECURITISATION OFFERING CIRCULAR" means the offering circular
dated 12 December 1997 prepared by the PHF Securities No.1 which sets out
the terms of the First Securitisation;
"FIRST US MERGER" means the merger of US Bidco with and into US Target in
accordance with the Merger Agreement, with US Target being the surviving
corporation;
"FORMALITIES CERTIFICATE" means a certificate in the agreed form or with
such amendments thereto as the Facility Agent may reasonably require
having regard to the circumstances affecting any particular Group
Company;
"FSHC EXISTING INVESTOR LOAN NOTES" means the loan notes of FSHC
Investments issued pursuant to the FSHC Existing Investor Loan Note
Instruments;
"FSHC EXISTING INVESTOR LOAN NOTE INSTRUMENTS" means each of the
following:
(a) the loan note instrument constituting (pound)44,412,500 of
discounted unsecured A loan notes 26 August 2005 of FSHC
Investments dated 26 August 1999;
(b) the loan note instrument constituting (pound)2,501,550 of
discounted unsecured A loan notes 26 August 2005 of FSHC
Investments dated 12 March 2001;
(c) the loan note instrument constituting (pound)2,887,600 discounted
unsecured loan notes 26 August 2005 of FSHC Investments dated 27
June 2001;
(d) the loan note instrument constituting (pound)4,000,000 of
discounted unsecured B loan notes 26 August 2005 of FSHC
Investments dated 26 August 1999; and
-14-
(e) the loan note instrument constituting (pound)403,762.11 of fixed
rate unsecured C loan notes 2005 of FSHC Investments dated 21
August 2000;
"FSHC GROUP" means the Parent and its Subsidiaries from time to time
excluding:
(a) the Isle of Man Group;
(b) the Australian Group;
(c) the Idun Group (but excluding those members of the Idun Group
listed in part 2 of Schedule 9 other than Idun Health Care Limited
(registered no. 3863850) for this purpose); and
(d) the Excluded Fife Group;
"FSHC GROUP COMPANY" means a member of the FSHC Group;
"FSHC INTEREST PAYABLE" has the meaning given to it in clause 20.15
(Financial definitions);
"FSHC INTEREST RECEIVABLE" has the meaning given to it in clause 20.15
(Financial definitions);
"FSHC INVESTMENTS" means Four Seasons Healthcare Investments Limited, a
company incorporated in England and Wales with Company No 3782943;
"FSHC INVESTMENT AGREEMENT" means the shareholders' agreement in the
agreed form dated on or before the date of this agreement between,
amongst others, the Parent and the Original Equity Investors providing,
amongst other things, for the Original Equity Investors to make a further
investment in, amongst others, the Parent;
"FSHC NEW INVESTOR LOAN NOTE INSTRUMENT" means the loan note instrument
in the agreed form constituting the FSHC New Investor Loan Notes;
"FSHC NEW INVESTOR LOAN NOTES" means the (pound)43,120,000 discounted
subordinated unsecured guaranteed A3 loan notes of FSHC Investments to be
issued pursuant to the FSHC New Investor Loan Note Instrument;
"FSHC QUARTERLY ACCOUNTS" means the quarterly consolidated management
accounts of the Parent and its Subsidiaries delivered or to be delivered
to the Facility Agent under clause 20.10(c)(ii) (Financial Statements);
"GROUP" means the FSHC Group and the PHFL Group;
"GROUP COMPANY" means a member of the Group;
"GUARANTORS" means the Group Companies listed in schedule 3 and each
other Group Company which becomes a guarantor under this agreement in
accordance with clause 18.3 (Additional Guarantors) or clause 20.11(g)
(Provision of Target security) or clause 20.12(f) (US Target Group
Guarantees and Security);
"HAZARDOUS MATERIALS" means any substance: (i) which is or becomes
defined as a "hazardous waste", "hazardous substance", "radioactive
waste", "biohazardous waste", "infectious waste", "toxic substance",
pollutant or contaminant (or any other term or expression intended to
define, list or classify
-15-
substances by reason of properties harmful to health, safety or the
Environment (including harmful properties such as ignitability,
corrosivity, reactivity, carcinogenicity, toxicity, reproductive toxicity
or words of similar import under any applicable Environmental Law)) under
any US federal, state or local statute, regulation, rule or ordinance or
amendments thereto including, without limitation, the US Comprehensive
Environmental Response, Compensation and Liability Act (42 U.S.C. Section
9601 et seq.) and/or the US Resource Conversation and Recovery Act (42
U.S.C. Section 6901 et seq.); or (2) without limitation, which is or
contains petroleum and petroleum products (including crude oil or any
fraction thereof); drilling fluids, produced waters and other wastes
associated with the exploration, development or production of crude oil,
natural gas or geothermal resources; any flammable substances or
explosives; any radioactive materials; pesticides; polychlorinated
biphenyls; asbestos; urea formaldehyde foam insulation; radon gas,
infectious materials; or any other chemical, material or substance,
exposure to which is prohibited, limited or regulated by any governmental
authority or which may or could pose a hazard to the health and safety of
any persons or to the indoor or outdoor Environment;
"HEDGING AGREEMENTS" means any instrument and/or agreement entered into
by a Group Company with the Hedging Lenders in accordance with clause
20.5(d) (Hedging) for the purpose of managing or hedging currency and/or
interest rate risk in relation to the Facilities;
"HEDGING INSTRUMENT" means any forward rate agreement, option, swap, cap,
floor, any combination or hybrid of the foregoing and any other financial
derivative agreement;
"HEDGING LENDER" means a Lender (or an Affiliate of a Lender) in its
capacity as provider of currency and/or interest rate hedging under any
Hedging Agreement;
"HOLDING COMPANY" means a holding company as defined in section 736 of
the Companies ▇▇▇ ▇▇▇▇ but excluding any of the Original Equity
Investors;
"HUNTERCOMBE ROEHAMPTON DEVELOPMENT" means the development of land and
buildings at Huntercombe Roehampton, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇;
"HUNTERCOMBE STAFFORDSHIRE DEVELOPMENT" means the development of land and
buildings at Huntercombe Staffordshire, Ivetsey Bank, Wheaton Aston,
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇;
"IDUN GROUP" means Idun Health Care Limited, a company incorporated in
England and Wales with registered number 3863850 and each of its
Subsidiaries from time to time;
"IDUN SECURITY COMPANIES" means those members of the Idun Group, other
than Idun Heath Care Limited (registered no. 3863850), which have entered
into a Security Document;
"INFORMATION PACK" means the document prepared by the Parent comprising:
(a) diagrams of the Existing Group, the Excluded Fife Group, the Isle
of Man Group, the Jersey Target Group and the US Target Group as
at the date of this agreement and as they are anticipated to be
immediately after the Unconditional Date;
(b) corporate details and the most recent audited consolidated balance
sheets of the Target Groups;
(c) details of all banking facilities to which each member of the FSHC
Group and the PHFL Group is a party, all bank accounts maintained
by it and all guarantees and security interests
-16-
granted by it together with details of the anticipated movements
of funds in repayment of existing facilities of the Existing Group
and Target Groups which will take place on, or within 10 Business
Days after the Unconditional Date;
(d) details of the Financial Indebtedness of each member of the
Existing Group, the Excluded Fife Group, the Isle of Man Group and
the Target Groups;
(e) details of the anticipated sources of funds for the purposes of
the Jersey Offer and the US Offer;
(f) details of a schedule of fees incurred or estimated to be incurred
in connection with the Offers; and
(g) details of the Properties as at the date of this agreement;
"INITIAL US PURCHASE DATE" means the date (which shall be a Business Day)
of the initial purchase of US Target Shares pursuant to the US Offer,
which shall be the date on which not less than the Minimum Number of US
Target Shares are accepted for payment by US Bidco pursuant thereto;
"INSURANCE BROKERS' LETTERS" means the letters in the approved form from
SBJ Stephensons Limited and AON in relation to the insurances maintained
by the Group;
"INTEGRATION PLAN" means the integration plan prepared by the Parent in
the agreed form detailing the proposed business integration of the Group
following the Unconditional Date;
"INTELLECTUAL PROPERTY" means the Intellectual Property Rights owned or
used by Group Companies throughout the world or the interests of any
Group Company in any of those Intellectual Property Rights, together with
the benefit of all agreements entered into or the benefit of which is
enjoyed by any Group Company relating to the use or exploitation of any
of those Intellectual Property Rights;
"INTELLECTUAL PROPERTY RIGHTS" means all patents and patent applications,
trade and service marks and trade and/or service ▇▇▇▇ applications (and
all goodwill associated with any such applications), all brand and trade
names, all copyrights and rights in the nature of copyright, all design
rights, all registered designs and applications for registered designs,
all trade secrets, know-how and all other intellectual property rights;
"INTERCREDITOR DEED" means the intercreditor deed dated on or about the
date of this agreement and entered into between, amongst others, each of
the parties to the Senior Finance Documents and each of the Original
Equity Investors;
"INTEREST PERIOD" means a period by reference to which interest is
calculated and payable on an Advance or overdue amount;
"INTERNAL REVENUE CODE" or "IR CODE" means the US Internal Revenue Code
of 1986, as amended to the date hereof and from time to time hereafter,
including the regulations promulgated thereunder;
"INVESTOR LOAN NOTE INSTRUMENTS" means the FSHC Existing Investor Loan
Note Instruments, the FSHC New Investor Loan Note Instrument and the
Alchemy Undertaking Investor Loan Note Instrument;
-17-
"INVESTOR LOAN NOTES" means the FSHC Existing Investor Loan Notes, the
FSHC New Investor Loan Notes and the Alchemy Undertaking Investor Loan
Notes;
"ISLE OF MAN LOAN AGREEMENTS" means the loan agreements entered into by
the Isle of Man Group which are set out in the Information Pack;
"ISLE OF MAN GROUP" means the Four Seasons Group Limited, an Isle of Man
company with registered number 1637 and its Subsidiaries;
"ISSUING LENDER" means any Lender in its capacity as issuer of a Bank
Guarantee;
"JERSEY APPROVAL" means the approval from the Jersey Financial Services
Commission of the acquisition of the Jersey Target Shares pursuant to the
Jersey Offer;
"JERSEY BIDCO" means Principal Healthcare Finance Investments (Guernsey)
Limited, a company incorporated in Guernsey with registered number 39730;
"JERSEY CODE OFFER" means the offer proposed to be made by Jersey Bidco
in accordance with the Code on the terms set out in the Jersey Code Offer
Document to acquire the whole of the ordinary share capital and warrants
of the Jersey Target not already owned by Jersey Bidco or US Target as
such offer may from time to time be amended, increased, revised or
waived, as permitted in accordance with the terms of this agreement;
"JERSEY CODE OFFER DOCUMENT" means the document (substantially in the
agreed terms subject to such amendments as the Facility Agent shall
approve in writing) to be sent to shareholders of the Jersey Target
containing the formal Jersey Code Offer;
"JERSEY HOLDCO" means Principal Healthcare Finance Holdings (Guernsey)
Limited, a company registered in Guernsey with registered number 39653;
"JERSEY NON-CODE OFFER" means the offer proposed to be made by Jersey
Bidco under terms set out in the Jersey Non-Code Offer Document to
acquire the whole of the ordinary share capital and warrants of the
Jersey Target not already owned by Jersey Bidco or US Target as such
offer may from time to time be amended, increased, revised or waived, as
permitted in accordance with the terms of this Agreement;
"JERSEY NON-CODE OFFER DOCUMENT" means the document (substantially in the
agreed terms subject to such amendments as the Facility Agent shall
approve in writing) to be sent to the shareholders of the Jersey Target
containing the formal Jersey Non-Code Offer;
"JERSEY OFFER" means the Jersey Code Offer or the Jersey Non-Code Offer
as the case may be;
"JERSEY TARGET" means Principal Healthcare Finance Limited a company
incorporated in Jersey with registered number 62304;
"JERSEY TARGET GROUP" means the Jersey Target and all its Subsidiaries;
"JERSEY TARGET SHARES" means the shares in the Jersey Target;
"JERSEY TARGET SUBSIDIARIES" means each of the companies listed in part 2
of schedule 9 which are incorporated in Jersey;
-18-
"KEY EXECUTIVE" means ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇;
"KEY EXECUTIVE POLICY" means the insurance policy effected or to be
effected by the Parent in relation to the life of the Key Executive, for
cover for (pound)1,000,000 for death and disability for a term of 3
years, in accordance with clause 20.6(a)(ii) (Insurance);
"KEY PROPERTIES" means the Properties listed in part 3 of Schedule 9;
"KPMG SECURITISATION PAPER" means the paper prepared by KPMG in a form
agreed with the Facility Agent dated on or about the date of this
agreement setting out certain arrangements which exist between
Securitisation Group Companies and PHFL Group Companies;
"KPMG STRUCTURE PAPER" means the structure paper prepared by KPMG in a
form agreed with the Facility Agent dated on or about the date of this
agreement;
"LEAD EQUITY INVESTORS" means limited partnerships managed by Alchemy
Partners (Guernsey) Limited (and the nominee company of those limited
partnerships, being currently Alchemy Partners Nominees Limited);
"LEGAL REPORT" means the legal report (including a report on pensions) in
the approved form prepared by Macfarlanes, White & Case, ▇▇▇▇▇▇▇▇ Fox and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ in relation to the Target Groups;
"LENDERS" means the Term A Lenders, the Term B Lenders, the Term C
Lenders, the Cash Bridge Lenders and the Revolving Lenders;
"LENDING OFFICE" means the office through which a Lender is acting for
the purposes of this agreement, which, subject to clause 3.2 (Lending
Office), will be the office set opposite the name of that Lender in
schedule 1 (or in any relevant Transfer Certificate);
"LIBOR" means in relation to any Advance or overdue amount
(a) the rate per annum equal to the offered quotation which appears on
Telerate Screen page 3750 or (as appropriate) 3740 (or any
replacement pages on that service) (the "SCREEN RATE"); or
(b) if no Screen Rate is available for the relevant currency and
period, the arithmetic mean (rounded upward to four decimal
places) of the rates supplied to the Facility Agent at its
request, quoted to the Reference Lenders by leading banks in the
London interbank market,
in both cases at or about 11.00 am (London time) on the applicable Rate
Fixing Day for the currency of the relevant Advance or overdue amount for
a period comparable to its Interest Period.
PROVIDED ALWAYS THAT if any of the Reference Lenders fails to supply any
such offered rate to the Facility Agent upon request on the required date
"LIBOR" for the relevant Interest Period (if determined pursuant to
paragraph (b) above) shall be determined on the basis of the quotations
of the remaining Reference Lenders save that if fewer than two Reference
Lenders are able to provide a quotation the provisions of clause 10
(Market Disruption) shall apply;
"MAJORITY LENDERS" means, at any time:
-19-
(a) Lenders whose aggregate Commitments at that time aggregate more
than 66 per cent. of the Total Commitments at that time; or
(b) if the Total Commitments have at that time been reduced to zero,
Lenders whose Commitments aggregated more than 66 per cent. of
the Total Commitments immediately before the relevant reduction;
"MANAGEMENT ACCOUNTING PERIOD" means each period of four or five weeks
adopted by the Parent for the purpose of its management accounts and by
Jersey Holdco for the purpose of its management accounts;
"MANDATORY COST" means the percentage rate per annum calculated by the
Facility Agent in accordance with schedule 8 (Mandatory Cost Formulae);
"MARGIN" means:
(a) in relation to the Term A Facility, 2.25 per cent. per annum,
subject to clause 8.6 (Margin adjustment);
(b) in relation to the Term B Facility, 2.75 per cent. per annum;
(c) in relation to the Term C Facility, 5.00 per cent. per annum;
(d) in relation to the Cash Bridge Facility, 1.75 per cent. per annum;
and
(e) in relation to the Revolving Facility, 2.25 per cent. per annum,
subject to clause 8.6 (Margin adjustment);
"MATERIAL ADVERSE EFFECT" means any effect, event or matter:
(a) which is materially adverse to:
(i) the assets or financial condition of the Group (taken as a
whole);
(ii) the ability of the Obligors to perform their payment
obligations under any Senior Finance Document or their
obligations under clause 20.14 (Financial covenants) of
this agreement; or
(b) which results in any Security Document not providing to the
Security Agent security over the assets expressed to be secured
under that Security Document;
"MARGIN STOCK" has the meaning assigned to that term in Regulation U of
the Board of Governors of the Federal Reserve System as in effect from
time to time;
"MATERIAL EXCLUDED COMPANY" means:
(a) an Excluded Company the gross assets, gross revenues or EBITDA of
which (consolidated where that Excluded Company itself has
Subsidiaries) as at the date at which its latest audited
consolidated financial statements were prepared or, as the case
may be, for the financial period to which those financial
statements relate account for 5 per cent or more of the
consolidated gross assets, gross revenues or EBITDA of all the
Excluded Companies (all as calculated by
-20-
reference to the latest audited consolidated financial statements
of the Excluded Companies); or
(b) an Excluded Company to which has been transferred (whether in a
single transaction or a series of transactions (whether related or
not) the whole or substantially the whole of the assets of a Group
Company which immediately prior to such transactions was a
Material Subsidiary or of an Excluded Company which immediately
prior to such transactions was a Material Excluded Company.
For the purposes of this definition:
(i) if an Excluded Company becomes a Material Excluded Company
under paragraph (b) above, then the Material Excluded
Company or Material Subsidiary by which the relevant
transfer was made shall, subject to paragraph (a) above,
cease to be a Material Subsidiary or Material Excluded
Company, as the case may be; and
(ii) if an Excluded Company is acquired by the Parent or by
Jersey Holdco or any Group Company or other Excluded
Company after the end of the financial period to which the
latest audited consolidated financial statements of the
Excluded Companies relate, those financial statements shall
be adjusted as if that Excluded Company had been shown in
them by reference to its then latest audited financial
statements (consolidated if appropriate) until audited
consolidated financial statements of the Group for the
financial period in which the acquisition is made have been
prepared;
"MATERIAL INTELLECTUAL PROPERTY" means any Intellectual Property which is
material to the business of any Group Company or to the business of the
Group as a whole from time to time;
"MATERIAL SUBSIDIARY" means:
(a) any Obligor; or
(b) a Group Company the gross assets, gross revenues or EBITDA of
which (consolidated where that Group Company itself has
Subsidiaries) as at the date at which its latest audited
consolidated financial statements were prepared or, as the case
may be, for the financial period to which those financial
statements relate account for 5 per cent or more of the
consolidated gross assets, gross revenues or EBITDA of the Group
(all as calculated by reference to the latest audited consolidated
financial statements of the Group); or
(c) a Group Company to which has been transferred (whether in a single
transaction or a series of transactions (whether related or not)
the whole or substantially the whole of the assets of a Group
Company which immediately prior to such transactions was a
Material Subsidiary.
For the purposes of this definition:
(i) if a Group Company becomes a Material Subsidiary under
paragraph (c) above, then the Material Subsidiary by which
the relevant transfer was made shall, subject to paragraph
(a) above, cease to be a Material Subsidiary; and
(ii) if a Group Company is acquired by the Parent or by Jersey
Holdco or any Group Company after the end of the financial
period to which the latest audited consolidated financial
statements of the Group relate, those financial statements
shall be adjusted as
-21-
if that Group Company had been shown in them by reference
to its then latest audited financial statements
(consolidated if appropriate) until audited consolidated
financial statements of the Group for the financial period
in which the acquisition is made have been prepared;
"MATURITY DATE" means the last day of the Interest Period for a Revolving
Advance;
"MERGER AGREEMENT" means the Agreement and Plan of Merger between the
Parent, US Bidco and US Target in the agreed form, as such agreement may
be amended from time to time to the extent permitted under Clause 20.8
(Transaction Document undertakings);
"MINIMUM NUMBER OF US TARGET SHARES" means that number of validly
tendered US Target Shares accepted for payment by US Bidco pursuant to
the US Offer such that US Bidco shall own not less than a majority of
each outstanding class of US Target Shares, determined on the date of
purchase on a fully diluted basis, after giving effect to the exercise of
any warrants, rights, options or conversion privileges or similar rights;
"MONTHLY ACCOUNTS" means the monthly consolidated management accounts of
the Parent and the monthly consolidated management accounts of Jersey
Holdco delivered or to be delivered to the Facility Agent under clause
20.10(c)(iii) (FSHL Financial Statements) and clause 20.10(d)(iii) (PHFL
Financial Statements);
"MULTIEMPLOYER PLAN" means a Plan that is a "multiemployer plan" as
defined in Section 3(37) or 4001(a)(3) of ERISA;
"NATIONAL CURRENCY UNIT" has the meaning given to it in council
Regulation EC No. 1103/97 of 17 June, 1997 made under Article 235 of the
Treaty on European Union;
"NET PROCEEDS" means the aggregate consideration received by any Group
Company in relation to the disposal or of all or any part of the assets
of any Group Company (including the amount of any inter-company debt of
any Group Company disposed of which is repaid in connection with that
disposal), but after deducting all Taxes and other reasonable costs and
expenses incurred by continuing Group Companies in connection with that
disposal;
"OBLIGORS" means the Parent, each Borrower and each Guarantor (other than
Idun Health Care Limited and Four Seasons Group Limited);
"OFFER COSTS" means all costs, fees and expenses (and Taxes thereon) and
all stamp, documentary, registration or similar taxes and duties payable
by or incurred by or on behalf of the Parent, FSHC Holdco, FSHC
Investments, Jersey Bidco and US Bidco and/or any member of the Target
Groups in connection with the Offers including, without limitation, the
preparation, negotiation and entry into of the necessary financing
documents and all other documentation in relation to the Offers including
those incurred in connection with the exercise of a Group Company's
rights under Articles 117 and 118 of the Companies (Jersey) Law 1991(as
amended);
"OFFER DOCUMENTS" means the US Offer Document and either the Jersey Code
Offer Document if the Jersey Code Offer has been made or the Jersey Non
Code Offer Document if the Jersey Non Code offer has been made;
"OFFERS" means the Jersey Offer and the US Offer;
-22-
"OFFER TO PURCHASE" means US Bidco's Offer to Purchase the issued and
outstanding US Target Shares made pursuant to the Merger Agreement;
"OHI" means Omega Healthcare Investors, Inc., a corporation organised
under the laws of
Maryland;
"OPERATING BUDGET" means a budget, in such form and content as the
Facility Agent shall reasonably require, comprising projected balance
sheet, projected profit and loss account and projected cashflow statement
(including details of projected Capital Expenditure) for each of the PHFL
Group, the Securitisation Group, Alliance Care (Trendlewood) Limited, the
Idun Group, the US Target Group, the Existing Group, the Isle of Man
Group and the Excluded Fife Group for each relevant Financial Period,
delivered under clause 20.10 (Information and accounting undertakings);
"OPTION AGREEMENT" means the Share Option Agreement amongst Parent and US
Target in the agreed form, as such agreement may be amended from time to
time to the extent permitted under clause 20.8 (Transaction Document
Undertakings);
"OPTIONAL CURRENCIES" means Euros, Dollars and any other currency which
the Facility Agent has confirmed to the Parent is freely available in the
London foreign exchange market;
"ORIGINAL AUDITED ACCOUNTS" means:
(a) the audited consolidated annual accounts of the US Target Group
for the financial year ending 30 September 2001;
(b) the audited consolidated annual accounts of the Jersey Target
Group for the financial year ending 31 August 2001; and
(c) the audited consolidated annual accounts of the Parent for the
financial year ending 31 December 2000;
"ORIGINAL EQUITY INVESTORS" means the Lead Equity Investors and the Key
Executive;
"ORIGINAL MANAGEMENT ACCOUNTS" means:
(a) the unaudited consolidated accounts of the US Target Group for the
Accounting Quarter ending 31 March 2002;
(b) the unaudited accounts of the Jersey Target Group for the
Accounting Quarter ending 28 February 2002; and
(c) the unaudited consolidated accounts of the Parent for the
Management Accounting Period ending 31 March 2002;
"ORIGINAL STERLING AMOUNT" means:
(a) in the case of a Drawing in Sterling, the amount of that Drawing;
or
(b) in the case of a Drawing in an Optional Currency, the Sterling
Equivalent of that Drawing calculated two Business Days before its
Drawdown Date;
"PANEL" means The Panel on Takeovers and Mergers;
-23-
"PARENT COMPANY" has the meaning given to it in Section 258(1) of the
Companies ▇▇▇ ▇▇▇▇;
"PARTICIPATING MEMBER STATES" has the meaning given to it in council
Regulation EC No. 1103/97 of 17 June, 1997 made under Article 235 of the
Treaty on European Union;
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
thereto;
"PENSION PLAN" means any Employee Benefit Arrangement, other than a
Multiemployer Plan, which is subject to (i) Section 412 of the US
Internal Revenue Code, or (ii) Section 302 of ERISA;
"PHF INVESTMENTS" means PHF Investments Limited, a company incorporated
in Jersey with registered number 69769;
"PHF INVESTMENTS HOLDING" means PHF Investments Holding Limited, a
company incorporated in Jersey with registered number 69768;
"PHF INVESTMENTS HOLDING NO. 2" means PHF Investments Holding No. 2
Limited, a company incorporated in Jersey with registered number 73701;
"PHF PROPERTY" means PHF Property Leasing Limited, a company incorporated
in Jersey with registered number 70684;
"PHF REVERSIONS NO. 1" means PHF Reversions No. 1 Limited, a company
incorporated in Jersey with registered number 70264;
"PHF REVERSIONS NO. 2 " means PHF Reversions No. 2 Limited, a company
incorporated in Jersey with registered number 70613;
"PHF REVERSIONS NO. 3" means PHF Reversions No. 3 Limited, a company
incorporated in Jersey with registered number 72831;
"PHF SECURITIES NO. 1" means PHF Securities No. 1 Limited, a company
incorporated in Jersey with registered number 69767;
"PHF SECURITIES NO. 2" means PHF Securities No. 2 Limited, a company
incorporated in Jersey with registered number 70526;
"PHF SECURITIES NO. 3" means PHF Securities No. 3 Limited, a company
incorporated in Jersey with registered number 72851;
"PHFL GROUP" means Jersey Holdco and its Subsidiaries from time to time
excluding the Securitisation Group and Alliance Care (Trendlewood)
Limited (registered no. 3650305);
"PHFL GROUP COMPANY" means a member of the PHFL Group;
"PHFL INVESTMENT AGREEMENT" means the shareholders' agreement in the
agreed form dated on or before the date of this agreement between,
amongst others, the Original Equity Investors providing, amongst other
things, for the subscription of shares in Jersey Holdco;
-24-
"PHFL QUARTERLY ACCOUNTS" means the quarterly consolidated management
accounts of Jersey Holdco and its Subsidiaries delivered or to be
delivered to the Facility Agent under clause 20.10(d)(ii) (Financial
Statements);
"PLAN" means an employee pension benefit plan which is covered by Title
IV of ERISA or subject to the minimum funding standards under Section 412
of the IR Code maintained by or contributed to by any Group Company or
any ERISA Affiliate;
"POTENTIAL EVENT OF DEFAULT" means an event which, with the giving of
notice, the lapse of time, the making of any determination or the
fulfilment of any other condition (in each case as specified in clause
21.1) will, or could reasonably be expected to, constitute an Event of
Default;
"PROPERTIES" means all freehold and leasehold property from time to time
owned by a Group Company or in which a Group Company is otherwise
interested;
"PROPERTY VALUATION" means the property valuation in the approved form
prepared by Taylors Business Surveyors and Valuers Limited in relation to
the Target Groups;
"PUK 1" means Principal Healthcare Finance (UK) No. 1 Limited, a company
registered in England and Wales with registered number 3450597;
"PUK 2" means Principal Healthcare Finance (UK) No. 2 Limited, a company
registered in England and Wales with registered number 3450567;
"QUALIFYING LENDER" means:
(a) in the case of a Lender which has its Lending Office in the United
Kingdom, a bank as defined in section 840A of the Income and
Corporation Taxes Act 1988 which, for the purposes of section 349
of that Act, is within the charge to United Kingdom corporation
tax as regards any interest payable or paid to it under the Senior
Finance Documents and is beneficially entitled to any such
interest;
(b) in the case of a Lender which has its Lending Office outside the
United Kingdom, an Eligible Transferee to which payments under the
Senior Finance Documents may be made without deduction or
withholding for or on account of Taxes by reason of an applicable
taxation treaty between the United Kingdom and the country in
which that Lender is, or is treated as, resident or carrying on
business; or
(c) a person beneficially entitled to the income in respect of which a
payment of interest by any Obligor (being a body corporate) is
made under the Senior Finance Documents and which satisfies either
of the conditions in section 349B of the Income and Corporation
Taxes ▇▇▇ ▇▇▇▇;
"QUARTERLY ACCOUNTS" means the FSHC Quarterly Accounts and the PHFL
Quarterly Accounts;
"RATE FIXING DAY" means the day which market practice in the applicable
interbank market treats as the rate fixing day for obtaining deposits in
the currency in question;
"RBS GROUP" means Linecrest Limited (registered no. 3629650), Four
Seasons Homes No.3 Limited (registered no. 3973973), Four Seasons Homes
No.5 Limited (registered no. 4198505), Springfield House (Oaken) Limited
(registered no. 1759149), Four Seasons Health Care Properties Limited
-25-
(registered no. 40100), Regency House Limited (registered no. 2135982)
and each of their Subsidiaries from time to time;
"REFERENCE BANKS" means, in relation to EURIBOR, LIBOR and Mandatory Cost
the principal London offices of Barclays Bank PLC and/or such other banks
as may be appointed by the Facility Agent in consultation with the
Parent;
"RELEVANT PERIOD" means, in respect of the Group and each of the Excluded
Groups, other than the Securitisation Group, the two most recently
preceding Accounting Quarters (or, in the case of the Accounting Quarter
during which the Unconditional Date falls, the period from the
Unconditional Date until the end of such Accounting Quarter);
"REPAYMENT DATES" means each date on which an instalment is due for
repayment under clause 11.1 (Term Advances), the Term A Final Repayment
Date, the Term B Final Repayment Date, the Term C Final Repayment Date,
the Cash Bridge Final Repayment Date and the Revolving Facility Repayment
Date;
"REPORTABLE EVENT" means:
(a) a reportable event as defined in Section 4043(c) of ERISA and the
regulations issued under such Section, with respect to a Plan,
excluding, however, such events as to which the PBGC by regulation
waived the requirement of Section 4043(a) of ERISA that it be
notified within 30 days of the occurrence of such event, provided,
however, that a failure to meet the minimum funding standard of
Section 412 of the IR Code and of Section 302 of ERISA shall be a
Reportable Event regardless of the issuance of any such waiver of
the notice requirement in accordance with either Section 4043(a)
of ERISA; or
(b) the withdrawal of a Group Company or any ERISA Affiliate from a
Plan during a plan year in which it was a "substantial employer"
as defined in section 4001(a)(2) of ERISA;
(c) the filing (or reasonable expectation of a filing) of a notice of
intent to terminate a Plan or the treatment of a Plan amendment as
a termination under section 4041 of ERISA;
(d) the institution of proceedings to terminate a Plan by the PBGC;
(e) any other event or condition which constitutes grounds under
section 4042 of ERISA for the termination of, or the appointment
of a trustee by the PBGC to administer, any Plan; or
(f) a Group Company establishes or amends any Welfare Plan that
provides post-employment welfare benefits in a manner that would
materially increase the liability of a Group Company;
"REPORTS" means the Accountants' Report, the Legal Report, the Insurance
Brokers' Letters, the Property Valuation and the Environmental Report;
"RESERVATIONS" means the principle that equitable remedies are remedies
which may be granted or refused at the discretion of the court and
damages may be regarded as an adequate remedy, 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 Acts (and similar legislation), the possibility that
an undertaking to assume liability for or to indemnify a person against
non-payment of stamp duty may be void, the fact that a court may refuse
to give effect to a purported contractual obligation to pay costs imposed
-26-
upon another party in respect of the costs of any unsuccessful litigation
brought against that party or may not award by way of costs all of the
expenditure incurred by a successful litigant in proceedings brought
before that court, or that a court may stay proceedings if concurrent
proceedings based on the same grounds and between the same parties have
previously been brought before another court, that a court may not give
effect to the provisions of clause 30.3 (Invalidity of any Provision) (or
any similar provision in another Senior Finance Document) and that
interest at a default rate on overdue amounts may be a penalty and not
recoverable;
"REVOLVING ADVANCE" means the principal amount of each advance made or to
be made under the Revolving Facility, as reduced from time to time by
repayment or prepayment;
"REVOLVING COMMITMENT" means:
(a) in relation to a Lender identified in schedule 1, the amount set
opposite its name under the heading "Revolving Commitment" in
schedule 1 and the amount of any other Revolving Commitment
transferred to it under this agreement; or
(b) in relation to any other Lender, the amount of any Revolving
Commitment transferred to it under this agreement,
to the extent not cancelled, reduced or transferred by it under this
agreement;
"REVOLVING FACILITY" means the revolving credit facility made available
by the Revolving Lenders under clause 2.1(e) (Facilities);
"REVOLVING FACILITY REPAYMENT DATE" means the earlier of:
(a) 31 July 2009; and
(b) the repayment, prepayment and/or cancellation in full of the Term
A Facility and the Term B Facility;
"REVOLVING LENDERS" means:
(a) the persons identified in schedule 1 as participating in the
Revolving Facility; and
(b) each Transferee which has become a party to this agreement in
relation to the Revolving Facility in accordance with clause 27
(Changes to parties),
in each case until its entire participation in the Revolving Facility has
been assigned or transferred to a Transferee in accordance with clause 27
(Changes to parties) and all amounts owing to it under the Senior Finance
Documents in relation to the Revolving Facility have been paid in full;
"SALE AND PURCHASE AGREEMENT" means the agreement in the agreed form
between the US Target and Jersey Bidco under which US Target agrees to
sell the Jersey Target Shares which it holds to Jersey Bidco;
"SECOND SECURITISATION" means the securitisation of certain receivables
of Tiara Securities Issuer BV more particularly set out in the Second
Securitisation Offering Circular;
-27-
"SECOND SECURITISATION GROUP" means PHF Securities ▇▇.▇, ▇▇▇ ▇, ▇▇▇ ▇,
▇▇▇ Property, PHF Reversions No.2 and PHF Investments Holding No. 2;
"SECOND SECURITISATION DOCUMENTS" means the documents referred to in the
Second Securitisation Offering Circular setting out the terms of the
Second Securitisation;
"SECOND SECURITISATION OFFERING CIRCULAR" means the offering circular
dated 23 March 1999 prepared by Tiara Securities Issuer BV which sets out
the terms of the Second Securitisation;
"SECOND US MERGER" means the merger of US Target with and into US LLC
with US LLC being the surviving corporation in such merger;
"SECURITISATION DOCUMENTS" means the First Securitisation Documents and
the Second Securitisation Documents;
"SECURITISATION GROUP" means the First Securitisation Group and the
Second Securitisation Group;
"SECURITISATION INTEREST PAYABLE" has the meaning given to it in clause
20.15 (Financial definitions);
"SECURITISATION RELEVANT PERIOD" means, in respect of the Securitisation
Group:
(a) commencing with the Accounting Quarter ending 30 September 2003,
where the most recent Accounting Quarter has ended 30 September,
the immediately preceding six month period ending on 31 July; or
(b) where the most recent Accounting Quarter has ended 31 March 2003,
the period from the Unconditional Date to 31 January 2003, and
thereafter, where the most recent Accounting Quarter has ended 31
March, the immediately preceding six month period ending on 31
January;
"SECURITISATIONS" means the First Securitisation and the Second
Securitisation;
"SECURITY DOCUMENTS" means each of the security documents specified in
schedule 9 and all other documents creating, evidencing or granting a
Security Interest in favour of any Finance Party in relation to the
obligations of any Obligor under any Senior Finance Document;
"SECURITY INTEREST" means any mortgage, charge (fixed or floating),
pledge, lien, hypothecation, right of set-off, security trust, assignment
by way of security, reservation of title, any other security interest or
any other agreement or arrangement (including a sale and repurchase
arrangement) having the commercial effect of conferring security;
"SENIOR FINANCE DOCUMENTS" means this agreement, each Security Document,
the Intercreditor Deed, each Hedging Agreement, each Ancillary Document,
each Accession Document, each Transfer Certificate, the Fees Letters and
any other document designated as a Senior Finance Document by the Parent
and the Facility Agent;
"SERVICE CONTRACT" means the contract of employment dated 6 July 1999 and
made between the Parent and the Key Executive;
"SHAWCROSS EXTENSION" means the development of land and buildings at
Shawcross Care Home, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇;
-28-
"SPOT RATE" means the spot rate of exchange of the Facility Agent (as
determined by the Facility Agent) for the purchase of the appropriate
amount of a currency with Sterling in the London foreign exchange market
in the ordinary course of business at or about 10.00 am on the day in
question for delivery two Business Days later;
"STANDSTILL AGREEMENTS" means the agreements in the agreed form dated on
or before the date of this agreement with regard to the standstill of the
Standstill Loans save that there shall be no Standstill Agreement in
respect of the Standstill Loan referred to in paragraph (c) of that
definition;
"STANDSTILL LOANS" means each of:
(a) the (pound)150,000,000 revolving warehouse facility between,
amongst others PHF Funding Limited and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital
Services, Inc made pursuant to an agreement dated 6 October 1997;
(b) the (pound)30,000,000 facility between the Jersey Target and The
Governor and Company of the Bank of Scotland made pursuant to an
agreement dated 25 August 1995;
(c) the (pound)5,000,000 loan to the Jersey Target which comprises
part of the (pound)20,000,000 loan from OHI to the Jersey Target
made pursuant to an agreement dated 21 July 1995 the benefit of
which has been transferred from OHI to Electra ▇▇▇▇▇▇▇ Private
Equity Partners 1995 (formerly known as Electra ▇▇▇▇▇▇▇ Private
Equity Partners);
(d) the (pound)15,000,000 loan to the Jersey Target which comprises
part of the (pound)20,000,000 loan from OHI to the Jersey Target
made pursuant to an agreement dated 21 July 1995 the benefit of
which has been transferred from OHI to the US Target; and
(e) the (pound)7,000,000 loan from the US Target to the Jersey Target
made pursuant to an agreement dated 23 April 2001;
"STERLING" or "(POUND)" means the lawful currency of the United Kingdom;
"STERLING EQUIVALENT" means, in relation to an amount denominated in a
currency other than Sterling, the amount of that currency converted into
Sterling at the Spot Rate;
"STOCK PURCHASE AGREEMENT" means the stock purchase agreement amongst,
the Parent, US Bidco and OHI in the agreed form, as such agreement may be
amended from time to time to the extent permitted under clause 20.8
(Transaction Document Undertakings);
"SUBORDINATED GUARANTEE" means the subordinated guarantee in the agreed
form to be provided by Jersey Holdco, Jersey Bidco and Jersey Target in
favour of Alchemy Partners (Guernsey) Limited relating to the Investor
Loan Notes;
"SUBSIDIARY" means a subsidiary and (for the purposes of the financial
information to be delivered, and the financial covenants to be complied
with, under this agreement) a subsidiary undertaking as defined in
sections 736 and 258 of the Companies ▇▇▇ ▇▇▇▇ respectively;
"SURPLUS CASHFLOW" means in respect of each Excluded Group (a) Cashflow
for the Relevant Period (or in the case of the Securitisation Group, the
Securitisation Relevant Period) to the extent attributable to that
Excluded Group less (b) Total Debt Service for the Relevant Period (or in
the case of the
-29-
Securitisation Group, the Securitisation Relevant Period) to the extent
attributable to that Excluded Group;
"SYNDICATION DATE" means the earlier of:
(a) the date the Facility Agent notifies the Parent and the other
Finance Parties that primary syndication has been completed; and
(b) the date following four months after the Completion Date;
"SYNDICATION LETTER" means the letter from the Arranger to the Parent
setting out the changes which it may have to make to the terms of the
Facilities in order to achieve a successful syndication;
"SYNDICATION MEMORANDUM" has the meaning given to it in clause 3.4(a)(i)
(Syndication);
"TARGET ADJUSTED EBITDA" has the meaning given to it in clause 20.15
(Financial definitions);
"TARGET DAY" means a day on which the Trans-European Automated Real-time
Gross Settlement Express Transfer system is operating;
"TARGET GROUP COMPANY" means a member of the US Target Group or the
Jersey Target Group;
"TARGET GROUPS" means the US Target Group and the Jersey Target Group;
"TARGET INTEREST PAYABLE" has the meaning given to it in clause 20.15
(Financial definitions);
"TARGET INTEREST RECEIVABLE" has the meaning given to it in clause 20.15
(Financial definitions);
"TARGET TOTAL NET DEBT" has the meaning given to it in clause 20.15
(Financial definitions);
"TARGETS" means the US Target and the Jersey Target;
"TAX" means all present and future income and other taxes, levies,
assessments, imposts, deductions, charges, duties, compulsory loans and
withholdings (wherever imposed) and any charges in the nature of taxation
together with interest thereon and penalties and fines in relation
thereto, if any, and any payments made on or in relation thereof and
"TAXATION" shall be construed accordingly;
"TENDER AGREEMENTS" means the tender and option agreements and
irrevocable proxies among Parent, US Bidco, US Target and the
shareholders of US Target listed on the signature pages thereto in the
agreed form, as such agreements may be amended from time to time to the
extent permitted under clause 20.8 (Transaction Document Undertakings);
"TERM ADVANCE" means a Term A Advance and/or a Term B Advance and/or a
Term C Advance;
"TERM A ADVANCES" means the principal amount of the advances made or to
be made under the Term A Facility, as reduced from time to time by
repayment or prepayment;
"TERM A COMMITMENT" means:
-30-
(a) in relation to a Lender identified in schedule 1, the amount set
opposite its name under the heading "Term A Commitment" in
schedule 1 and the amount of any other Term A Commitment
transferred to it under this agreement; or
(b) in relation to any other Lender, the amount of any Term A
Commitment transferred to it under this agreement,
to the extent not cancelled, reduced or transferred by it under this
agreement;
"TERM A FACILITY" means the term loan facility made available by the Term
A Lenders under clause 2.1(a) (Facilities);
"TERM A FINAL REPAYMENT DATE" means 31 July 2009;
"TERM A LENDERS" means:
(a) the parties identified in schedule 1 as participating in the Term
A Facility; and
(b) each Transferee which has become a party to this agreement in
relation to the Term A Facility in accordance with clause 27
(Changes to parties),
in each case until its entire participation in the Term A Facility has
been assigned or transferred to a Transferee in accordance with clause 27
(Changes to parties) and all amounts owing to it under the Senior Finance
Documents in relation to the Term A Facility have been paid in full;
"TERM B ADVANCES" means the principal amount of the advances made or to
be made under the Term B Facility, as reduced from time to time by
repayment or prepayment;
"TERM B COMMITMENT" means:
(a) in relation to a Lender identified in schedule 1, the amount set
opposite its name under the heading "Term B Commitment" in
schedule 1 and the amount of any other Term B Commitment
transferred to it under this agreement; or
(b) in relation to any other Lender, the amount of any Term B
Commitment transferred to it under this agreement,
to the extent not cancelled, reduced or transferred by it under this
agreement;
"TERM B FACILITY" means the term loan facility made available by the Term
B Lenders under clause 2.1(c) (Facilities);
"TERM B FINAL REPAYMENT DATE" means 31 January 2010;
"TERM B LENDERS" means:
(a) the parties identified in schedule 1 as participating in the Term
B Facility; and
(b) each Transferee which has become a party to this agreement in
relation to the Term B Facility in accordance with clause 27
(Changes to parties),
-31-
in each case until its entire participation in the Term B Facility has
been assigned or transferred to a Transferee in accordance with clause 27
(Changes to parties) and all amounts owing to it under the Senior Finance
Documents in relation to the Term B Facility have been paid in full;
"TERM C ADVANCES" means the principal amount of the advances made or to
be made under the Term C Facility, as reduced from time to time by
repayment or prepayment;
"TERM C CASH PAY INTEREST RATE" means the interest rate per annum set out
in clause 8.1(a) (Rate) for each Term C Advance;
"TERM C COMMITMENT" means:
(a) in relation to a Lender identified in schedule 1, the amount set
opposite its name under the heading "Term C Commitment" in
schedule 1 and the amount of any other Term C Commitment
transferred to it under this agreement; or
(b) in relation to any other Lender, the amount of any Term C
Commitment transferred to it under this agreement,
to the extent not cancelled, reduced or transferred by it under this
agreement;
"TERM C FACILITY" means the term loan facility made available by the Term
C Lenders under clause 2.1(c) (Facilities);
"TERM C FINAL REPAYMENT DATE" means 31 July 2010;
"TERM C LENDERS" means:
(a) the persons identified in schedule 1 as participating in the Term
C Facility; and
(b) each Transferee which has become a party to this agreement in
relation to the Term C Facility in accordance with clause 27
(Changes to parties),
in each case until its entire participation in the Term C Facility has
been assigned or transferred to a Transferee in accordance with clause 27
(Changes to parties) and all amounts owing to it under the Senior Finance
Documents in relation to the Term C Facility have been paid in full;
"TERM COMMITMENTS" means the Term A Commitments, the Term B Commitments
and the Term C Commitments;
"TERM FACILITIES" means the Term A Facility, the Term B Facility and the
Term C Facility;
"TESTING DATE" has the meaning given to it in clause 20.15 (Financial
Definitions);
"THIRD PARTY INVESTOR" means each holder of Investor Loan Notes and/or
shares in the Parent or Jersey Holdco from time to time that is not an
Investor;
"TOTAL AVAILABLE COMMITMENTS" means the aggregate of all the Available
Commitments at any time;
"TOTAL COMMITMENTS" means the aggregate of all the Commitments at any
time;
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"TOTAL DEBT SERVICE" has the meaning given to it in clause 20.15
(Financial definitions);
"TRANSACTION DOCUMENTS" means the Senior Finance Documents, the Equity
Documents, the Crestacare Loan Notes, the Service Contract, the Offer
Documents, the Merger Agreement as supplemented by the Disclosure Letter,
the Option Agreement, the Stock Purchase Agreement, the Tender
Agreements, the Certificate of Merger, the Articles of Merger, and the
Sale and Purchase Agreement;
"TRANSFER CERTIFICATE" means a certificate substantially in the form set
out in part 1 of schedule 5;
"TRANSFEREE" has the meaning given to it in clause 27.2(a) (Assignments
and transfers by Lenders);
"TREATY ON EUROPEAN UNION" means the Treaty of Rome signed on 25 March
1957 as amended by the Single ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ and the Maastricht Treaty
signed on 7 February 1992;
"UCC" means the Uniform Commercial Code (or any similar or equivalent
legislation) as in effect in any state of the United States of America;
"UK GAAP" means accounting principles, standards and practices generally
accepted from time to time in the United Kingdom and approved by the
Institute of Chartered Accountants of England and Wales;
"UK HOLDCO" means Four Seasons Health Care (Capital) Limited, a company
incorporated in England and Wales with company number 4470724;
"UNCONDITIONAL DATE" means the first date on which both (i) the Initial
US Purchase Date has occurred and (ii) the Jersey Code Offer or the
Jersey Non Code Offer (as the case may be) has been declared
unconditional in all respects;
"UNECONOMIC ASSET" means:
(i) any asset with a value of (pound)250,000 (or its Sterling
Equivalent) or less the retention of which the Parent reasonably
believes to be commercially not cost effective in itself or having
regard to the other opportunities available to the Group; or
(ii) any asset with a value in excess of (pound)250,000 (or its
Sterling Equivalent), the retention of which the Parent
demonstrates to the satisfaction of the Facility Agent (acting
reasonably) is commercially not cost effective in itself or having
regard to the other opportunities available to the Group;
"UNFUNDED LIABILITIES" means the amount (if any) by which the present
value of all nonforfeitable benefits under each of the Plans exceeds the
current value of such Plan assets allocable to such benefits, all
determined in accordance with the respective most recent valuations for
such Plan using applicable PBGC plan termination actuarial assumptions
(the terms "present value" and "current value" shall have the same
meanings specified in section 3 of ERISA);
"USA" means the United States of America;
"US BANKRUPTCY CODE" means Title 11 of the United States Code;
"US BIDCO" means Delta I Acquisition, Inc. a corporation organised under
the laws of Delaware;
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"US GAAP" means generally accepted accounting principles from time to
time in the United States of America, as set forth in opinions and
pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such
other statements by such other entity as may be approved by a significant
segment of the accounting profession in the United States of America;
"US LLC" means Delta I Acquisition, LLC, a limited liability company
organised under the laws of Delaware;
"US MERGERS" means the First US Merger and the Second US Merger;
"US OBLIGOR" means any Obligor that is incorporated under the laws of the
USA or any state thereof;
"US OFFER" means an offer by US Bidco to purchase all outstanding US
Target Shares not owned by it as contemplated by the Merger Agreement and
the US Offer Document;
"US OFFER DOCUMENT" means the Tender Offer Statement in the agreed form
to be filed by US Bidco with the US Securities and Exchange Commission
pursuant to Section 14(d)(1) of the US Securities and Exchange Act, as
amended, together with all exhibits thereto including the Offer to
Purchase and the Merger Agreement, as amended or supplemented from time
to time, in connection with the US Offer;
"US PROXY MATERIALS" means the Merger Agreement and all proxy,
informational and other materials sent or otherwise delivered to
shareholders of US Target in connection with the first US Merger and
solicitation of the consent of such shareholders to the first US Merger,
including without limitation any information statement or other offering
document;
"US TARGET" means Omega Worldwide, Inc. a corporation formed under the
laws of
Maryland with its principal executive offices at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇;
"US TARGET GROUP" means the US Target and all its Subsidiaries;
"US TARGET SHARES" means the issued and outstanding shares of common
stock, par value US$0.10 per share, in the US Target pursuant to the
Offer to Purchase;
"US TERMINATION DATE" means the date falling 120 days after commencement
of the US Offer;
"VALE COURT" means Vale Court Care Homes Limited, a company incorporated
in England and Wales with registered number 3655617;
"VALE COURT ACQUISITION" means the acquisition of Vale Court by Four
Seasons Group Limited from ▇▇▇▇▇ Health Care (UK) Limited and including
the assumption of the Vale Court Indebtedness to be guaranteed by Four
Seasons Group Limited (but so that any such guarantee does not exceed the
maximum amount of the Vale Court Indebtedness);
"VALE COURT INDEBTEDNESS" means Financial Indebtedness owed by Vale Court
to Credit Suisse First Boston in respect of a loan dated 28 April 1999 up
to a maximum aggregate amount of (pound)1,600,000;
"WELFARE PLAN" means a "welfare plan" as such term is defined in Section
3(1) of ERISA; and
"WORKING CAPITAL" has the meaning given to it in clause 20.15 (Financial
definitions).
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1.2 CONSTRUCTION
In this agreement, unless a contrary intention appears, a reference to:
(a) a document being "IN THE AGREED FORM" means in a form agreed
between the Parent and the Facility Agent;
(b) an "AGREEMENT" includes any legally binding arrangement,
concession, contract, deed or franchise (in each case whether oral
or written);
(c) an "AMENDMENT" includes any amendment, supplement, variation,
novation, modification, replacement or restatement and "AMEND",
"AMENDING" and "AMENDED" shall be construed accordingly;
(d) a Report or other document being in the "APPROVED FORM" means a
Report or other document the scope and content of which has been
approved by the Arranger, which is addressed to (and can be relied
on by) the Finance Parties from time to time and which has been
duly signed by its author and initialled by, or on behalf of, the
Parent;
(e) "ASSETS" includes property, business, undertaking and rights of
every kind, present, future and contingent (including uncalled
share capital) and every kind of interest in an asset;
(f) a "CONSENT" includes an authorisation, approval, exemption,
licence, order, permission or waiver;
(g) a "FILING" includes any filing, registration, recording or notice;
(h) a "GUARANTEE" includes any indemnity or other obligation (whatever
called) of any person:
(i) to pay, purchase, provide funds (whether by the advance of
money, the purchase of or subscription for shares or other
investments, the purchase of assets or services, the making
of payments under an agreement or otherwise) for the
payment of, indemnify against the consequences of default
in the payment of, or otherwise be responsible for, any
indebtedness of any other person; or
(ii) to be responsible for the performance of any obligations by
or the solvency of any other person,
and "GUARANTEED" and "GUARANTOR" shall be construed accordingly;
(i) "INCLUDING" means including without limitation and "INCLUDES" and
"INCLUDED" shall be construed accordingly;
(j) "INDEBTEDNESS" includes any obligation (whether incurred as
principal, guarantor or as surety) for the payment or repayment of
money, whether present or future, actual or contingent;
(k) "LOSSES" includes losses, actions, damages, claims, proceedings,
costs, demands, expenses (including fees) and liabilities and
"LOSS" shall be construed accordingly;
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(l) a "MONTH" means a period starting on one day in a calendar month
and ending on the numerically corresponding day in the next
calendar month, except that:
(i) if any such period would otherwise end on a day which is
not a Business Day, it shall end on the next Business Day
in the same calendar month or, if none, on the preceding
Business Day; and
(ii) if a period starts on the last Business Day in a calendar
month, or if there is no numerically corresponding day in
the month in which that period ends, that period shall end
on the last Business Day in that later month,
and references to "MONTHS" shall be construed accordingly;
(m) a "PERSON" includes any person, individual, firm, company,
corporation, government, state or agency of a state or any
undertaking (within the meaning of section 259(1) of the Companies
Act 1985) or other association (whether or not having separate
legal personality) or any two or more of the foregoing;
(n) a "REGULATION" includes any regulation, rule, official directive,
request or guideline (whether or not having the force of law) of
any governmental body, agency, department or regulatory,
self-regulatory or other authority or organisation;
(o) the "WINDING-UP" of any person includes its dissolution and/or
termination and/or any equivalent or analogous proceedings under
the law of any jurisdiction in which that person is incorporated,
registered, established or carries on business or to which that
person is subject; and
(p) a "STATE" of the USA includes the District of Columbia and any
state organised as a commonwealth.
1.3 OTHER REFERENCES
In this agreement, unless a contrary intention appears:
(a) a reference to any person is, where relevant, deemed to be a
reference to or to include, as appropriate, that person's
successors and permitted assignees or transferees;
(b) references to clauses and schedules are references to,
respectively, clauses of and schedules to this agreement and
references to this agreement include its schedules;
(c) a reference to (or to any specified provision of) any agreement or
document (including the Senior Finance Documents) is to be
construed as a reference to that agreement or document (or that
provision) as it may be amended from time to time, but excluding
for this purpose any amendment which is contrary to any provision
of any Senior Finance Document;
(d) a reference to a statute, statutory instrument or accounting
standard or any provision thereof is to be construed as a
reference to that statute, statutory instrument or accounting
standard or such provision thereof, as it may be amended or
re-enacted from time to time;
(e) a time of day is a reference to London time;
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(f) the index to and the headings in this agreement are inserted for
convenience only and are to be ignored in construing this
agreement; and
(g) words importing the plural shall include the singular and vice
versa.
1.4 CASH COVER
(a) If a Borrower is obliged under this agreement or any Ancillary
Facility Letter to repay or prepay or provide cash cover in
relation to any contingent liability under a Bank Guarantee or an
Ancillary Facility, that Borrower shall, on the date for that
repayment, prepayment or provision of cash cover:
(i) by agreement with the relevant Beneficiary, reduce that
contingent liability by the relevant amount; or
(ii) pay the relevant amount to the credit of a Cash Collateral
Account.
(b) Any amounts standing to the credit of any Cash Collateral Account
shall bear interest at the rate normally offered to corporate
depositors on similar deposits by the Finance Party with which
that account is held.
1.5 CURRENCY CONVERSION
For the purposes of the Senior Finance Documents (other than clauses
20.14 (Financial covenants) to 20.16 (Calculation) (inclusive)), if a
Sterling amount needs to be determined, any amount which is denominated
in a currency other than Sterling will be converted into Sterling using
the Spot Rate on that date.
2. THE FACILITIES
2.1 FACILITIES
Subject to the other provisions of this agreement:
(a) the Term A Lenders agree to make available to Jersey Target (after
it accedes to this agreement as a Borrower in accordance with
clause 18.1 (Additional Borrowers)) a term loan facility in a
maximum aggregate principal amount not exceeding (pound)32,000,000
(or, if the Term A Lenders provide their consent, its Sterling
Equivalent in Optional Currencies) which shall be available by way
of Term A Advances;
(b) the Term B Lenders agree to make available to FSHC Holdco and/or
Jersey Target (after it accedes to this agreement as a Borrower in
accordance with clause 18.1 (Additional Borrowers)) a term loan
facility in a maximum aggregate principal amount not exceeding
(pound)14,000,000 (or, if the Term B Lenders provide their
consent, its Sterling Equivalent in Optional Currencies) which
shall be available by way of Term B Advances;
(c) the Term C Lenders agree to make available to FSHC Holdco and/or
Jersey Target (after it accedes to this agreement as a Borrower in
accordance with clause 18.1 (Additional Borrowers)) a term loan
facility in a maximum aggregate principal amount not exceeding
(pound)5,000,000 (or, if the Term C Lenders provide their consent,
its Sterling Equivalent in Optional Currencies) which shall be
available by way of Term C Advances;
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(d) the Cash Bridge Lenders agree to make available to FSHC Holdco a
Cash Bridge Facility in a maximum aggregate principal amount not
exceeding (pound)5,000,000 (or, if the Cash Bridge Lenders provide
their consent, its Sterling Equivalent in Optional Currencies)
which shall be available by way of Cash Bridge Advances; and
(e) the Revolving Lenders agree to make available to the Borrowers a
revolving credit facility in a maximum aggregate principal amount
not exceeding (pound)3,000,000 (or, if the Revolving Lenders
provide their consent, its Sterling Equivalent in Optional
Currencies) which:
(i) shall be available by way of Revolving Advances and Bank
Guarantees; and
(ii) may include Ancillary Facilities up to the Ancillary Limit.
2.2 PURPOSE
(a) The proceeds of the Term B Advances, the Term C Advances and the
Cash Bridge Advances shall be applied in or towards:
(i) payment of the cash price payable by Jersey Bidco for the
Jersey Target Shares pursuant to the Jersey Offer and
pursuant to exercise of its rights under Articles 117 and
118 of the Companies (Jersey) Law 1991 (as amended);
(ii) payment of the cash price payable by US Bidco for the US
Target Shares pursuant to the US Offer, the cash
consideration payable by US Bidco to OHI pursuant to the
Stock Purchase Agreement and the cash consideration payable
by US Bidco to shareholders of the US Target pursuant to
the first US Merger;
(iii) payment of the cash price payable by Jersey Bidco for the
Jersey Target Shares held by US Target, and which are not
subject to the Jersey Offer, pursuant to the Sale and
Purchase Agreement;
(iv) (only after the Unconditional Date) financing or
refinancing the Offer Costs of the Parent, Jersey FSHC
Holdco, FSHC Investments, Jersey Bidco and/or US Bidco up
to a maximum aggregate amount of (pound)6,000,000 (or in
Sterling Equivalent); and/or
(v) (only after the Unconditional Date) repaying existing
Financial Indebtedness (including the Standstill Loans) of
the Target Groups.
(b) The proceeds of the Term A Advances shall be applied (only after
the Unconditional Date) in or towards repaying existing Financial
Indebtedness (including the Standstill Loans) of the Target Groups
(and for the avoidance of doubt, shall not be used for any payment
of the purchase price for the Jersey Target Shares or for the US
Target Shares or towards the financing or refinancing of the Offer
Costs).
(c) The proceeds of the Revolving Advances and each Bank Guarantee
shall be used for the working capital requirements and capital
expenditure of Group Companies and the Idun Group arising after
the Unconditional Date (excluding any payment of the purchase
price for the Jersey Target Shares or for the US Target Shares or
towards financing or refinancing the Offer Costs) and for the Fife
Loan Repayment up to a maximum aggregate amount of
(pound)1,100,000.
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(d) The Ancillary Facilities shall be used for the working capital
requirements of Group Companies arising after the Unconditional
Date (excluding any payment of the purchase price for the Jersey
Target Shares or for the US Target Shares or towards financing or
refinancing the Offer Costs).
(e) No Finance Party shall be obliged to enquire about, or be
responsible for, the use or application of amounts borrowed under
this agreement.
2.3 PARENT AS OBLIGORS' AGENT
Each Obligor irrevocably appoints the Parent as its agent for the purpose
of:
(a) executing and delivering on its behalf any Accession Document and
any other agreement or document capable of being entered into by
that Obligor under or in connection with the Senior Finance
Documents;
(b) giving and receiving any notice or instruction under or in
connection with any Senior Finance Document (including any
Drawdown Request); and
(c) agreeing and executing all consents, agreements and amendments
(however fundamental and notwithstanding any increase in
obligations of or other effect on an Obligor) entered into in
connection with the Senior Finance Documents (including
confirmation of continuation of guarantee obligations in
connection with any amendment or consent in relation to the
Facilities).
3. PARTICIPATION OF LENDERS
3.1 BASIS OF PARTICIPATION
Subject to the other provisions of this agreement:
(a) each relevant Term Lender will participate in each Drawing of the
Term Facilities in the proportion which its Commitment in relation
to the relevant Term Facility bears to the total Commitments in
relation to the relevant Term Facility as at the relevant Drawdown
Date;
(b) each relevant Cash Bridge Lender will participate in each Drawing
of the Cash Bridge Facility in the proportion which its Commitment
in relation to the Cash Bridge Facility bears to the total
Commitments in relation to the Cash Bridge Facility as at the
relevant Drawdown Date;
(c) each Revolving Lender will participate in each Drawing of the
Revolving Facility (in the case of a Bank Guarantee by way of
indemnity in favour of the relevant Issuing Lender under clause
7.4(b) (Indemnities)) in the proportion which its Available
Commitment bears to the Total Available Commitments as at the
relevant Drawdown Date.
3.2 LENDING OFFICE
(a) Each Lender will participate in each Drawing through its Lending
Office.
(b) If any Lender changes its Lending Office for the purpose of the
Facilities, that Lender will, as soon as reasonably practicable
after that change, notify it to the Facility Agent and the Parent
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and, until it does so, the Agents and the Parent will be entitled
to assume that no such change has taken place.
3.3 RIGHTS AND OBLIGATIONS OF FINANCE PARTIES
(a) The rights and obligations of each of the Finance Parties under
the Senior Finance Documents are several. The failure by a Finance
Party to comply with its obligations under any Senior Finance
Document shall not:
(i) result in any other Finance Party incurring any liability;
or
(ii) relieve any Obligor or any other Finance Party from its
obligations under the Senior Finance Documents.
(b) Subject to the other provisions of the Senior Finance Documents,
each Finance Party has the right to protect and enforce its rights
arising out of the Senior Finance Documents and it will not be
necessary for any other Finance Party to be joined as an
additional party in any proceedings brought for the purpose of
protecting or enforcing those rights.
3.4 SYNDICATION
(a) The Facilities are being made available by the Lenders with the
intention (but not the obligation) that the Arranger should
co-ordinate primary syndication. Each Obligor undertakes to assist
and co-operate with the Arranger in syndication in such a manner
and to such an extent as the Arranger may reasonably request,
including by:
(i) the preparation, review and approval of a syndication
information memorandum (the "SYNDICATION MEMORANDUM") in
relation to the Group and the business, trading, prospects,
financial condition, assets and liabilities of the Group as
a whole and of each Group Company;
(ii) participating in presentations to potential Lenders
concerning the activities of the Group as a whole and of
each Group Company; and
(iii) selecting Interest Periods in relation to Advances no
longer than one month in relation to all Advances made on
or before the date falling four months after the first
Drawdown Date.
(b) Before the Syndication Date, no Lender may assign, transfer,
sub-participate, sub-contract or deliver a Transfer Certificate in
relation to all or any part of its rights or obligations under any
Senior Finance Document without the prior consent of the Facility
Agent.
4. CONDITIONS PRECEDENT
4.1 INITIAL CONDITIONS PRECEDENT
The Lenders shall not be under any obligation to make any Drawing
available to any Borrower unless:
(a) on or before the date of this agreement, the Facility Agent has
received each of the documents, information and/or other items
specified in part 1 of schedule 4 in form and substance
satisfactory to the Facility Agent (acting reasonably); and
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(b) on or before the first Drawdown Date, the Facility Agent has
received each of the documents, information and/or other items
specified in part 2 of schedule 4 (or the Facility Agent is
satisfied that, subject only to the making of the first Advances
under this agreement it will receive such documents, information
and/or other items) in form and substance satisfactory to the
Facility Agent (acting reasonably); and
(c) subject to clause 4.5 (Certain Funds Period), the conditions set
out in clause 4.3 (Additional conditions precedent) have been
fulfilled.
The Facility Agent will promptly notify the Parent and the Lenders when
the conditions in clause 4.1(a) or clause 4.1(b), as the case may be, are
satisfied.
4.2 FAILURE TO SATISFY CONDITIONS PRECEDENT
Except as the Facility Agent (acting on the instructions of all the
Lenders) agrees otherwise, if the conditions referred to in clause 4.1
(Initial conditions precedent) have not been fulfilled or waived in
writing on or before the last day of the Availability Period for the Term
Facilities and the Cash Bridge Facility:
(a) all the Commitments will automatically be cancelled; and
(b) the Lenders will cease to have any obligation to make any Drawing
available.
4.3 ADDITIONAL CONDITIONS PRECEDENT
Subject to clause 4.4 (Rollover Advances) and clause 4.5 (Certain Funds
Period), the obligations of the Lenders to make any Drawing available are
subject to the further conditions precedent that, on both the date of the
relevant Drawdown Request and the relevant Drawdown Date:
(a) no Default has occurred and is continuing or will occur as a
result of making that Drawing; and
(b) the representations and warranties set out in clause 19
(Representations and warranties) which are made or repeated on
those dates are true and accurate by reference to the facts and
circumstances then subsisting and will remain true and accurate
immediately after that Drawing is made.
4.4 ROLLOVER ADVANCES
If in relation to a Revolving Advance (the "NEW REVOLVING ADVANCE"):
(a) any of the conditions specified in clause 4.3 (Additional
conditions precedent) is not satisfied on the Drawdown Date for
the new Revolving Advance;
(b) the amount of the new Revolving Advance does not exceed the amount
of an existing Revolving Advance (the "EXISTING REVOLVING
ADVANCE") which is due to be repaid on the Drawdown Date of the
new Revolving Advance; and
(c) the proceeds of the new Revolving Advance are applied in repaying
the existing Revolving Advance, then, unless any notice is then
outstanding under clause 21.2 (Cancellation and
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repayment), the Lenders may not refuse to advance the new
Revolving Advance by reason of the conditions specified in clause
4.3 (Additional conditions precedent) not being satisfied.
4.5 CERTAIN FUNDS PERIOD
During the Certain Funds Period neither the Facility Agent nor any of the
Lenders will:
(a) invoke any conditions set out in clause 4.3 (Additional conditions
precedent) as a ground for refusing to make any Advance during the
Certain Funds Period solely for the purpose specified in clause
2.2(a)(i) or (ii) (an "OFFER UTILISATION");
(b) exercise any right, power or discretion to terminate or cancel the
obligation to make any Offer Utilisation (other than under clause
15.2 (Illegality)); or
(c) exercise any right of rescission which it or they may have in
respect of this Agreement or in respect of any Offer Utilisation,
unless (i) a Drawstop Default has occurred or (ii) there has been
a material adverse change in the business, assets or financial
condition of either the Jersey Target Group or the US Target Group
since the date to which the Original Audited Accounts were
prepared other than changes that are generally applicable to the
nursing home or healthcare industry or any material changes in the
financial or capital markets in general which in either case do
not adversely affect the Jersey Target Group or the US Target
Group to a materially greater extent than other entities in the
same or similar lines of business and other than as disclosed in
the Reports or the Disclosure Letter.
4.6 FIFE LOAN REPAYMENT CONDITIONS PRECEDENT
(a) The Revolving Lenders shall not be under any obligation to make
any Drawing under the Revolving Facility available to any Borrower
for the purpose of the Fife Loan Repayment unless on or before the
Drawdown Date for such Drawing, the Facility Agent has received
each of the documents, information and other items specified in
Part 3 of Schedule 4 in respect of each of the Fife Obligors (or
the Facility Agent is satisfied that, subject only to the making
of the relevant Drawing it will receive such documents,
information and/or other items (in form and substance satisfactory
to the Facility Agent acting reasonably)).
(b) Any Drawing under the Revolving Facility for the purpose of the
Fife Loan Repayment must be made prior to the date falling 3
months after the Unconditional Date.
4.7 CONDITIONS SUBSEQUENT
(a) The Parent shall procure that immediately after the later of the
Unconditional Date and the date falling three months of the date
of this agreement, a first ranking legal charge is executed in
favour of the Security Agent against the freehold interest held by
Lunan House Limited in the property known as Lunan House in
Scotland and shall procure registration at the Scottish Land
Registry and Companies House (or in each case their Scottish
equivalents) of that charge and following such registrations
deliver the relevant charge certificate to the Security Agent or
their solicitors.
(b) The Borrower shall apply within 14 days of the Unconditional Date
to Nursing Home Properties plc and Reit Asset Management for
consent under the relevant leases to the Parent acquiring a
controlling interest in the Idun Group and will take all
reasonable steps to obtain that consent provided that the Parent
shall not be required to spend money (other than normal
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professional fees) or commence legal proceedings or enter into
commercial negotiations with either landlord in order to obtain
the requisite consent
5. DRAWDOWN PROCEDURES
5.1 DELIVERY OF DRAWDOWN REQUESTS
In order to utilise a Facility, the relevant Borrower must deliver to the
Facility Agent a duly completed Drawdown Request not later than 10.00 am
three Business Days before the proposed Drawdown Date.
5.2 CONTENT OF DRAWDOWN REQUESTS
Each Drawdown Request delivered to the Facility Agent must be in the
applicable form set out in schedule 5 and must specify (or attach, as
appropriate) the following:
(a) which Facility is to be utilised;
(b) the identity of the Borrower;
(c) the proposed Drawdown Date, which must be a Business Day during
the relevant Availability Period;
(d) if the Drawing is by way of Advance, the amount and currency of
that Advance, which must:
(i) in the case of a Term A Advance in Sterling, be equal to or
less than the undrawn Commitments for the Term A Facility
or in the case of a Drawing in an Optional Currency under
the Term A Facility the Sterling Equivalent of the Drawing
must be equal to or less than the undrawn Commitments for
the Term A Facility and in each case if less, a minimum of
(pound)500,000 (or its Sterling Equivalent) and an integral
multiple of (pound)100,000 (or its Sterling Equivalent);
(ii) in the case of a Term B Advance in Sterling, be equal to or
less than the undrawn Commitments for the Term B Facility
or in the case of a Drawing in an Optional Currency under
the Term B Facility the Sterling Equivalent of the Drawing
must be equal to or less than the undrawn Commitments for
the Term B Facility and in each case if less, a minimum of
(pound)500,000 (or its Sterling Equivalent) and an integral
multiple of (pound)100,000 (or its Sterling Equivalent);
(iii) in the case of a Term C Advance in Sterling, be equal to or
less than the undrawn Commitments for the Term C Facility
or in the case of a Drawing in an Optional Currency under
the Term C Facility the Sterling Equivalent of the Drawing
must be equal to or less than the undrawn Commitments for
the Term C Facility and in each case if less, a minimum of
(pound)500,000 (or its Sterling Equivalent) and an integral
multiple of (pound)100,000 (or its Sterling Equivalent);
and
(iv) in the case of a Cash Bridge Advance in Sterling, be equal
to or less than the undrawn Commitments for the Cash Bridge
Facility or in the case of a Drawing in an Optional
Currency under the Cash Bridge Facility the Sterling
Equivalent of the Drawing must be equal to or less than the
undrawn Commitments for the Cash Bridge Facility and in
each case if less, a minimum of (pound)500,000 (or its
Sterling Equivalent) and an integral multiple of
(pound)100,000 (or its Sterling Equivalent);
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(e) if the Drawing is by way of an Advance, the duration of the
Interest Period applicable to the Revolving Advance or the first
Interest Period applicable to the relevant Term Advance or Cash
Bridge Advance (as the case may be), which must comply with clause
9 (Selection of Interest Periods);
(f) if the Drawing is by way of an Advance, details of the payee and
the account to which the proceeds of the Drawing are to be paid;
and
(g) if the Drawing is by way of a Bank Guarantee:
(i) the amount and currency of that Bank Guarantee, which must
be in an Original Sterling Amount equal to or less than the
Total Available Commitments;
(ii) the Beneficiary of that Bank Guarantee;
(iii) the expiry date of that Bank Guarantee, which must be a
date on or before the Revolving Facility Repayment Date;
(iv) the obligation to which the issue of that Bank Guarantee
relates;
(v) the execution copy of the Bank Guarantee to be issued; and
(vi) the Drawdown Date, which must be a Business Day at least 3
Business Days after the date of the Drawdown Request.
5.3 REQUESTS IRREVOCABLE
A Drawdown Request once given may not be withdrawn or revoked.
5.4 NUMBER AND FREQUENCY OF REQUESTS
(a) No more than 5 Term Advances and one Cash Bridge Advance may be
outstanding at any one time.
(b) If two or more Term Advances at any time have Interest Periods
ending on the same date, they shall be deemed amalgamated into one
Term Advance on the last day of that Interest Period.
(c) No more than one Drawing of the Revolving Facility may be
requested in any period of 3 consecutive Business Days and no more
than 8 Drawings of the Revolving Facility (or any higher number of
Drawings agreed by the Facility Agent) may be outstanding at any
one time. However, if 8 Revolving Advances have been borrowed but
amounts remain undrawn under the Revolving Facility, a further
Revolving Advance may be drawn provided it is drawn down on the
first day of an Interest Period applicable to an existing
Revolving Advance or on the Repayment Date for an existing
Revolving Advance which is being rolled-over. Forthwith on
drawdown the new Revolving Advance will be consolidated with the
existing Revolving Advance and they will for all purposes then be
treated as a single Revolving Advance.
(d) No Revolving Advance may be borrowed unless all the Term Advances
and the Cash Bridge Advance specified in clauses 2.1(a), (b), (c)
and (d) (Facilities) have been, or are being, advanced on or
before the proposed Drawdown Date of the relevant Revolving
Advance.
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5.5 NOTICE TO THE LENDERS OF A PROPOSED DRAWING
The Facility Agent will promptly give each Lender details of each
Drawdown Request received and of the amount of that Lender's
participation in the Drawing referred to in that Drawdown Request.
5.6 MAKING OF ADVANCES
Subject to the provisions of this agreement, each Lender will make
available to the Facility Agent its participation in the relevant Advance
on the relevant Drawdown Date.
5.7 ISSUE OF BANK GUARANTEES
Subject to the provisions of this agreement (including satisfaction of
all applicable conditions precedent), the relevant Issuing Lender will
issue the relevant Bank Guarantee requested by the relevant Borrower by
delivery of that Bank Guarantee to the relevant Beneficiary on the
relevant Drawdown Date. A Bank Guarantee may be requested by a Borrower
for the use by or benefit of a Group Company which is not a Borrower
provided that such Group Company which is a Borrower shall be liable in
accordance with this agreement in respect of that Bank Guarantee as if it
had been issued for its own use and benefit.
5.8 EXPIRY
No Drawing of the Revolving Facility will be permitted which gives rise
to an actual or contingent liability of the relevant Borrower to any
Lender which may mature after or otherwise extend beyond the Revolving
Facility Repayment Date.
5.9 AUTOMATIC CANCELLATION
Any part of the Term Commitments or the Cash Bridge Commitments undrawn
by 2.30pm on the last day of the relevant Availability Period will be
automatically cancelled.
5.10 OPTIONAL CURRENCY AVAILABILITY
If a Borrower requests a Drawing denominated in an Optional Currency
under the Term Facilities, the Cash Bridge Facility or the Revolving
Facility and, before 10.00 am on the Rate Fixing Day for that Drawing,
the Facility Agent receives notice from a Lender (an "AFFECTED LENDER")
that:
(a) the Optional Currency requested is not readily available to it in
the amount required; or
(b) compliance with its obligation to participate in a Drawing in the
Optional Currency requested would contravene a law or regulation
applicable to that Affected Lender, then:
(i) the Facility Agent will notify the relevant Borrower to
that effect by 12.00 am (noon) on that Rate Fixing Day;
(ii) following any such notification the relevant Borrower may
notify the Facility Agent by 2.00pm on that Rate Fixing Day
that it no longer requires that Drawing to be made;
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(iii) if the Facility Agent does not receive notification under
clause 5.10(b)(ii), the relevant Borrower and the Facility
Agent shall agree to adjust the amount of the Drawing to
exclude the participation of the Affected Lender; and
(iv) in the case of a Drawing by way of Advance, the Affected
Lender shall make a separate Term Advance, Cash Bridge
Advance or Revolving Advance in Sterling in an amount equal
to the Sterling Equivalent of the Affected Lender's
proposed participation in the Advance requested.
5.11 OPTIONAL CURRENCY FLUCTUATIONS
(a) The Facility Agent shall, if so requested by the Majority Lenders:
(i) calculate the aggregate Sterling Equivalent of all
outstanding Drawings under the Term Facilities, the Cash
Bridge Facility and Revolving Facility as at the end of the
Accounting Quarter in which that request was made (or on
any other date reasonably requested by the Majority
Lenders); and
(ii) if the amount calculated under clause 5.11(a)(i) exceeds
the aggregate Term A Commitments, Term B Commitments, Term
C Commitments, Cash Bridge Commitments or Revolving
Commitments (as reduced in the case of the Revolving
Commitments by the aggregate Ancillary Limits of all the
Revolving Lenders) by more than five per cent., notify the
Parent to that effect.
(b) Within five Business Days of any notification under clause
5.11(a)(ii), the Parent shall prepay (or procure the prepayment
of) Drawings under the relevant Facility so as to reduce the
aggregate Sterling Equivalent of all outstandings under each such
Facility to an amount not exceeding the aggregate Term A
Commitments, Term B Commitments, Term C Commitments, Cash Bridge
Commitments or Revolving Commitments (as reduced by the aggregate
Ancillary Limits of all the Revolving Lenders) (as the case may
be).
6. ANCILLARY FACILITIES
6.1 PROVISION OF ANCILLARY FACILITIES
(a) The Parent may, at any time during the Availability Period for the
Revolving Facility, notify the Facility Agent that a Borrower
proposes to establish Ancillary Facilities with an Ancillary
Lender. The notice must specify:
(i) the Revolving Lender which has agreed to make those
Ancillary Facilities available;
(ii) the date from which those Ancillary Facilities will be
available (which must be at least ten Business Days after
the date on which the Facility Agent receives that notice)
(the "EFFECTIVE DATE");
(iii) the expiry date of those Ancillary Facilities (which must
be a Business Day on or before the Revolving Facility
Repayment Date);
(iv) the type of those Ancillary Facilities;
(v) the Ancillary Limit for those Ancillary Facilities; and
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(vi) any other details relating to those Ancillary Facilities
which the Facility Agent reasonably requires.
(b) The Facility Agent shall notify each Lender as soon as reasonably
practicable after it receives any such notice.
(c) Any Revolving Lender which has agreed to make Ancillary Facilities
available shall, with effect from the Effective Date, become an
Ancillary Lender and, subject to the terms of this clause 6, be
authorised to make available the Ancillary Facilities specified in
the relevant notice referred to in clause 6.1(a).
6.2 LIMITATIONS ON ANCILLARY FACILITIES
(a) The total Ancillary Limits may not exceed (pound)1,000,000 (or its
equivalent in Optional Currencies) without the prior consent of
the Facility Agent.
(b) The aggregate of the Revolving Advances, the total Contingent
Liabilities in relation to Bank Guarantees and the total Ancillary
Outstandings at any time may not exceed the aggregate Revolving
Commitments.
(c) The Ancillary Limit for an Ancillary Lender may not at any time
exceed the Revolving Commitment of that Ancillary Lender and the
Ancillary Outstandings owing to an Ancillary Lender may not at any
time exceed the Ancillary Limit of that Ancillary Lender.
(d) If the Ancillary Limit of an Ancillary Lender would exceed its
Revolving Commitment, it may reduce that Ancillary Limit by an
amount equal to the excess and require the Borrowers to prepay the
Ancillary Outstandings in the amount necessary to procure that the
Ancillary Outstandings do not exceed that Ancillary Limit.
6.3 TERMS OF ANCILLARY FACILITIES
The terms on which Ancillary Facilities are made available shall be as
set out in the relevant Ancillary Facility Letter. Each Ancillary
Facility Letter shall be in a form approved by the Facility Agent (that
approval not to be unreasonably withheld or delayed if that Ancillary
Facility Letter complies with the requirements of the Senior Finance
Documents).
6.4 FEES
No Ancillary Lender shall charge fees in relation to Ancillary Facilities
any greater than:
(a) a margin over cost of funds or base rate on any funded drawings
under the Ancillary Facilities equal to the Margin applicable to
the Revolving Facility;
(b) a fee on the contingent liability of the Ancillary Lender in
relation to any instrument giving rise to a contingent liability
of the Ancillary Lender to any person other than the Borrower for
whose account it was issued equal to the commission payable under
clause 16.4 (Bank Guarantee commission); and
(c) usual bank charges and expenses payable in connection with the
provision of the Ancillary Facilities, as agreed between the
Parent and the relevant Ancillary Lender.
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6.5 DEFAULT
If an Event of Default is outstanding, an Ancillary Lender may (but,
before notice is served under clause 21.2 (Cancellation and repayment),
only if so instructed by the Facility Agent) and will, if so instructed
by the Majority Lenders:
(a) terminate the availability of the Ancillary Facilities made
available by it; and/or
(b) declare all amounts outstanding under the Ancillary Facilities
made available by it to be immediately due and payable; and/or
(c) require the provision of cash cover in an amount equal to the
aggregate contingent liability of that Ancillary Lender under all
instruments issued under the relevant Ancillary Facility Letter
which give rise to a contingent liability of that Ancillary Lender
to any person other than the Borrower for whose account the
relevant instrument was issued; and/or
(d) terminate any hedging agreement entered into by that Ancillary
Lender under the terms of the Ancillary Facilities made available
by it.
7. DEMANDS UNDER BANK GUARANTEES
7.1 DEMANDS
Each Issuing Lender shall, as soon as reasonably practicable after
receipt by it of any demand under any Bank Guarantee, notify the Facility
Agent of the amount of that demand and the Facility Agent, as soon as
reasonably practicable after receipt of any such notice, shall notify the
Parent, the Borrower at whose request that Bank Guarantee was issued (the
"ACCOUNT PARTY") and the Revolving Lenders.
7.2 PAYMENTS
(a) The Account Party shall, immediately after receipt of any notice
from the Facility Agent under clause 7.1 (Demands), pay to the
Facility Agent (for the account of the relevant Issuing Lender)
the amount demanded from that Issuing Lender (as notified to the
Facility Agent under clause 7.1 (Demands)), less any amount
standing to the credit of any Cash Collateral Account which has
been paid to the credit of that Cash Collateral account to provide
cash cover in relation to the Bank Guarantee under which the
relevant Issuing Lender has received demand (a "RELEVANT CREDIT").
(b) The Facility Agent shall pay to the relevant Issuing Lender any
amount received by it from the Account Party under clause 7.2(a),
together with any Relevant Credit.
(c) The Facility Agent is irrevocably authorised by the Account Party,
following a demand under any Bank Guarantee, to apply any Relevant
Credit in satisfaction of the Account Party's obligations in
relation to that Bank Guarantee.
7.3 AUTHORITY TO PAY
The Account Party irrevocably authorises each Issuing Lender to pay
(without investigation or confirmation by it) any demand which appears on
its face to be validly made under any Bank Guarantee issued by that
Issuing Lender and agrees that, as between itself, the relevant Issuing
Lender
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and the Lenders, that demand (in the absence of manifest error by the
Beneficiary) shall be conclusive evidence that the demand has been
properly made.
7.4 INDEMNITIES
(a) The Account Party irrevocably and unconditionally agrees to
indemnify each Issuing Lender on demand against all losses which
may be suffered or incurred by that Issuing Lender under or in
connection with any Bank Guarantee.
(b) Without prejudice to the Account Party's obligations under clause
7.4(a), each Revolving Lender irrevocably, unconditionally and
severally agrees to pay to each Issuing Lender on demand an amount
equal to its proportion of the amount which that Issuing Lender
has paid under the relevant Bank Guarantee less the amount
recovered from the Account Party under clause 7.4(a). No Revolving
Lender is liable under this clause 7.4(b) for a Bank Guarantee
(unless the relevant Revolving Lender fails to pay the relevant
Issuing Lender on demand, in which event it will compensate that
Issuing Lender for all losses it suffers as a result of that
failure).
(c) The Account Party irrevocably and unconditionally agrees to pay to
each Revolving Lender on demand an amount equal to all payments by
that Revolving Lender under clause 7.4(b) and to indemnify that
Revolving Lender against all other losses which may be suffered or
incurred by that Revolving Lender under or in connection with its
obligations under clause 7.4(b).
7.5 INTEREST
The Account Party shall pay interest on all amounts paid by an Issuing
Lender under or in connection with any Bank Guarantee or by any Lender
under clause 7.4(b) (Indemnities) from (and including) the date of
payment by that Issuing Lender or that Lender up to (and including) the
date of payment, calculated and payable in accordance with clause 8.4
(Default interest).
7.6 CONTINUING INDEMNITY
(a) The indemnities contained in clause 7.4 (Indemnities) (the
"INDEMNITIES"):
(i) are a continuing security and will remain in full force and
effect until all the amounts to which the Indemnities are
expressed to relate have been paid in full; and
(ii) are in addition to and are not in any way prejudiced by any
other security now or subsequently held by any person.
(b) Any settlement or discharge of any claim under any of the
Indemnities shall be conditional on no payment made under the
Indemnities being avoided or set aside or ordered to be refunded
by virtue of any provision of any enactment relating to
bankruptcy, insolvency or liquidation.
7.7 NO DISCHARGE
The Indemnities shall not be discharged, diminished or in any way
adversely affected as a result of any of the following (whether or not
known to any Obligor or Finance Party):
(a) any time or waiver given to, or composition made with, any Obligor
or any other person;
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(b) any amendment to, or replacement of, any Senior Finance Document
(however fundamental), or any other agreement or security;
(c) the taking, variation, compromise, renewal, release or refusal or
neglect to perfect or enforce any right, remedies or security
against any Obligor or any other person;
(d) any purported obligation of any Obligor or any other person to any
Finance Party (or any security for that obligation) becoming
wholly or partly void, invalid, illegal or unenforceable for any
reason;
(e) any incapacity, lack of power, authority or legal personality or
any change in the constitution of, or any amalgamation,
consolidation or reconstruction of, any Obligor, Finance Party or
other person;
(f) any Obligor or other person becoming insolvent, going into
receivership or liquidation, having an administrator appointed or
becoming subject to any other procedure for the suspension of
payments to or protection of creditors; or
(g) any other act, omission, circumstance, matter or thing which, but
for this provision, might operate to impair the Indemnities.
7.8 NO SUBROGATION
No Obligor shall, by virtue of any payment made under the Indemnities,
claim any right of subrogation, contribution or indemnity against any
person for so long as any amount remains payable or capable of becoming
payable under any Senior Finance Document.
8. INTEREST
8.1 RATE
(a) Subject to sub-paragraph (b) below the rate of interest on each
Advance for each of its Interest Periods is the rate per annum
determined by the Facility Agent to be the aggregate of:
(i) the Margin for that Advance;
(ii) EURIBOR (in the case of an Advance denominated in Euro or
National Currency Units) or LIBOR (in the case of any other
Advance) for that Advance during that Interest Period; and
(iii) the Mandatory Cost (if any) for that Advance during that
Interest Period.
(b) In respect of the Term C Facility, in addition to the interest
referred to above, each Term C Advance shall bear additional
interest (calculated in accordance with this clause 8) at the
Capitalising Rate ("TERM C CAPITALISING INTEREST") and on each
anniversary of the Unconditional Date an amount equal to the Term
C Capitalising Interest shall be capitalised so as to form part of
the Term C Advance, and shall thereafter bear interest together
with the rest of the Term C Advance in accordance with this clause
8.
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8.2 CALCULATION
Interest will accrue daily from and including the first day of an
Interest Period and be calculated on the basis of a 365 day year in
relation to any Advance in Sterling (or any other currency where market
practice so requires) and a 360 day year in any other case.
8.3 PAYMENT
Each Borrower will pay interest (other than the Term C Capitalising
Interest) accrued on each Advance made to it to the Facility Agent (for
the account of the Lenders) in arrear on the last day of each Interest
Period for that Advance and also, where that Interest Period is longer
than six months, on the last day of each consecutive period of six months
from (and including) the first day of that Interest Period.
8.4 DEFAULT INTEREST
If an Obligor fails to pay any amount under any Senior Finance Document
on its due date (including any amount payable under this clause 8.4) (an
"OVERDUE AMOUNT"), that Obligor will pay default interest on that overdue
amount from its due date to the date of actual payment (both before and
after judgment) at a rate (the "DEFAULT RATE") determined by the Facility
Agent to be one per cent. per annum above:
(a) where the overdue amount is principal which has become due and
payable before the expiry of the relevant Interest Period, the
rate applicable to that principal immediately before the date it
fell due (but only for the period from that due date to the end of
the relevant Interest Period); or
(b) in any other case (including principal falling within clause
8.4(a) once the relevant Interest Period has expired), the rate
which would be payable if the overdue amount was an Advance made
for a period equal to the period of non-payment divided into
successive Interest Periods of a duration selected by the Facility
Agent (each a "DEFAULT INTEREST PERIOD").
For the purposes of determining the rate of interest on an overdue
amount under this clause 8.4, the Margin will be:
(i) if that amount comprises principal or interest or any other
amount due in relation to a Facility, the Margin relating
to that Facility; or
(ii) if that amount is not properly attributable to a Facility,
the Margin under the Term C Facility.
8.5 COMPOUNDING
Default interest will be payable on demand by the Facility Agent and will
be compounded at the end of each Default Interest Period.
8.6 MARGIN ADJUSTMENT:
(a) Subject to clause 8.2 and clauses 8.6(b) to (d) (inclusive), if at
any time on or after 30 September 2003 any Quarterly Accounts
delivered during the four most recently preceding Accounting
Quarters show that, as at the Testing Date for that Accounting
Quarter, the ratio of
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Target Total Net Debt to Target Adjusted EBITDA is less than
2.50:1.00 then the Margin applicable to the Term A Facility shall
be reduced to the rate per annum set out in the second column of
the table below, and the Margin applicable to the Revolving
Facility shall be reduced to the rate per annum set out in the
third column of the table below depending on the ratio actually
achieved as specified in column 1 of the table below.
(1) (2) (3)
SENIOR DEBT TO EBITDA TERM A FACILITY REVOLVING FACILITY MARGIN
MARGIN (%)
(%)
Less than 2.50:1.00 but more than or 2.00 2.00
equal to 2.00:1.00
Less than 2.00:1.00 1.75 1.75
(b) Any reduction in the Margin under clause 8.6(a) shall take effect
on the first day of the first Interest Period occurring after the
date on which the Facility Agent has received the Quarterly
Accounts for the Accounting Quarter ending on the last day of the
12 months period referred to in clause 8.6(a) (together with the
corresponding Compliance Certificates) until (but excluding) the
date (a "READJUSTMENT DATE") which is the earlier of:
(i) the date on which the Facility Agent receives the Quarterly
Accounts for the immediately following Accounting Quarter
(together with the corresponding Compliance Certificate);
and
(ii) the latest date by which the Facility Agent should have
received the Quarterly Accounts referred to in clause
8.6(b)(i) under clause 20.10(c)(ii) (FSHC Financial
statements) and under clause 20.10(d)(ii) (PHFL Financial
Statements).
and, on each Readjustment Date, the Margin applicable to
the Term A Facility and the Margin applicable to the
Revolving Facility shall return to 2.25 per cent. per
annum, unless a lower Margin is applicable under this
clause 8.6.
(c) The Margin applicable to the Term A Facility and the Margin
applicable to the Revolving Facility shall not, on any one
occasion for that reduction in accordance with clauses 8.6(a) and
(b), be reduced by more than 0.25 per cent. per annum.
(d) No decrease in the Margin shall take effect if an Event of Default
is outstanding. If an Event of Default occurs, the Margin
applicable to the Term A Facility and the Margin applicable to the
Revolving Facility shall immediately return to (if it is not
already) 2.25 per cent. per annum, until the time when no Default
is outstanding, (when the Margin will again be determined in
accordance with this clause 8.6). For the purpose of this clause
8.6, any Event of Default under clause 21.(b)(i) (Breach of other
obligations), occurring as a result of an Obligor failing to
comply with clause 20.14 (Financial covenants) only, shall be
deemed to have been remedied if the Obligor is in compliance with
the provisions of clause 20.14 (Financial covenants) for the next
Testing Date following such Event of Default, and provided the
Facility Agent has not issued a notice under clause 21.2
(Cancellation and repayment) during such time.
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(e) If:
(i) the Margin is:
(A) decreased or increased in accordance with this
clause 8.6 by reference to Quarterly Accounts; or
(B) Quarterly Accounts indicate that no change in the
Margin is required; and
(ii) subsequent Annual Accounts shown that the Margin should
have been higher or lower than the level shown by those
Quarterly Accounts, then:
(A) where the subsequent Annual Accounts show that the
Margin should have been higher than the level shown
by those Quarterly Accounts, the Parent shall,
promptly following demand by the Facility Agent, pay
(or procure that the Borrowers pay) to the Facility
Agent for the account of the Lenders the additional
amount which would have been payable by the
Borrowers if the Margin had been increased to the
correct level during the relevant periods as shown
by the relevant Annual Accounts; and
(B) where the subsequent Annual Accounts show that the
Margin should have been lower than the level shown
by those Quarterly Accounts, then the Margin shall
reduce with immediate effect in respect of interest
accrued but unpaid in the first Interest Period
occurring after receipt of such Quarterly Accounts
up to a maximum accrual period of 3 months.
The Facility Agent's determination of any
adjustments payable under this clause 8.6(f) shall,
except in the case of the manifest error, be
conclusive.
8.7 NOTIFICATION
The Facility Agent will notify the Parent and the Lenders of each
determination of an interest rate (including a default rate) and each
selection of a Default Interest Period under this clause 8 as soon as
reasonably practicable after any such determination or selection is made.
9. SELECTION OF INTEREST PERIODS
9.1 TERM AND CASH BRIDGE FACILITIES
(a) Subject to clause 3.4(a)(iii) (Syndication) and the other
provisions of this agreement, each Interest Period for a Term
Advance or a Cash Bridge Advance shall be one, two, three or six
months as notified by Jersey Bidco or FSHC Holdco (as the case may
be) to the Facility Agent no later than 10.00 am one Business Day
for Sterling Advances (three Business Days for Advances in
Optional Currencies) before the start of that Interest Period (or
any other period which the Facility Agent may agree).
(b) The first Interest Period for a Term Advance or a Cash Bridge
Advance will start on its Drawdown Date and each subsequent
Interest Period for that Term Advance or Cash Bridge Advance will
start on the last day of the immediately preceding Interest Period
for that Term Advance or Cash Bridge Advance (as the case may be).
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(c) Jersey Bidco and FSHC Holdco (as the case may be) will select
Interest Periods for a Term Advance or a Cash Bridge Advance so
that each Repayment Date for that Term Advance or Cash Bridge
Advance will fall on the last day of an Interest Period and, for
this purpose, Jersey Bidco or FSHC Holdco (as the case may be) may
split any Term Advance into two separate Term Advances one of
which shall (if applicable) be in an amount at least equal to the
amount of the instalment due on the next following Repayment Date
relating to that Term Advance and will have an Interest Period
expiring on that Repayment Date.
(d) If a Borrower fails to select an Interest Period then, save as
provided in this clause 9, it will be deemed to have selected a
period of three months or any shorter period which is necessary to
comply with the requirements of clause 9.1(c).
9.2 REVOLVING FACILITY
Subject to the provisions of this agreement, the Interest Period for each
Revolving Advance shall be one, two, three or six months, as selected by
the relevant Borrower in the relevant Drawdown Request (or any other
period which the Facility Agent may agree).
9.3 NON-BUSINESS DAYS
If any Interest Period would, but for this clause 9.3, end on a day which
is not a Business Day, that Interest Period shall be extended to (and the
Maturity Date in the case of a Revolving Advance shall be) the
immediately following Business Day, unless the result of that extension
would be to carry that Interest Period into another calendar month, in
which case that Interest Period shall end on (and that Maturity Date
shall be) the immediately preceding Business Day.
10. MARKET DISRUPTION
10.1 MARKET DISRUPTION NOTICE
If, in relation to any Advance (an "AFFECTED ADVANCE"):
(a) the Facility Agent determines that, by reason of circumstances
affecting the applicable interbank market generally, adequate and
fair means do not or will not exist for ascertaining LIBOR or
EURIBOR (as the case may be) applicable to that Affected Advance
for an Interest Period; or
(b) Lenders whose participations in that Affected Advance exceed 33
per cent. of the amount of that Affected Advance notify the
Facility Agent that deposits will not be available to them in the
London Interbank Market in order to fund their participations in
that Affected Advance for an Interest Period or that (other than
due to the credit rating of the relevant Lender or Lenders) their
cost of obtaining deposits in order to fund their participations
in that Affected Advance for an Interest Period would exceed LIBOR
or EURIBOR (as the case may be),
the Facility Agent will give notice of that event to the Parent
and the Lenders (a "MARKET DISRUPTION NOTICE").
10.2 SUBSTITUTE BASIS
During the 30 days following the giving of a Market Disruption Notice,
the Facility Agent and the Parent will negotiate in good faith in order
to agree on a mutually acceptable substitute basis for
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calculating the interest payable on the relevant Affected Advance. If a
substitute basis is agreed within that period, then it shall apply in
accordance with its terms (and may be retrospective to the beginning of
the relevant Interest Period). The Facility Agent will not agree a
substitute basis under this clause 10.2 without first obtaining the
approval of the Lenders.
10.3 COST OF FUNDS
Unless and until a substitute basis is agreed under clause 10.2
(Substitute basis), the interest payable on each Lender's participation
in the relevant Affected Advance for the relevant Interest Period will be
the rate certified by that Lender to be its cost of funds (from any
source which it may reasonably select) plus the applicable Mandatory Cost
plus the applicable Margin.
10.4 UNAVAILABILITY OF STERLING
If, in relation to any proposed Drawing by way of an Advance, Lenders
whose participations in that Advance exceed 33 per cent. of the amount of
that Advance notify the Facility Agent that deposits in Sterling will not
be readily available to them in the London interbank market in order to
enable them to fund their participations in that Advance, the Lenders
will not be obliged to participate in the proposed Drawing and any
Drawdown Request which has been served by the relevant Borrower will be
deemed withdrawn.
11. REPAYMENT OF DRAWINGS
11.1 TERM ADVANCES
(a) Jersey Target shall repay the Term A Advances in semi-annual
instalments. Each such semi-annual instalment will fall due for
repayment on each date specified below. The amount in total which
must be repaid on each such date (the "STERLING A INSTALMENT
AMOUNT") shall be the amount specified opposite that date,
calculated as an Original Sterling Amount. Any balance of the
aggregate outstanding principal amount of the Term A Advances
remaining outstanding on the Term A Final Repayment Date shall be
repaid in full on that date.
The repayment dates and amounts are:
DATE STERLING A INSTALMENT AMOUNT
---- ----------------------------
31 January 2003 (pound)1,500,000
31 July 2003 (pound)2,000,000
31 January 2004 (pound)1,875,000
31 July 2004 (pound)1,875,000
31 January 2005 (pound)2,375,000
31 July 2005 (pound)2,375,000
31 January 2006 (pound)2,500,000
31 July 2006 (pound)2,500,000
31 January 2007 (pound)2,500,000
31 July 2007 (pound)2,500,000
31 January 2008 (pound)2,500,000
31 July 2008 (pound)2,500,000
31 January 2009 (pound)2,500,000
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DATE STERLING A INSTALMENT AMOUNT
---- ----------------------------
31 July 2009 (pound)2,500,000
(b) Jersey Target and/or FSHC Holdco shall repay the Term B Advances
outstanding on the Term B Final Repayment Date in full on that
date.
(c) Jersey Target and/or FSHC Holdco shall repay the Term C Advances
outstanding on the Term C Final Repayment Date in full on that
date.
(d) FSHC Holdco shall repay the Cash Bridge Advances outstanding on
the Cash Bridge Final Repayment Date in full on that date.
(e) No amount repaid in relation to a Term Advance or a Cash Bridge
Advance may be redrawn.
11.2 REVOLVING ADVANCES
(a) Each Borrower of any Revolving Advance shall repay that Advance on
its Maturity Date.
(b) Any amount repaid under the Revolving Facility may be redrawn in
accordance with clause 5 (Drawdown Procedures).
(c) On the Revolving Facility Repayment Date:
(i) the Revolving Facility will expire and the Revolving
Commitment of each Lender will be reduced to zero; and
(ii) each Borrower will repay or prepay all amounts outstanding
and owed by it in relation to the Revolving Facility
(together with all its Contingent Liabilities).
12. PREPAYMENT AND CANCELLATION
12.1 VOLUNTARY PREPAYMENT:
A Borrower may prepay all or any part of a Term A Advance or a Term B
Advance at any time, provided that:
(a) the Facility Agent has received no less than ten Business Days
irrevocable notice from the Parent of the proposed date and amount
of the prepayment;
(b) any partial prepayment is in a minimum amount of (pound)250,000
(or its Sterling Equivalent) and, if greater, an integral multiple
of (pound)50,000 (or its Sterling Equivalent); and
(c) if paid other than on the last day of the Interest Period for that
Term Advance, the relevant Borrower indemnifies the Lenders under
clause 29.1 (General indemnity and breakage costs).
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12.2 ADDITIONAL RIGHT OF PREPAYMENT
If:
(a) a Borrower is required to pay any additional amount to a Finance
Party under clause 14.1 (Gross up) or clause 14.3; or
(b) the Parent is required to pay any amount to a Lender under clause
15.1 (Increased costs),
then, without prejudice to the obligations of any Obligor under
those clauses, the Parent may, whilst the circumstances continue,
serve a notice of prepayment and cancellation on that Lender
through the Facility Agent. If the Parent serves any such notice:
(i) on the date which is ten Business Days after the date of
service of the notice, each Borrower shall:
(A) prepay that Lender's participation in all Advances
and Ancillary Outstandings drawn by it together with
accrued interest on those Advances and all other
amounts payable to that Lender under the Senior
Finance Documents; and
(B) provide cash cover in accordance with clause 1.4
(Cash cover) in an amount equal to the total
Contingent Liability (if any) of that Lender in
relation to Bank Guarantees and the total contingent
liabilities of that Lender under any relevant
Ancillary Facility; and
(ii) all that Lender's Commitments shall be cancelled and
reduced to zero as at the date of service of the notice.
12.3 SALE, CHANGE OF CONTROL AND LISTING
(a) If a Change of Control, Listing or Sale occurs then (unless the
Majority Lenders otherwise agree in writing):
(i) all of the Lenders' Commitments will immediately be
cancelled and reduced to zero; and
(ii) each Borrower will immediately prepay all Advances drawn by
it, all Bank Guarantees issued for its account and all sums
advanced to it and all contingent liabilities issued for
its account under any Ancillary Facility.
(b) For the purposes of this agreement:
(i) a "CHANGE OF CONTROL" will occur if the Lead Equity
Investors:
(A) cease after the date of this agreement to be the
legal and beneficial owners of (i) more than 50 per
cent. of the equity share capital of either the
Parent or Jersey Holdco or (ii) equity share capital
having the right to cast more than 50 per cent. of
the votes capable of being cast in general meetings
of the Parent or of Jersey Holdco; or
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(B) cease after the date of this agreement to have the
right to determine the composition of a majority of
the board of directors (or like body) of the Parent
or of Jersey Holdco; or
(C) cease after the date of this agreement to have
"control" (as defined in section 839 Income and
Corporation Taxes Act 1988) of the Parent or of
Jersey Holdco;
(ii) "LISTING" means
(A) admission to trading of all or any part of the share
capital of any Group Company on any recognised
investment exchange (as defined in the Financial
Services and Markets Act 2000) or any other sale or
issue by way of flotation or public offering or any
equivalent circumstances in relation to any Group
Company or any Holding Company of the Parent or
Jersey Holdco in any jurisdiction or country;
(B) the raising of funds by any Group Company in the
national or international equity markets (by way of
IPO, private placement of new shares, public
offering or otherwise); and
(iii) "SALE" means a disposal (whether in a single transaction or
a series of related transactions) of all or substantially
all of the assets of the FSHC Group or the PHFL Group.
12.4 ASSET DISPOSALS
(a) The Parent shall procure that an amount equal to the Net Proceeds
of a disposal of any asset by a Group Company (other than a
disposal permitted by clauses 20.3(a)(i), (iv) and (vii)
(Disposals)) (to the extent that the amount when aggregated with
the Net Proceeds of all other such disposals made in the same
calendar year exceeds (pound)250,000 (or its Sterling
Equivalent)), is applied in prepayment of the Facilities (subject
to clause 12.4(b).
(b) Net Proceeds, other than the Net Proceeds from the Australian
Disposal, need not be so applied if:
(i) within 180 days after receipt they are reinvested in assets
of a similar type and value required for the business of
the disposing Group Company; and
(ii) following receipt and pending that reinvestment they are
held in a Cash Collateral Account.
12.5 INSURANCE CLAIMS
(a) Subject to clause 12.5(b), if a Group Company receives any
proceeds exceeding (pound)250,000 (or its Sterling Equivalent), as
a result of making a claim under an insurance policy (other than
proceeds compensating for loss of profit under business
interruption or similar insurance or compensating for loss of
life), the Parent shall procure that an amount equal to those
proceeds (net of any Tax) must be applied in prepayment of the
Facilities.
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(b) Any amount received or recovered as a result of making a claim
under an insurance policy need not be so applied if:
(i) within 180 days after receipt it is applied in reinstating,
replacing, repairing or otherwise investing in assets in
relation to which that amount was received or meeting a
liability in relation to which that amount was received;
and
(ii) following receipt and pending that application, it is held
in a Cash Collateral Account.
12.6 EXCESS CASHFLOW
(a) Within ten Business Days after delivery of each of the Quarterly
Accounts for the Accounting Quarter ending 31 March and the
Quarterly Accounts for the Accounting Quarter ending 30 September
in each calendar year, the Parent shall procure that an amount
equal to 50 per cent. of the amount of Excess Cashflow for the
Relevant Period, minus the aggregate amount of prepayments made in
accordance with clause 12.1 (Voluntary prepayments), 12.4 (Asset
Disposals), and 12.5 (Insurance Claims) and any amount permitted
to be retained by the Group in accordance with those clauses
during (or referable to) that Relevant Period, to the extent that
the relevant amounts or proceeds giving rise to the relevant
prepayments have been included in calculating Cashflow, is applied
in prepayment of the Facilities.
(b) Following the application of clause 12.6(a) for each Relevant
Period, any Excess Cashflow which has not been applied in
prepayment of the Facilities will be available to be advanced to
any Group Company or Excluded Company (by way of loan, equity or
otherwise) for the purpose of financing Approved Acquisitions or
for temporary working capital purposes provided that either:
(i) the Parent has obtained the prior written consent of the
Facility Agent to such advance; or
(ii)
(A) no Default has occurred and is continuing or would
occur as a result of making such advance (and for
the purpose of this clause 12.6, any Event of
Default under clause 21.(b)(i) (Breach of other
obligations), occurring as a result of an Obligor
failing to comply with clause 20.14 (Financial
covenants) only, shall be deemed to have been
remedied if the Obligor is in compliance with the
provisions of clause 20.14 (Financial covenants) for
the next Testing Date following such Event of
Default, and provided the Facility Agent has not
issued a notice under clause 21.2 (Cancellation and
repayment) during such time);
(B) the aggregate amount of all such advances for the
purpose of financing Approved Acquisitions in each
calendar year does not exceed (pound)2,500,000 (or
its Sterling Equivalent);
(C) the aggregate amount of all such advances for
temporary working capital purposes is not in any
calendar year in excess of (pound)1,750,000 (or its
Sterling Equivalent); and
(D) the Parent confirms to the Facility Agent in writing
immediately prior to making any such advance that it
can see no reason as at that date why the
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Group will not be able to comply with the covenants
set out in clause 20.14 (Financial covenants) on the
two immediately following Testing Dates.
12.7 ORDER OF APPLICATION OF PREPAYMENTS
(a) Subject to clause 12.7(d) below, any amount to be applied in
prepayment of the Facilities under clause 12.1 (Voluntary
prepayments), clause 12.4 (Asset disposals), clause 12.5
(Insurance claims) or clause 12.6 (Excess Cashflow) shall be
applied in the following order, in each case until the relevant
Advances or other liabilities have been satisfied in full:
(i) first, in permanent prepayment of the Term A Advances and
the Term B Advances pro rata to the outstanding amount of
those Advances provided that any Term B Lender may elect
not to receive such prepayment in which case such
prepayment shall be applied against the outstanding Term A
Advances;
(ii) second, to the extent any Term B Lender has made an
election in accordance with clause 12.7(a)(i), in permanent
prepayment of the outstanding Term B Advances;
(iii) third, in permanent prepayment of the Term C Advances;
(iv) fourth, in permanent prepayment of the Cash Bridge
Advances;
(v) fifth, in permanent prepayment on a pro rata basis of
Revolving Advances and cash advances outstanding under the
Ancillary Facilities;
(vi) sixth, in prepaying on a pro rata basis any Contingent
Liability or contingent liability under any Ancillary
Facility; and
(vii) seventh, in permanent reduction of any undrawn Revolving
Commitments.
(b) If any amount is applied in accordance with clause 12.7(a)(v) or
(vi) the Revolving Commitments shall immediately be cancelled by
that amount. Any such cancellation shall apply to the Revolving
Commitment of each Revolving Lender on a pro rata basis and that
Revolving Lender's Ancillary Limit, if any, shall be reduced
accordingly.
(c) Any prepayment:
(i) made under clause 12.2 (Additional right of prepayment)
shall be applied pro rata against the scheduled instalments
set out in clause 11.1 (Term Advances) under the Term
Facilities in which the relevant Lender was participating;
and
(ii) to be applied under this clause 12.7 against Term A
Advances shall be applied pro rata against the relevant
scheduled instalments set out in clause 11.1 (Term
Advances).
(d) The Net Proceeds of the Australian Disposal together with amounts
advanced by Alchemy Partners (Guernsey) Limited under the Alchemy
Undertaking shall be applied in permanent prepayment of the Cash
Bridge Advances and, once the Cash Bridge Advances have been
repaid in full, any remaining Net Proceeds of the Australian
Disposal shall be released from the Cash Collateral Account in
which they are held and shall no longer be required to be applied
in accordance with clause 12.4 (Asset disposals).
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12.8 PREPAYMENTS DURING INTEREST PERIODS
Subject to the other provisions of this agreement, any amount required to
be applied in prepayment of the Facilities under clauses 12.4 (Asset
disposals) or 12.5 (Insurance claims) during an Interest Period for that
Advance will be paid by the relevant Borrower into a Cash Collateral
Account and applied (together with any relevant accrued interest) against
that Advance on the expiry of that Interest Period.
12.9 CANCELLATION OF FACILITIES
(a) Subject to clause 12.9(b), the Parent may cancel the Available
Commitments in whole or in part or any undrawn Commitments under
the Term Facilities or the Cash Bridge Facility (but, if in part,
in a minimum of(pound)250,000 (or its Sterling Equivalent) and an
integral multiple of(pound)50,000 (or its Sterling Equivalent)) at
any time during the relevant Availability Period by giving no less
than ten Business Days irrevocable notice to the Facility Agent
specifying the date and amount of the proposed cancellation and,
on any cancellation of the Available Commitments or the undrawn
Commitments under the Term Facilities or the Cash Bridge Facility
(as the case may be), the amount of the relevant Facility will
reduce accordingly. Any such cancellation shall reduce each
Lender's Available Commitment or Commitment under the Term
Facilities or the Cash Bridge Facility on a pro rata basis and any
Revolving Lender's Ancillary Limit, if any, shall be reduced
accordingly.
(b) Prior to being entitled to cancel any undrawn Commitments under
the Term Facilities or the Cash Bridge Facility the Parent shall
be required to demonstrate to the satisfaction of the Facility
Agent that it has and will continue to have sufficient working
capital facilities available to the Group.
12.10 MISCELLANEOUS
(a) Any repayment or prepayment under this agreement must be
accompanied by accrued interest on the amount repaid or prepaid
and any other amount then due under this agreement.
(b) No amount prepaid or cancelled under this clause 12 may be redrawn
or reinstated.
(c) Any notice of prepayment or cancellation given under this
agreement shall be irrevocable and, in the case of notice of
prepayment, the Parent or the Borrower named in that notice shall
be obliged to prepay (or, in the case of the Parent, to procure
prepayment) in accordance with that notice.
(d) No prepayment of a Drawing or cancellation of any Commitment
may be made except in accordance with this agreement or (in
relation to an Ancillary Facility) the relevant Ancillary
Facility Letter.
13. PAYMENTS
13.1 BY LENDERS
(a) On each date on which an Advance is to be made, each Lender shall
make its participation in that Advance available to the Facility
Agent on that date by payment in the currency in which that
Advance is denominated and in immediately available cleared funds
to the account specified by the Facility Agent for that purpose.
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(b) The Facility Agent shall make the amounts paid to it available to
the relevant Borrower on the date of receipt by payment in the
same currency as received by the Facility Agent to the account
specified by that Borrower in the notice requesting that Advance.
If any Lender makes its share of any Advance available to the
Facility Agent later than required by clause 13.1(a), the Facility
Agent shall make that share available to the relevant Borrower as
soon as practicable after receipt.
13.2 BY OBLIGORS
(a) On each date on which any amount is due from any Obligor under the
Senior Finance Documents, that Obligor shall pay that amount on
that date to the Facility Agent in immediately available cleared
funds to the account specified by the Facility Agent for that
purpose.
(b) Each payment under this agreement from an Obligor is to be made in
Sterling, except that:
(i) each repayment or prepayment of an Advance shall be in the
currency in which it was drawn;
(ii) each payment of interest shall be in same currency as the
amount in relation to which that interest is payable;
(iii) each payment in respect of losses shall be made in the
currency in which the losses were incurred;
(iv) each payment under clause 14.1 (Gross up) or clause 15.1
(Increased costs) shall be made in the currency specified
by the claiming Finance Party; and
(v) any amount expressed to be payable in a currency other than
Sterling shall be paid in that other currency.
(c) The Facility Agent shall, on the date of receipt, pay to the
Finance Party to which the relevant amount is due its pro rata
share (if any) of any amounts so paid to the Facility Agent in the
same currency as received by the Facility Agent to the account
specified by that party to the Facility Agent. If any amount is
paid to the Facility Agent later than required by clause 13.2(a),
the Facility Agent shall make that party's share available to it
as soon as practicable receipt.
13.3 NETTING OF PAYMENTS
If on any Drawdown Date:
(a) the Revolving Lenders are required to make a Revolving Advance;
and
(b) a payment is due to be made by an Obligor to the Facility Agent
for the account of the Revolving Lenders,
the Facility Agent may, without prejudice to the obligation of the
relevant Obligor to make that payment, apply any amount payable by
the Revolving Lenders to that Obligor on that Drawdown Date in
relation to the relevant Revolving Advance in or towards
satisfaction of the amounts payable by that Obligor to the
Revolving Lenders on that Drawdown Date.
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13.4 ASSUMED RECEIPT
Where an amount is to be paid under any Senior Finance Document for the
account of another person, the Facility Agent will not be obliged to pay
that amount to that person until it is satisfied that it has actually
received that amount. If the Facility Agent nonetheless pays that amount
to that person and the Facility Agent had not in fact received that
amount, then that person will on request refund that amount to the
Facility Agent. That person will be liable:
(a) to pay to the Facility Agent on demand interest on that amount at
the rate determined by the Facility Agent to be equal to the cost
to the Facility Agent of funding that amount for the period from
payment by the Facility Agent until refund to the Facility Agent
of that amount; and
(b) to indemnify the Facility Agent on demand against any additional
loss it may have incurred by reason of it having paid that amount
before having received it.
13.5 NO SET-OFF OR DEDUCTIONS
All payments made by an Obligor under the Senior Finance Documents must
be paid in full without set-off or counterclaim and not subject to any
condition and free and clear of and without any deduction or withholding
for or on account of any Taxes (except as provided in clause 14 (Taxes)).
13.6 BUSINESS DAYS
Subject to clause 9.3 (Non-Business Days), if any amount would otherwise
become due for payment under any Senior Finance Document on a day which
is not a Business Day, that amount shall become due on the immediately
following Business Day and all amounts payable under any Senior Finance
Document calculated by reference to any period of time shall be
recalculated on the basis of that extension of time.
13.7 CHANGE IN CURRENCY
(a) If more than one currency or currency unit are at the same time
recognised by the central bank of any country as the lawful
currency of that country:
(i) any reference in any Senior Finance Document to, and any
obligations arising under any Senior Finance Document in,
the currency of that country shall be translated into, and
paid in, the currency or currency unit designated by the
Facility Agent (after consultation with the Parent and the
Lenders); and
(ii) any translation from one currency or currency unit to
another shall be at the official rate of exchange
recognised by the central bank of that country for the
conversion of that currency or currency unit into the
other, rounded up or down by the Facility Agent (acting
reasonably).
(b) If a change in any currency of a country occurs, the Senior
Finance Documents will, to the extent the Facility Agent specifies
is necessary, be amended to comply with any generally accepted
conventions and market practice in any relevant interbank market
and otherwise to reflect the change in currency. The Facility
Agent will notify the other parties to the relevant
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Senior Finance Documents of any such amendment, which shall be binding on
all the parties to that Senior Finance Document.
13.8 APPLICATION OF MONEYS
If any amount paid or recovered in relation to the liabilities of an
Obligor under any Senior Finance Document is less than the amount then
due, the Facility Agent shall apply that amount against amounts
outstanding under the Senior Finance Documents in the following order:
(a) first, to any unpaid fees and reimbursement of unpaid expenses of
the Agents;
(b) second, to any unpaid fees and reimbursement of unpaid expenses of
the Lenders;
(c) third, to unpaid interest;
(d) fourth, to unpaid principal (including provision of cash cover in
relation to Contingent Liabilities not already cash
collateralised); and
(e) fifth, to other amounts due under the Senior Finance Documents
(other than the Hedging Agreements)
in each case (other than (a)), pro rata to the outstanding amounts
owing to the relevant Finance Parties (other than the Hedging
Lenders) under the Senior Finance Documents taking into account
any applications under this clause 13.8. Any such application by
the Facility Agent will override any appropriation made by an
Obligor.
14. TAXES
14.1 GROSS UP
If any deduction or withholding for or on account of Taxes or any other
deduction from any payment made or to be made by an Obligor to any
Finance Party or by the Facility Agent to any other Finance Party under
any Senior Finance Document is required by law, then that Obligor will:
(a) ensure that the deduction or withholding does not exceed the
minimum amount legally required;
(b) pay to the relevant Taxation or other authorities within the
period for payment permitted by the applicable law, the amount
which is required to be paid in consequence of the deduction
(including the full amount of any deduction from any additional
amount paid under this clause 14.1);
(c) promptly pay to the relevant Finance Party an additional amount
equal to the amount required to procure that the aggregate net
amount received by that Finance Party will equal the full amount
which would have been received by it if no such deduction or
withholding had been made; and
(d) indemnify each Finance Party against any losses incurred by it by
reason of:
(i) any failure by the relevant Obligor to make any deduction
or withholding; or
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(ii) any such additional amount not being paid on the due date
for payment of that amount.
14.2 EXEMPTIONS FROM GROSS-UP
No additional amount will be payable to a Finance Party under clause 14.1
(Gross up) to the extent that the relevant deduction or withholding would
not have arisen if that Finance Party had been a Qualifying Lender at the
time the relevant payment fell due (unless the reason it is not a
Qualifying Lender is the introduction of, or a change in, any law or
regulation, or a change in the interpretation or application of any law
or regulation or in any practice or concession of the Inland Revenue, in
each case occurring after the date of this agreement).
14.3 INDEMNITY
Without prejudice to clause 14.1 (Gross up), if, as a result of a change
in Tax law or regulation (or an equivalent change having mandatory
effect) occurring after the date of this agreement any Finance Party (or
any person on its behalf) is required to make any payment in relation to
Tax (other than Tax on its overall net income) on or calculated by
reference to the amount of any payment received or receivable by that
Finance Party (or any person on its behalf) under any Senior Finance
Document (including under clause 14.1 (Gross up)) or any liability in
relation to any such payment is assessed, levied, imposed or claimed
against any Finance Party (or any person on its behalf), the Parent
shall, on demand by the Facility Agent, forthwith indemnify that Finance
Party (or relevant other person) against that payment or liability and
any losses incurred in connection with that payment or liability.
14.4 FILINGS
(a) If an Obligor is required (or would in the absence of any
appropriate filing be required) to make a deduction or withholding
for or on account of Taxes or any other deduction contemplated by
this clause 14, that Obligor and each relevant Finance Party shall
promptly file all forms and documents which the appropriate Tax
authority may reasonably require in order to enable that Obligor
to make relevant payments under the Senior Finance Documents
without having to make that deduction or withholding.
(b) Each Finance Party which is a Qualifying Lender by reason of
paragraph (b) of the definition of "Qualifying Lender" in clause
1.1 (Definitions) shall, as soon as reasonably practicable after
request from the Parent, file with any relevant Tax authority, or
provide to the Parent, any Tax form, declaration or other document
which the Parent has reasonably requested from that Finance Party
for the purpose of enabling payments to be made by the relevant
Obligor to that Finance Party under the Senior Finance Documents
without deduction or withholding.
14.5 TAX CREDITS
If an Obligor pays an additional amount under clause 14.1 (Gross up) and
a Lender, in its sole opinion, receives an off-setting Tax credit or
other similar Tax benefit arising out of that payment, that Lender shall
reimburse to the relevant Obligor the amount which that Lender
determines, in its sole opinion, is attributable to the relevant
deduction, withholding or payment and will leave it in no better or worse
position in relation to its worldwide Tax liabilities than it would have
been in if the payment of that additional amount had not been required,
to the extent that that Lender, in its sole opinion, can do so without
prejudice to the retention of the amount of that credit or benefit and
without any other adverse Tax consequences for it. Any such reimbursement
shall be conclusive evidence of the amount due to that Obligor and shall
be accepted by that Obligor in full and final settlement of any claim for
reimbursement under this clause 14.5.
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14.6 TAX CREDIT RECOVERY
If, following any reimbursement by a Lender under clause 14.5 (Tax
credits), that Lender is required to relinquish or surrender any credit
or benefit or suffers an adverse Tax consequence as a result of that
reimbursement and that relinquishment, surrender or that adverse Tax
consequence was not (or was not fully) taken into account in determining
that reimbursement, the relevant Obligor shall, on demand, return to that
Lender the proportion of the reimbursement which will compensate the
Lender for that relinquishment, surrender or adverse Tax consequence.
14.7 AMENDMENTS TO S349 ICTA 1988
If section 349 of the Income and Corporation Taxes ▇▇▇ ▇▇▇▇ is, amended
or repealed, after the date of this agreement, the Facility Agent may,
after consultation with the Parent and the Lenders, by notice to the
Parent and the Lenders amend or replace paragraph (a) of the definition
of "Qualifying Lender" in clause 1.1 (Definitions) in such a way and to
such extent as it reasonably determines will have the same or equivalent
effect as the existing paragraph (a) having regard to the contexts in
which the expression "Qualifying Lender" is used in this agreement. The
right of the Facility Agent under this clause 14.7 shall extend also to
any amended or replacement definition for the time being in force as a
result of the application of this clause 14.7. If the definition of
"Qualifying Lender" is amended or replaced under this clause 14.7, such
changes shall take effect to the such changes from the date specified by
the Facility Agent.
14.8 TAX AFFAIRS
Nothing in this clause 14 shall oblige any Lender to disclose any
information to any person regarding its Tax affairs or Tax computations
or interfere with the right of any Lender to arrange its Tax affairs in
whatever manner it thinks fit.
15. CHANGE IN CIRCUMSTANCES
15.1 INCREASED COSTS
(a) If the effect of the introduction of, or a change in, or a change
in the interpretation or application of, any law or regulation
(including any law or regulation relating to Taxation, reserve
asset, special deposit, cash ratio, liquidity or capital adequacy
requirements or any other form of banking or monetary controls)
applicable to any Lender (an "AFFECTED LENDER") occurring after
the date of this agreement or compliance by any Lender with any
such law or regulation is to:
(i) impose an additional cost on the Affected Lender as a
result of it having entered into any Senior Finance
Document or making or maintaining its participation in any
Advance or of it performing its obligations under any
Senior Finance Document;
(ii) reduce any amount payable to the Affected Lender under any
Senior Finance Document or reduce the effective return on
its capital or any class of its capital; or
(iii) result in the Affected Lender making any payment or
forgoing any interest or other return on or calculated by
reference to any amount received or receivable by the
Affected Lender from any other party under any Senior
Finance Document,
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(each such increased cost, reduction, payment, forgone
interest or other return being referred to in this
clause 15.1 as an "INCREASED COST"), then:
(A) the Affected Lender will notify the Parent and the
Facility Agent of that event as soon as reasonably
practicable after becoming aware of it; and
(B) on demand from time to time by the Affected Lender,
the Parent will pay to the Affected Lender the
amount which the Affected Lender determines is
necessary to compensate the Affected Lender for that
increased cost (or the portion of that increased
cost which is, in the opinion of the Affected
Lender, attributable to it entering into the Senior
Finance Documents, making or maintaining its
participation in any Drawing, or maintaining its
Commitment).
(b) The certificate of an Affected Lender specifying the amount of
compensation payable under clause 15.1(a) and the basis for the
calculation of that amount is, in the absence of manifest error,
conclusive.
(c) The Parent will not be obliged to compensate any Affected Lender
under clause 15.1(a) in relation to any increased cost:
(i) compensated for by payment of the Mandatory Cost or by
clause 14 (Taxes); or
(ii) attributable to a change in Tax on the overall net income
of the Affected Lender.
(d) If any Holding Company of a Lender suffers a cost which would have
been recoverable by that Lender under this clause 15.1 if that
cost had been imposed on that Lender, that Lender shall be
entitled to recover the amount of that cost under this clause 15.1
on behalf of the relevant Holding Company.
15.2 ILLEGALITY
If it is or becomes contrary to any law or regulation for any Lender to
make any of the Facilities available or to maintain its participation in
any Advance or any of its Commitments, then that Lender may give notice
to that effect to the Facility Agent and the Parent, whereupon:
(a) the relevant Borrowers will in good time before the latest date
permitted by the relevant law or regulation prepay that Lender's
participation in all Advances then outstanding, together with all
interest accrued on those Advances, provide cash cover in an
amount equal to that Lender's Contingent Liability in relation to
each Bank Guarantee (to the extent not already cash
collateralised) and pay all other amounts due to that Lender under
the Senior Finance Documents (including under clause 29.1 (General
indemnity and breakage costs)); and
(b) that Lender's undrawn Commitments (if any) will immediately be
cancelled and that Lender will have no further obligation to make
the Facilities available.
15.3 MITIGATION
If circumstances arise in relation to a Lender which would or may result
in:
(a) any Advance in which it participates becoming an Affected Advance
under clause 10 (Market Disruption); or
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(b) an obligation to pay an additional amount to it under clause 14.1
(Gross up) or clause 14.3 (Indemnity); or
(c) a demand for compensation by it under clause 15.1 (Increased
Costs); or
(d) an obligation to prepay any amount to it under clause 15.2
(Illegality), then, without in any way limiting, reducing or
otherwise qualifying the obligations of the Obligors under the
clauses referred to above, that Lender will notify the Facility
Agent and the Parent as soon as reasonably practicable after
becoming aware of those circumstances and, in consultation with
the Facility Agent and the Parent, take such reasonable steps as
may be open to it to mitigate the effects of those circumstances,
including:
(i) changing its Lending Office for the purposes of this
agreement; or
(ii) transferring its rights and obligations under this
agreement in accordance with clause 27 (Changes to
parties), but the Lender concerned will not be obliged to
take any action if to do so might have a material adverse
effect on its business, operations or financial condition
or cause it to incur liabilities or obligations (including
Taxation) which (in its opinion) are material or would
reduce its return in relation to its participation in the
Facilities.
15.4 ISSUING LENDER
References in clause 14 (Taxes) and this clause 15 to a "Lender" or
"Lenders" include a Lender in its capacity as an Issuing Lender.
16. FEES, EXPENSES AND STAMP DUTIES
16.1 ARRANGEMENT FEE
The Parent will pay to the Arranger the arrangement fee in accordance
with the terms of the Arranger's Fees Letter.
16.2 AGENCY FEE
The Parent will pay to the Facility Agent for its own account an annual
agency fee in accordance with the terms of the Agency Fees Letter.
16.3 COMMITMENT FEE
The Parent will pay to the Facility Agent for the account of the Lenders
a commitment fee which shall accrue from (and including) the date of this
agreement which will:
(a) be calculated at the rate of 0.75 per cent. per annum on the
aggregate of the daily Total Available Commitments and the daily
undrawn Term Commitments and Cash Bridge Commitments; and
(b) be payable on the Completion Date, thereafter quarterly in arrear
and on the last day of the relevant Availability Period for the
Term Facilities and the Cash Bridge Facility (or, if earlier,
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the date on which the relevant Facility is fully drawn down) and
in the case of the Revolving Facility quarterly in arrear and on
the Revolving Facility Repayment Date;
and such fee shall be conditional on the occurrence of the Unconditional
Date.
16.4 BANK GUARANTEE COMMISSION
Each Borrower for whose account a Bank Guarantee is issued shall pay to
the Facility Agent a commission at a rate equal to the Margin applicable
to the Revolving Facility from time to time on that Lender's Contingent
Liability from day to day in relation to that Bank Guarantee. The
commission shall be payable quarterly in arrear from the date of this
agreement for so long as that Lender has any such Contingent Liability
and on the date on which it ceases to have any such Contingent Liability.
16.5 BANK GUARANTEE FEES
Each Borrower for whose account a Bank Guarantee is issued shall pay to
the relevant Issuing Lender which issued such Bank Guarantee a fee equal
to 1.00 per cent. per annum on the Contingent Liability of that Issuing
Lender from day to day in relation to that Bank Guarantee. Such fee being
payable in arrear from the date of this agreement for so long as the
relevant Issuing Lender has any such Contingent Liability and on the date
on which it ceases to have any such Contingent Liability.
16.6 VAT
All fees payable under the Senior Finance Documents are exclusive of any
value added tax or other similar tax chargeable on or in connection with
those fees. If any such value added tax or other similar tax is or
becomes chargeable, that tax will be added to the relevant fee at the
appropriate rate and will be paid by the relevant Obligor at the same
time as the relevant fee itself is paid.
16.7 INITIAL EXPENSES
The Parent will on demand pay to the Agents and the Arranger the amount
of all costs and expenses (including legal fees and other out-of-pocket
expenses and any value added tax or other similar tax thereon) reasonably
incurred by either Agent or the Arranger in connection with:
(a) the negotiation, preparation, execution and completion of the
Senior Finance Documents, and all documents, matters and things
referred to in, or incidental to, any Senior Finance Document,
including, without limitation, the operation of clause 18 (Changes
to Obligors and Security);
(b) any amendment, consent or suspension of rights (or any proposal
for any of the same) relating to any Senior Finance Document (and
documents, matters or things referred to in any Senior Finance
Document);
(c) the investigation of any Default; and
(d) primary syndication (including the costs of preparing the
Syndication Memorandum and all matters incidental to primary
syndication).
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16.8 ENFORCEMENT EXPENSES
The Parent will on demand pay to each Finance Party the amount of all
costs and expenses (including legal fees and other out of pocket expenses
and any value added tax or other similar tax thereon) incurred by that
Finance Party in connection with the preservation, enforcement or
attempted preservation or enforcement of any of that Finance Party's
rights under any Senior Finance Document (and any documents referred to
in any Senior Finance Document).
16.9 STAMP DUTIES, ETC.
The Parent will on demand indemnify each Finance Party from and against
any liability for any stamp, documentary, filing and other duties and
Taxes (if any) which are or may become payable in connection with any
Senior Finance Document.
16.10 PREPAYMENT FEES
(a) If any Borrower prepays all or any part of the Term A Facility or
the Term B Facility prior to the second anniversary of the date of
this agreement as a result of a refinancing of the Term A Facility
and/or the Term B Facility, a prepayment fee of 1.00 per cent. of
the amount prepaid shall be paid by such Borrower to the Facility
Agent for the account of the Lenders at the time of such
prepayment.
(b) If any Borrower prepays all or any part of the Term A Facility or
the Term B Facility prior to the first anniversary of the date of
this agreement as a result of a Sale, Listing or Change of
Control, a prepayment fee of 1.00 per cent. of the amount prepaid
shall be paid by such Borrower to the Facility Agent for the
account of the Lenders at the time of such prepayment.
(c) If any Borrower prepays all or any part of the Term C Facility
prior to the third anniversary of the date of this agreement, a
prepayment fee of the percentage set out in column (2) of the
table below of the amount to be prepaid corresponding to the time
of such prepayment set out in column (1) of the table below shall
be paid by such Borrower to the Facility Agent for the account of
the Lenders at the time of such prepayment.
PERIOD FROM DATE OF THIS AGREEMENT PREPAYMENT FEE
(%)
On or before 1 year 3.00
On or before 2 years 2.00
On or before 3 years 1.00
(d) For the avoidance of doubt no prepayment fee will be payable as a
result of a prepayment in accordance with clause 12.6 (Excess
Cashflow) or clause 20.3(a)(viii).
16.11 CALCULATION
All fees under this agreement which accrue and are payable in arrear will
accrue on a daily basis and will be calculated by reference to a 365 day
year and the actual number of days elapsed (or on any other basis
required by market practice).
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17. GUARANTEE AND INDEMNITY
17.1 GUARANTEE
Each Guarantor irrevocably and unconditionally and jointly and severally:
(a) guarantees to each Finance Party punctual performance by each
Obligor of all that Obligor's obligations under the Senior Finance
Documents including without limitation the payment in full of all
amounts that would become due but for the operation of the
automatic stay under section 362(a) of the US Bankruptcy Code.
(b) undertakes with each Finance Party that whenever an Obligor does
not pay any amount when due under or in connection with any Senior
Finance Document, that Guarantor shall immediately on demand pay
that amount as if it was the principal obligor; and
(c) indemnifies each Finance Party immediately on demand against any
cost, loss or liability suffered by that Finance Party if the
guarantee given under clause 17.1(a) or any obligation guaranteed
by it is or becomes unenforceable, invalid or illegal.
17.2 FURTHER GUARANTEE PROVISIONS
(a) The obligations of each Guarantor under clause 17.1 (Guarantee and
indemnity) (the "GUARANTEE OBLIGATIONS"):
(i) will not extend to cover any indebtedness which, if they
did so extend would cause the infringement of section 151
of the Companies Act 1985 (in the case of an Obligor
incorporated in the United Kingdom) or any similar
enactments or provisions in any other jurisdiction (in the
case of an Obligor incorporated outside the United
Kingdom).
(ii) are a continuing security and will extend to the ultimate
balance of all amounts payable by each Obligor under any
Senior Finance Document, regardless of any intermediate
payment or discharge in whole or in part;
(iii) are in addition to and are not in any way prejudiced by any
other security now or subsequently held by any Finance
Party; and
(b) Anything contained in this clause 17 to the contrary
notwithstanding, the obligations of each US Obligor under this
clause 17 shall be limited to a maximum aggregate amount equal
to the greatest amount that would not render such US Obligor's
obligations under this Clause 17 subject to avoidance as a
fraudulent transfer or conveyance under Section 548 of the US
Bankruptcy Code or any applicable provisions of comparable law of
one or more of the states comprising the United States of America
(collectively, the "FRAUDULENT TRANSFER LAWS"), in each case after
giving effect to all other liabilities of such US Obligor,
contingent or otherwise, that are relevant under the Fraudulent
Transfer Laws (specifically excluding, however, any liabilities
of such US Obligor (a) in respect of intercompany indebtedness to
any Group Company to the extent that such indebtedness would be
discharged in an amount equal to the amount paid by such US
Obligor hereunder and (b) under any guarantee of senior unsecured
indebtedness or indebtedness subordinated in right of payment to
obligations of the Obligors outstanding under this Agreement,
which guarantee contains a limitation as to maximum amount similar
to that set forth in this paragraph, pursuant to which the
liability of
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such US Obligor hereunder is included in the liabilities
taken into account in determining such maximum amount) and
after giving effect as assets to the value (as determined
under the applicable provisions of the Fraudulent Transfer
Laws) of any rights to subrogation, contribution,
reimbursement, indemnity or similar right of such US
Obligor pursuant to (i) applicable law or (ii) any
agreement providing for an equitable allocation among such
US Obligor and other affiliates of the Borrowers of
obligations arising under this Clause 17 by such parties.
(c) Each Guarantor hereby irrevocably waives and abandons any and all
right or entitlement which it has or may have under the existing
or future laws of the Island of Jersey and/or the Island of
Guernsey, whether by virtue of the "droit de discussion" or
otherwise, to require that recourse be had to the assets of any of
the Obligors or any other person before any claim is enforced
against that Guarantor in respect of the Guarantee Obligations,
and each Guarantor irrevocably undertakes that if at any time
proceedings are brought against it in respect of the Guarantee
Obligations and no Obligor is also joined in such proceedings, it
will not require that any of the Obligors be joined in or
otherwise made a party to such proceedings, whether the
formalities required by any law of the Island of Jersey and/or the
Island of Guernsey whether existing or future in regard to the
rights or obligations of sureties shall or shall not have been
complied with.
(d) Each Guarantor hereby irrevocably waives and abandons any and all
right or entitlement which it has or may have under the existing
or future laws of the Island of Jersey and/or the Island of
Guernsey, whether by virtue of the "droit de division" or
otherwise, to require that any liability of that Guarantor under
the Guarantee Obligations be divided or apportioned with any other
person or reduced in any manner.
17.3 NO DISCHARGE
The Guarantee Obligations shall not be discharged, diminished or in any
way adversely affected as a result of any of the following (whether or
not known to any Obligor or Finance Party):
(a) any time, consent or waiver given to, or composition made with,
any Obligor or any other person;
(b) any amendment to, or replacement of, any Senior Finance Document
(however fundamental) or any other agreement or security;
(c) the taking, variation, compromise, renewal, release or refusal or
neglect to perfect or enforce any right, remedies or security
against any Obligor or any other person;
(d) any purported obligation of any Obligor or any other person to any
Finance Party (or any security for that obligation) becoming
wholly or partly void, invalid, illegal or unenforceable for any
reason;
(e) any incapacity, lack of power, authority or legal personality or
any change in the constitution of, or any amalgamation or
reconstruction of, any Obligor, Finance Party or other person;
(f) any Obligor or other person becoming insolvent going into
receivership or liquidation, having an administrator appointed or
becoming subject to any other procedure for the suspension of
payments to or protection of creditors or similar proceedings;
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(g) any change in the constitution of any Finance Party or as a result
of the amalgamation or consolidation by a Finance Party with any
other person; or
(h) any other act, omission, circumstance, matter or thing which, but
for this provision, might operate to release, reduce or otherwise
exonerate the relevant Guarantor from any of its obligations under
clause 17.1 (Guarantee).
17.4 DETERMINATION OF GUARANTEE OBLIGATIONS
If, notwithstanding clause 17.2(a) (Further guarantee provisions), the
Guarantee Obligations cease to be continuing obligations:
(a) each Finance Party may continue any account or open one or more
new accounts with any Obligor and the liability of each Guarantor
shall not be reduced or affected in any way by any subsequent
transactions or receipts or payments into or out of any such
account; and
(b) each Guarantor will remain liable in relation to all indebtedness
referred to in clause 17.1(a) (Guarantee) as at the date of
determination (whether demanded or not) and whether or not any
other Obligor is then in default under the Senior Finance
Documents.
17.5 IMMEDIATE RECOURSE
Each Guarantor waives any right it may have of first requiring any
Finance Party (or any trustee or agent on its behalf) to proceed against
or enforce any other rights or security or claim payment from any person
before claiming from that Guarantor under this clause 17. This waiver
applies irrespective of any law or any provision of a Senior Finance
Document to the contrary.
17.6 NO SUBROGATION
Subject to clause 17.7 (Exercise of subrogation), until all amounts which
may be or become payable by any Obligor under or in connection with any
Senior Finance Document have been irrevocably paid in full each Guarantor
undertakes not to exercise any rights which it may have:
(a) to be subrogated to or otherwise share in any security or monies
held, received or receivable by any Finance Party or to claim any
right of contribution in relation to any payment made by any
Guarantor under this agreement;
(b) to enforce any of its rights of subrogation and indemnity against
any Obligor or any co-surety;
(c) following a claim being made on any Guarantor under clause 17.1
(Guarantee and indemnity), to demand or accept repayment of any
monies due from any other Obligor to any Guarantor or claim any
set-off or counterclaim against any other Obligor; or
(d) to claim or prove in a liquidation or other insolvency proceeding
of any Obligor or any co-surety in competition with any Finance
Party; or
(e) provided that in addition to the foregoing, each Guarantor that is
a US Obligor (each a "US GUARANTOR") hereby waives any and all
rights which it may have at any time:
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(i) to be subrogated to or otherwise share in any security or
monies held, received or receivable by any Finance Party or
to claim any right of contribution in relation to any
payment made by such US Guarantor under this agreement; and
(ii) to enforce any of its rights of subrogation or indemnity or
reimbursement against any Obligor or any co-surety in
relation to any payment made by such US Guarantor under
this agreement.
17.7 EXERCISE OF SUBROGATION
Following the making of a demand on any Guarantor under clause 17.1
(Guarantee), that Guarantor will (at its own cost) promptly take such of
the steps or action as are referred to in clause 17.6 (No subrogation) as
the Facility Agent may from time to time stipulate.
17.8 TURNOVER
Each Guarantor shall promptly pay to the Facility Agent an amount equal
to any set-off, proof or counterclaim exercised by it against another
Obligor or any co-surety and shall hold in trust for, and promptly pay or
transfer to, the Facility Agent any payment, distribution or benefit of
security received by it, whether arising as a result of a breach of
clause 17.6 (No subrogation) or compliance with directions given under
clause 17.7 (Exercise of subrogation).
17.9 SUSPENSE ACCOUNTS
Until all amounts which may be or become payable by any Obligor under or
in connection with any Senior Finance Document have been irrevocably paid
in full, any amount received or recovered by any Finance Party from a
Guarantor in relation to any amount due and payable by any Obligor under
any Senior Finance Document may be held by the recipient in a suspense
account. Amounts deposited in any such account shall accrue interest at
the Facility Agent's usual rate for deposits of a similar amount and
nature from time to time and interest accrued shall be credited to that
account.
18. CHANGES TO OBLIGORS AND SECURITY
18.1 ADDITIONAL BORROWERS
A Group Company which is not dormant may become a Borrower after the
Unconditional Date in respect of the Revolving Facility if:
(a) the Parent gives notice to the Facility Agent identifying the
relevant Group Company (attaching certified copies of such Group
Company's most recent audited accounts (unless already provided));
(b) the Majority Lenders (acting reasonably) confirm to the Facility
Agent that they consent to the relevant Group Company becoming a
Borrower;
(c) the relevant Group Company, the Parent (for itself and as agent
for the existing Obligors) and the Facility Agent execute an
Accession Document designating that Group Company as a Borrower
and a Guarantor; and
(d) the Parent delivers to the Facility Agent:
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(i) the original Accession Document executed by the relevant
new Borrower as Borrower and Guarantor and the Parent (for
itself and as agent for the existing Obligors); and
(ii) the documents listed in parts 3 and 4 of Schedule 4, each
in relation to the acceding Borrower,
each satisfactory to the Facility Agent.
18.2 EFFECTIVE TIME
When the conditions set out in clause 18.1 (Additional Borrowers) are
satisfied, the Facility Agent will notify the Parent and the Finance
Parties and the relevant Group Company will become a Borrower with effect
from that notification.
18.3 ADDITIONAL GUARANTORS
(a) The Parent shall procure that any Group Company, which is or
becomes a Material Subsidiary which is not a Guarantor on the date
of this agreement nor required to become a Guarantor pursuant to
clause 20.11(g) (Provision of Jersey Target Security) or clause
20.12(f) (US Target Group Security) shall (unless prohibited by
law) become a Guarantor by executing an Accession Document within
10 Business Days of it so becoming a Material Subsidiary.
(b) When an Accession Document is entered into under clause 18.3(a),
the Parent shall deliver to the Facility Agent:
(i) the original Accession Document executed by the relevant
new Obligor and the Parent (for itself and as agent for the
existing Obligors); and
(ii) the documents listed in parts 3 and 4 of schedule 4, each
in relation to the acceding Guarantor; and
(iii) a legal opinion,
each satisfactory to the Facility Agent.
(c) If it is unlawful for a Group Company to become a Guarantor under
this clause 18.3 or to provide security under clause 18.4 (Further
security), then each Obligor will use all reasonable endeavours to
overcome the prohibition (and, in the case of a financial
assistance or similar prohibition, will procure that the relevant
Group Company will undertake all whitewash or similar procedures
which are possible) to enable the relevant guarantee and/or
security to be given as soon as is reasonably practicable.
(d) The Parent shall procure that at all times the aggregate gross
assets, gross revenues and EBITDA of the Guarantors exceeds 90 per
cent. of each of the gross assets, gross revenues and EBITDA of
the Group, and to the extent necessary shall procure that Group
Companies which are not Material Subsidiaries become Guarantors in
accordance with clauses 18.3(a), (b) and (c) to ensure compliance
with this clause 18.3(d).
18.4 FURTHER SECURITY
(a) The Parent shall procure that:
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(i) any Group Company which becomes a Borrower shall, before
becoming a Borrower; and
(ii) any Material Subsidiary or Guarantor which has not entered
into a Security Document over all or substantially all of
its assets (the "RELEVANT ASSETS"), shall (unless
prohibited by law) within 10 Business Days of it becoming a
Material Subsidiary or upon becoming a Guarantor,
execute a Security Document over the Relevant Assets in favour of
the Security Agent (and in form and substance satisfactory to the
Security Agent) as security for all indebtedness (or such part for
which it is lawful) under the Senior Finance Documents.
(b) When a Security Document is entered into under clause 18.4(a), the
Parent shall deliver to the Facility Agent:
(i) the original Security Document executed by the relevant
Group Company; and
(ii) the documents listed in parts 3 and 4 of schedule 4, each
in relation to the relevant Group Company; and
(iii) a legal opinion,
each satisfactory to the Facility Agent.
18.5 RELEASE OF GUARANTORS
If no Default is continuing and all the shares in a Guarantor which is
not a Borrower are disposed of in accordance with this agreement, the
Facility Agent and the Security Agent shall, on request of the Parent as
soon as reasonably practicable after completion of such disposal, execute
any documents which are necessary to release that Guarantor from all
liabilities under the Senior Finance Documents.
18.6 RELEASE OF SECURITY
If no Default is continuing and a Group Company disposes of any asset
(including shares in any other Group Company which is not a Borrower or
shares in a Group Company which is a Borrower and such Borrower has
repaid all obligations due and owing by it under the Senior Finance
Documents) in accordance with this agreement, the Security Agent shall,
on request of the Parent as soon as reasonably practicable after
completion of that disposal, execute any documents necessary to release
that asset from the security created in favour of the Security Agent by a
Security Document.
19. REPRESENTATIONS AND WARRANTIES
19.1 RELIANCE
Each Obligor represents and warrants as set out in the following
provisions of this clause 19, and Idun Health Care Limited (once it
accedes to this agreement as a Guarantor) and Four Seasons Group Limited
represent and warrant as set out in the provisions of clauses 19.2
(Incorporation) to 19.7(Consents), and acknowledges that each Finance
Party has entered into the Senior Finance Documents and has agreed to
provide the Facilities in full reliance on those representations and
warranties
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19.2 INCORPORATION
It, and each Group Company, is duly incorporated and validly existing
with limited liability under the laws of the place of its incorporation
and has the power to own its assets and carry on its business. To the
extent such Group Company is incorporated under the laws of the United
States of America or any of the states thereof, such Group Company is in
good standing under the laws of its jurisdiction of incorporation.
19.3 POWER AND CAPACITY
It has the power and capacity to enter into and comply with its
obligations under each Transaction Document to which it is party.
19.4 AUTHORISATION
It has taken all necessary action:
(a) to authorise the entry into and the compliance with its
obligations under each Transaction Document to which it is party;
(b) to ensure that its obligations under each Transaction Document are
valid, legally binding and, subject to the Reservations,
enforceable in accordance with their terms;
(c) to make each Transaction Document to which it is party admissible
in evidence in the courts of England; and
(d) to create the security constituted by each Security Document to
which it is party and to ensure that that security has the ranking
specified in that Security Document.
19.5 NO CONTRAVENTION
Its entry into, the exercise of its rights under and the compliance with
its obligations under and each Transaction Document to which it is party
and the carrying out of the transactions contemplated by the Transaction
Documents do not:
(a) contravene any law, regulation, judgment or order to which it is
subject;
(b) conflict with its constitutional documents;
(c) breach any agreement or the terms of any consent binding upon it
or any assets of it; or
(d) oblige it to create any security or result in the creation of any
security over any of its assets other than under the Security
Documents.
19.6 OBLIGATIONS BINDING
The obligations expressed to be assumed by it under each Transaction
Document to which it is a party constitute its valid and legally binding
obligations and, subject to the Reservations, are enforceable in
accordance with their terms.
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19.7 CONSENTS
(a) All consents and approvals required in connection with the Offers
and the US Mergers have been obtained and are in full force and
effect other than those consents and approvals listed in schedule
10 which shall have been obtained and be in full force by the
Unconditional Date or such later date as specified in schedule 10.
(b) All consents and filings required for the conduct of its business
as presently conducted have been obtained and are in full force
and effect except to the extent that the absence of any such
consent or filing does not and is not reasonably likely to have a
Material Adverse Effect.
(c) Each US Obligor and each of its Subsidiaries is qualified to do
business and in good standing in every jurisdiction where its
assets are located and wherever necessary to carry out its
business and operations, except in jurisdictions where the failure
to be so qualified or in good standing has not had and is likely
to not have a Material Adverse Effect.
19.8 NO DEFAULTS
(a) No Default has occurred and is continuing.
(b) No event is continuing which constitutes a default or which with
the giving of notice or the lapse of time or making of any
determination or fulfilment of any condition could reasonably be
expected to constitute a default under any agreement or document
to which any Group Company is party and which default could have a
Material Adverse Effect.
19.9 LITIGATION
No dispute, litigation, arbitration or administrative proceeding is
current or pending or, so far as it is aware, threatened against any
Group Company which is reasonably likely to be adversely determined
against a Group Company and which, if adversely determined, would have a
Material Adverse Effect.
19.10 ENVIRONMENT
Save as disclosed in the Legal Report and the Environmental Report, to
the best of its knowledge and belief (having made all due and careful
enquiries):
(a) Each Group Company is and has at all times been in compliance in
all material respects with all Environmental Laws and all
Environmental Approvals necessary in connection with the ownership
and operation of its business are in full force and effect.
(b) There are no circumstances which could reasonably be expected to
prevent any Group Company from complying with any Environmental
Law.
(c) No material unbudgeted investment is necessary to obtain or renew
any Environmental Approval.
(d) There has been no act or omission by it, and no event or
circumstance has arisen, in each case which has resulted in (or
could reasonably be expected to result in) any third party taking
any legal proceedings against any Group Company under any
Environmental Law or in the revocation, suspension, variation or
non-renewal of any Environmental Approval.
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(e) No Group Company has received any notice of any complaints,
demands, civil claims, liens, enforcement proceedings, requests
for information, or of any action required by any regulatory
authority and there are no investigations pending or, as far as it
is aware, threatened in relation to the failure of any Group
Company to obtain any Environmental Approval or comply with
Environmental Law.
19.11 OWNERSHIP OF ASSETS
(a) The shares in the Jersey Target acquired by Jersey Bidco pursuant
to the Jersey Offer, from the time they are acquired, will be
beneficially owned by Jersey Bidco which will be entitled to and
will forthwith upon registration in the register of members become
the legal and beneficial (and, where applicable, registered) owner
of such shares in the Jersey Target.
(b) The shares in the US Target acquired by US Bidco pursuant to the
US Offer and/or the first US Merger, from the time they are
acquired, will be beneficially owned by US Bidco.
(c) Each Group Company has good title to or a right to use all assets
necessary to conduct its business.
19.12 ACCOUNTS
(a) To the best of the Parent's knowledge and belief, having made all
due and careful enquiries, the Original Audited Accounts and the
Original Management Accounts were prepared in accordance with UK
gaap (or in the case of the US Target Group, US gaap) and save as
disclosed in the Accountant's Report, in the case of:
(i) the Original Audited Accounts, give a true and fair view of
the consolidated financial position as at the date to which
they were prepared and the results of the operations of the
Existing Group, the Excluded Fife Group, the Isle of Man
Group, the Jersey Target Group and of the US Target Group
for the period to which they relate and the state of the
affairs of the Existing Group, the Excluded Fife Group, the
Isle of Man Group, the Jersey Target Group and the US
Target Group at the end of such period and, in particular,
disclose or reserve against all liabilities (actual or
contingent) to the extent required by UK gaap (or, in the
case of the US Target Group, US gaap); and
(ii) the Original Management Accounts, show with reasonable
accuracy, the consolidated financial position as at the
date to which they were prepared and the results of the
operations of the Existing Group, the Excluded Fife Group,
the Isle of Man Group, the Jersey Target Group and the US
Target Group for the period to which they relate and the
state of the affairs of the Existing Group, the Excluded
Fife Group, the Isle of Man Group, the Jersey Target Group
and the US Target Group at the end of such period, and, in
particular, disclose or reserve against all liabilities
actual or contingent to the extent required by UK gaap (or,
in the case of the US Target Group, US gaap).
(b) The Annual Accounts and the Quarterly Accounts in each case most
recently delivered under this agreement were prepared in
accordance with UK gaap and in the case of:
(i) the relevant Annual Accounts, give a true and fair view of
the consolidated financial position as at the date to which
they were prepared and the results of the operations of the
Group and the Excluded Companies for the period to which
they relate and the state of affairs of the Group at the
end of such period and, in particular, disclose or
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reserve against all liabilities (actual or contingent) to
the extent required by UK gaap; and
(ii) the relevant Quarterly Accounts, show with reasonable
accuracy the consolidated position as at the date to which
they were prepared and the results of the operations of the
Group and the Excluded Companies at the end of such period
and, in particular, disclose or reserve against all
liabilities (actual or contingent) to the extent required
by UK gaap.
19.13 APPROVED PROJECTIONS, BUSINESS PLAN AND INTEGRATION PLAN
(a) All statements of fact recorded in the Approved Projections,
Business Plan and Integration Plan are true and accurate in all
material respects to the best of the Parent's knowledge and belief
(having made all due and careful enquiries);
(b) the Approved Projections, Business Plan and Integration Plan were
prepared honestly and were arrived at after careful consideration
by the directors of the Parent and the Key Executive and, to the
best of the Parent's knowledge and belief (having made all due and
careful enquiries), are based on reasonable grounds;
(c) the projections and forecasts contained in the Approved
Projections, Business Plan and Integration Plan are based upon
assumptions (including assumptions as to the future performance of
the Target Groups, inflation, price increases, interest rates and
efficiency gains) which have been carefully considered by the
directors of the Parent and the Key Executive and are considered
by them to be fair and reasonable to the best of their knowledge
and belief (having made all due and careful enquiries);
(d) to the best of the Parent's knowledge and belief (having made all
due and careful enquiries), the Approved Projections, Business
Plan and Integration Plan are not misleading in any material
respect and do not omit to disclose any matter where failure to
disclose such matter would result in the Approved Projections,
Business Plan and Integration Plan (or any information contained
therein) being misleading in any material respect;
(e) nothing has occurred or come to the attention of the Parent since
the date as at which the Approved Projections, Business Plan and
Integration Plan were prepared which renders the Approved
Projections, Business Plan and Integration Plan inaccurate or
misleading or which makes any of the projections or forecasts
contained in the Approved Projections, Business Plan and
Integration Plan unfair or unreasonable or renders any of the
assumptions on which the projections are based unfair or
unreasonable.
19.14 REPORTS AND KPMG STRUCTURE PAPER
(a) All information supplied by or on behalf of any Group Company (or
to the best of the Parent's knowledge and belief, having read the
Property Valuation and having made all due and careful enquiry by
or on behalf of any member of the Target Groups in respect of the
Accountants Report, the Legal Report, the Insurance Brokers'
Letters, the Environmental Report and the KPMG Structure Paper) in
connection with the preparation of the Reports and the KPMG
Structure Paper was true, complete and accurate in all material
respects at the dates supplied.
(b) To the best of the Parent's knowledge and belief, having read the
Property Valuation and having made all due and careful enquiry in
respect of the Accountants Report, the Legal
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Report, the Insurance Brokers' Letters Environmental Report and
the KPMG Structure Paper, all statements of fact recorded in the
Reports and the KPMG Structure Paper are true and accurate in all
material respects.
(c) To the best of the Parent's knowledge and belief, having read the
Property Valuation and having made all due and careful enquiry in
respect of the Accountants Report, the Legal Report, the Insurance
Brokers' Letters Environmental Report and the KPMG Structure
Paper, neither the Reports nor the KPMG Structure Paper are
misleading in any material respect and there is no expression of
opinion, forecast or projection contained in, or any conclusion
reached in any of the Reports or the KPMG Structure Paper which is
not fair and reasonable.
(d) To the best of the Parent's knowledge and belief, having read the
Property Valuation and having made all due and careful enquiry in
respect of the Accountants Report, the Legal Report, the Insurance
Brokers' Letters Environmental Report and the KPMG Structure
Paper, nothing has occurred or come to light since the date of any
Report or the KPMG Structure Paper which renders any material
facts contained in that Report or the KPMG Structure Paper
inaccurate or misleading or which makes any of the opinions,
projections, forecasts or conclusions contained in the relevant
Report or the KPMG Structure Paper unfair or unreasonable.
19.15 TRANSACTION DOCUMENTS
(a) If the Jersey Code Offer is made, the Jersey Code Offer Document
as furnished to the Facility Agent under this agreement will
contain all the material terms of the Jersey Offer and if the
Jersey Non Code Offer is made the Jersey Non Code Offer Document
as furnished to the Facility Agent under this agreement will
contain all the material terms of the Jersey Non Code Offer.
(b) The US Offer Document as furnished to the Facility Agent under
this agreement will contain all the material terms of the US
Offer. The Merger Agreement as furnished to the Facility Agent
under this agreement will contain all material terms of the First
US Merger.
(c) The Equity Documents and the Crestacare Loan Notes as provided to
the Facility Agent under this agreement contain all the material
terms of the agreements and arrangements between any Group
Company, the Original Equity Investors, the Third Party Investors
and the Crestacare Loan Note Holders.
19.16 INFORMATION PACK
To the best of the Parent's knowledge and belief, having made all due and
careful enquiries all information recorded in the Information Pack is
accurate in all material respects and each of the companies identified in
the Information Pack as being dormant is a Dormant Company.
19.17 MATERIAL ADVERSE CHANGE
To the best of its knowledge and belief (having made all due and careful
enquiries) there has been no material adverse change in the business,
assets or financial condition of either the Jersey Target Group or the US
Target Group since the date to which the Original Audited Accounts were
prepared other than as disclosed in the Reports or the Disclosure Letter.
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19.18 MATERIAL DISCLOSURES
It has fully disclosed in writing to the Facility Agent all facts known
to it relating to the Offers and the Target Groups which it knows could
reasonably be expected to influence the decision of the Lenders to make
the Facilities available.
19.19 NEWLY INCORPORATED COMPANIES AND DORMANT COMPANIES
(a) Each of UK Holdco, US LLC, US Bidco, Jersey Holdco and Jersey
Bidco is a holding company and it has not carried on any business
or incurred any liabilities other than in connection with the
Transaction Documents and in relation to payment of legal fees,
auditors fees and expenses.
(b) None of the Dormant Companies are trading.
19.20 OFFER DOCUMENTS
(a) So far as the Parent and Jersey Bidco are aware the Jersey Code
Offer Document or the Jersey Non Code Offer Document, as the case
may be, do not contain any untrue statement by Jersey Bidco or
omit any information which makes any statement for which Jersey
Bidco or its directors are responsible misleading and expressions
of expectation, intention, belief and opinion contained therein
were honestly made on reasonable grounds after due and careful
consideration by Jersey Bidco and its directors.
(b) The US Offer Document and the US Proxy Materials, if applicable,
in each case do not contain and will not contain any untrue
statement of a material fact necessary to make the statements
therein not misleading provided however that the Parent and US
Bidco make no representation and warranty with respect to any
information supplied or to be supplied by US Target or its
Subsidiaries or any of their respective representatives in the
foregoing documents.
(c) The representations and warranties of the Parent and US Bidco in
each case contained in the Merger Agreement (including all
exhibits, schedules and disclosure letters referred to therein or
delivered thereto, if any) are true and correct in all material
respects.
19.21 INTELLECTUAL PROPERTY
(a) The Material Intellectual Property required for each Group Company
to conduct its business as presently conducted:
(i) is legally and beneficially owned by it or licensed to a
Group Company (and where registered or the subject of an
application it is the registered proprietor) free from any
licences or obligation to assign to third parties and
Security Interests which are materially prejudicial to the
use of that Material Intellectual Property and will not be
adversely affected by the transactions contemplated by the
Transaction Documents; and
(ii) has not lapsed or been cancelled and all steps have been
taken to protect and maintain that Material Intellectual
Property, including paying renewal fees.
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(b) Where the Material Intellectual Property required for each Group
Company to conduct its business as presently conducted is subject
to any right, permission to use or licence granted to or by any
Group Company, that agreement has not been breached in any
material respect or terminated by any party.
(c) So far as it is aware, after due and careful review and enquiry,
no Group Company is infringing any Intellectual Property Rights of
any third party and the Material Intellectual Property is not
being infringed by any third party.
19.22 PENSIONS
(a) The Employee Benefit Arrangements (excluding any Employee Benefit
Arrangements that are maintained in the USA) are either:
(i) in the case of funded Employee Benefit Arrangements;
(A) where those arrangements are required by law to be
funded, funded to the extent required by law based
on generally accepted actuarial practices applicable
in the relevant jurisdiction in which the relevant
Employee Benefit Arrangements are maintained; or
(B) (to the extent not so funded) insured with an
insurance company of good repute; or
(ii) in the case of unfunded Employee Benefit Arrangements
(including those arrangements referred to in (A) and (B)
above under which some but not all benefits are funded or
insured) the liabilities under them are fully provided for:
(A) either by insurance with an insurance company of
good repute; or
(B) (to the extent not so insured) provided for in
accordance with Approved Accounting Principles.
where failure to fund, insure or provide for the
liabilities arising under such arrangements would
lead to a Material Adverse Effect. There are no
circumstances which may give rise to a liability in
relation to the Employee Benefits Arrangements which
would lead to a Material Adverse Effect.
(b) Each Group Company is in material compliance with all applicable
laws, trust documentation and contracts relating to the Employee
Benefit Arrangements (if any) operated by it, except to the extent
that the failure to comply therewith does not have a Material
Adverse Effect.
19.23 ERISA
(a) No Group Company has any Unfunded Liabilities except to the extent
that such Unfunded Liabilities would not have a Material Adverse
Effect.
(b) Each Plan complies in all material respects with the applicable
requirements of ERISA and the IR Code, except to the extent that
the failure to comply therewith does not have a Material Adverse
Effect.
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(c) No Reportable Event has occurred with respect to any Plan, except
to the extent that such Reportable Event does not have a Material
Adverse Effect.
(d) No Group Company nor any ERISA Affiliate has incurred, or is
reasonably expected to incur, any liability pursuant to Title I or
IV of ERISA or the penalty or excise tax provisions of the IR Code
relating to employee benefit plans (as defined in section 3 of
ERISA), and no event, transaction or condition has occurred or
exists that could reasonably be expected to result in the
incurrence of any such liability by a Group Company or any ERISA
Affiliate, or in the imposition of any lien on any of the rights,
properties or assets of a Group Company, in either case pursuant
to Title I or IV of ERISA or to such penalty or excise tax
provisions of the IR Code or to Section 401(a)(29) or 412 of the
IR Code which would have a Material Adverse Effect.
(e) No Group Company:
(i) is a party to any Multiemployer Plan; or
(ii) has withdrawn from any Multiemployer Plan, except to the
extent such actions do not have a Material Adverse Effect.
(f) The execution and delivery of this Agreement and the consummation
of the transactions contemplated hereunder will not involve any
transaction that is subject to the prohibitions of section 406 of
ERISA or in connection with which taxes could be imposed pursuant
to section 4975(c)(1)(A)-(D) of the IR Code.
(g) Neither a Group Company nor any ERISA Affiliate has any contingent
liability with respect to any post-retirement benefit under a
Welfare Plan, other than liability for continuation coverage
described in Part 6 of Title I of ERISA and except where such
liability would not result in a Material Adverse Effect.
19.24 SOLVENCY
On and immediately after consummation of the US Offer and each of the US
Mergers each of the Obligors (after giving effect to the US Offer and
each of the US Mergers and the other transactions contemplated thereby)
will be Solvent. As used in this clause, "Solvent" means, with respect to
a particular date and Obligor, that on such date (i) the present fair
market value (or present fair saleable value) of the assets of such
Obligor is not less than the total amount required to pay the probable
liabilities of such Obligor on its total existing debts and liabilities
(including contingent liabilities) as they become absolute and matured,
(ii) such Obligor is able to realise upon its assets and pay its debts
and other liabilities, contingent obligations and commitments as they
mature and become due in the normal course of business, (iii) assuming
the incurrence of the Loans as contemplated by this Agreement, such
Obligor is not incurring debts or liabilities beyond its ability to pay
as such debts and liabilities mature and (iv) such Obligor is not engaged
in any business or transaction, and is not about to engage in any
business or transaction, for which its property would constitute
unreasonably small capital after giving due consideration to the
prevailing practice in the industry in which such Obligor is engaged. In
computing the amount of such contingent liabilities at any time, it is
intended that such liabilities will be computed at the amount that, in
the light of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an actual
or matured liability.
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19.25 INVESTMENT COMPANIES AND SIMILAR
No US Obligor is (1) a "holding company" or a "subsidiary company" of a
"holding company" within the meaning of the Public Utility Holding
Company Act of 1935, as amended; (2) an "investment company" or a company
"controlled" by a person required to be registered as an "investment
company", within the meaning of the Investment Company Act of 1940, as
amended; or (3) subject to regulation under any United States federal or
state statute or regulation (other than Regulations X of the Board of
Governors of the Federal Reserve System of the USA) limiting its ability
to incur indebtedness. No part of the proceeds of any Loan will be used
for any purpose which violates the provisions of Regulation T, U or X of
the Board of Governors of the Federal Reserve System.
19.26 SECURITISATIONS
So far as it is aware, having made all due and careful enquiries as at
the date of the KPMG Securitisation Paper, no member of the Group had any
rights, obligations or liabilities in respect of the Securitisations or
the Securitisation Group other than as set out in the KPMG Securitisation
Paper, the Accountants Report, the Legal Reports, the Information Pack
and Securitisation Documents.
19.27 SYNDICATION MEMORANDUM
(a) Any factual information provided by any member of the Group for
the purposes of the Syndication Memorandum was true and accurate
in all material respects as at the date it was provided or as at
the date (if any) at which it is stated.
(b) The financial projections contained in the Syndication Memorandum
have been prepared on the basis of recent historical information
and on the basis of reasonable assumptions.
(c) Nothing has occurred since the date of the Syndication Memorandum
or been omitted from the Syndication Memorandum and no information
has been given or withheld by any member of the Group to any
Finance Party that results in the information contained in the
Syndication Memorandum being untrue or misleading in any material
respect.
19.28 REPETITION
The representations and warranties in this clause 19 are made on the date
of this agreement and shall be deemed repeated on the date of each
Drawdown Request, on each Drawdown Date and on the first day of each
Interest Period, in each case by reference to the facts and circumstances
existing on that date, except that:
(a) the representations and warranties set out in clauses 19.8(a) (No
Defaults), 19.9 (Litigation), 19.13 (Approved Projections and
Business Plan), 19.14 (Reports), 19.16 (Information Pack) 19.17
(Material adverse change), 19.18 (Material disclosures), 19.19
(Newly incorporated Companies), 19.20(a) (Offer Documents) and
19.22 (Pensions) shall not be repeated after the date of the first
Drawdown; and
(b) the representation and warranty set out in clause 19.27
(Syndication Memorandum) shall only be made on the date the
Syndication Memorandum is approved by the Parent.
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20. UNDERTAKINGS
20.1 DURATION OF UNDERTAKINGS
Each Obligor undertakes to each Finance Party in the terms of this clause
20 from the date of this agreement until all amounts outstanding under
the Senior Finance Documents have been discharged and no Finance Party
has any further Commitment or obligations under the Senior Finance
Documents.
20.2 AUTHORISATIONS AND STATUS UNDERTAKINGS
(a) CONSENTS
Each Obligor will obtain and maintain in full force and effect all
consents and filings required under any applicable law or
regulation:
(i) to enable it to perform its obligations under each
Transaction Document to which it is a party; and
(ii) for the validity, enforceability or admissibility in
evidence of each such Transaction Document.
(b) MAINTENANCE OF STATUS AND AUTHORISATION
Other than in respect of transactions contemplated by the First US
Merger, the Second US Merger and the KPMG Structure Paper, each
Obligor will, and will procure that each Group Company will:
(i) do all things necessary to maintain its corporate
existence;
(ii) obtain and maintain in full force and effect all consents
and filings required for the conduct of its business; and
(iii) comply with all laws and regulations applicable to it.
(c) AMALGAMATIONS
No Obligor will, and each Obligor will procure that no Group
Company will, amalgamate, merge or consolidate with or into any
other person or be the subject of any reconstruction other than
the US Mergers.
(d) CHANGE OF BUSINESS
Other than in respect of transactions contemplated by the First US
Merger and the Second US Merger and the KPMG Structure Paper, no
Obligor will, and each Obligor will procure that no Group Company
will, make a material change to the nature of its business (other
than pursuant to a disposal permitted under clause 20.3(a)
(Disposals)).
(e) CONSTITUTIONAL DOCUMENTS
No Obligor will, and each Obligor will procure that no Group
Company will, agree to any amendment of its constitutional
documents which may adversely affect the interests of any
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Finance Party under the Senior Finance Documents and will supply
the Facility Agent with written details of any proposed change
before the members' resolution approving such change is passed.
(f) HOLDING COMPANY STATUS
The Parent, FSHC Investments, FSHC Holdco, UK Holdco, US LLC,
Jersey Holdco, Jersey Bidco and US Bidco shall not carry on any
business other than the holding of shares in and the provision of
management and/or administrative services to other Group Companies
or acquire any assets other than:-
(i) under the Offer Documents or as contemplated by and
pursuant to the KPMG Structure Paper;
(ii) subject to the terms and conditions of the Intercreditor
Deed, the payment of amounts due under the FSHC Existing
Investor Loan Notes, the FSHC New Investor Loan Notes and
the Alchemy Undertaking Investor Loan Notes by FSHC
Investments;
(iii) the payment of amounts due under the Crestacare Loan Notes
by FSHC Holdco; and
(iv) the giving of a guarantee of the Asset Administration
Agreements by UK Holdco.
(g) PARI PASSU RANKING
Each Obligor shall ensure that the claims of the Finance Parties
under the Senior Finance Documents will at all times rank at least
pari passu in right and priority of payment with the claims of all
its other present and future unsecured and unsubordinated
indebtedness (actual or contingent) except those whose claims are
preferred solely by operation of law.
(h) DORMANT COMPANIES
None of the Dormant Companies will commence trading or acquire any
assets;
20.3 DISPOSALS AND SECURITY UNDERTAKINGS
(a) DISPOSALS
No Obligor will, and each Obligor will procure that no Group
Company will, (whether by a single transaction or a series of
related or unrelated transactions and whether at the same time or
over a period of time) sell, transfer, lease out, de-merge or
otherwise dispose (each a "DISPOSAL") of any of its assets or
agree to do so without the prior written consent of the Majority
Lenders, such consent not be unreasonably withheld or delayed,
other than:
(i) any disposal on arm's length terms in the ordinary course
of trading;
(ii) disposals of redundant or obsolete assets;
(iii) disposals of assets in exchange for other assets which are
comparable or better as to type and quality;
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(iv) disposals from any Obligor to any other Obligor or from any
Group Company which is not an Obligor to any other Group
Company;
(v) disposals of cash not prohibited by this agreement;
(vi) the Australian Disposal;
(vii) any disposal which occurs in connection with the US Mergers
or as contemplated by the KPMG Structure Paper;
(viii) disposals of Uneconomic Assets; and
(ix) disposals of assets up to an aggregate value of
(pound)50,000 (or its Sterling Equivalent) in each calendar
year.
(b) DISPOSALS FOR FULL CONSIDERATION
The Parent will ensure that any disposal permitted by clause
20.3(a) (other than clause 20.3(a)(iv) or (v)) is:
(i) for at least market value payable in cash (except in the
case of a disposal permitted by clause 20.3(a)(iii)) on or
before completion of that disposal; and
(ii) as part of an arm's length transaction on terms that the
purchaser of the relevant asset does not obtain title to or
possession of that asset before completion of that
disposal.
(c) NEGATIVE PLEDGE
No Obligor will, and each Obligor will procure that no Group
Company will, create or agree to create or permit to subsist any
Security Interest over any part of its assets other than:
(i) any Security Interest granted by the Senior Finance
Documents;
(ii) liens securing obligations no more than 30 days overdue,
arising by operation of law and in the ordinary course of
trading;
(iii) Security Interests arising out of title retention
provisions in a supplier's standard conditions of supply of
goods where the goods in question are supplied on credit
and are acquired by relevant Group Company in the ordinary
course of trading;
(iv) set-off rights arising or created in favour of banks in
respect of accounts or deposits maintained in the ordinary
course of the Group's business;
(v) Security Interests set out in the Existing Loans and
Security Memorandum; and
(vi) Security Interests granted in relation to the Standstill
Loans until the earlier of the first Drawing under the Term
A Facility and 10 Business Days after the Unconditional
Date and provided that the relevant Group Companies are at
all times in compliance with the Standstill Agreements.
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20.4 ACQUISITION AND INVESTMENT UNDERTAKINGS
(a) ACQUISITIONS
No Obligor will, and each Obligor will procure that none of its
Subsidiaries will, acquire any assets or shares other than:
(i) in the ordinary course of its trading activity;
(ii) shares in the Targets;
(iii) acquisitions of shares set out in the KPMG Structure Paper;
(iv) Capital Expenditure required for the business of the
relevant Group Company, subject to compliance with clause
20.14(d) (Capital Expenditure);
(v) Approved Acquisitions up to an aggregate value
of (pound)9,000,000 (or its Sterling Equivalent) in each
calendar year provided that if the Approved Acquisitions in
any calendar year amount to less than (pound)9,000,000 (or
its Sterling Equivalent) in aggregate, the shortfall up to
a maximum aggregate limit of (pound)6,000,000 (or its
Sterling Equivalent) may be carried forward to the
subsequent calendar year but no further and so that any
such shortfall may be utilised in that subsequent calendar
year prior to utilising any of the (pound)9,000,000 (or its
Sterling Equivalent) amount which is permitted for that
calendar year;
(vi) the Huntercombe Roehampton Development, the Huntercombe
Staffordshire Development, the Shawcross Extension and the
Berkshire Extension; and
(vii) the Vale Court Acquisition.
(b) JOINT VENTURES
(i) No Obligor will, and each Obligor will procure that no
Group Company will, enter into any joint venture,
partnership or similar arrangement with any person other
than the Existing Joint Ventures;
(ii) The Parent will procure that each Group Company which is
party to an Existing Joint Venture Document exercises its
rights in relation to the Existing Joint Ventures to ensure
that the Existing Joint Ventures do not incur any material
liability outside the ordinary course of trading; and
(iii) For the avoidance of doubt, subject to the other provisions
of this agreement, the Group shall be permitted to make
further investments in The Focus Assessment and
Rehabilitation Service Limited, an Existing Joint Venture.
20.5 FINANCING ARRANGEMENT UNDERTAKINGS
(a) BORROWINGS
No Obligor will, and each Obligor will procure that none of its
Subsidiaries will, incur or permit to be outstanding any Financial
Indebtedness other than:
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(i) amounts due under any Senior Finance Document or any Equity
Document;
(ii) Financial Indebtedness permitted by clauses 20.5(b)
(Guarantees) and 20.5(c) (Loans) which shall include, for
the avoidance of doubt, guarantees and loans provided by
members of the Isle of Man Group in respect of the
Financial Indebtedness of other members of the Isle of Man
Group;
(iii) unsecured overdraft or working capital facilities in
relation to which a Bank Guarantee in an amount equal to
the maximum principal amount of those facilities has been
issued;
(iv) finance leases and hire purchase contracts not exceeding
(pound)500,000 (or its Sterling Equivalent) (or such other
figure as is agreed with the Lenders) in aggregate capital
value at any time;
(v) amounts due under the Crestacare Loan Notes;
(vi) Financial Indebtedness (other than the Standstill Loans)
set out in the Existing Loans and Security Memorandum;
(vii) the Standstill Loans until the earlier of the first Drawing
under the Term A Facility and 10 Business Days after the
Unconditional Date and provided that the relevant Group
Companies are at all times in compliance with the
Standstill Agreements;
(viii) Financial Indebtedness contemplated by the KPMG Structure
Paper;
(ix) Financial Indebtedness up to a maximum aggregate amount
of(pound)6,500,000 (or its Sterling Equivalent) in each
calendar year incurred for the purpose of making Approved
Acquisitions provided that if any Obligor or any of its
Subsidiaries has incurred less than(pound)6,500,000 (or its
Sterling Equivalent) of Financial Indebtedness for the
purpose of making Approved Acquisitions in any calendar
year then such shortfall may be carried forward to the
subsequent calendar year but no further and only to the
extent that the Financial Indebtedness which can be
incurred under this clause 20.5(a)(ix) for that subsequent
calendar year shall not exceed 72 per cent of the amount
that can be spent on Approved Acquisitions in accordance
with clause 20.4(a)(v) (Acquisitions);
(x) Financial Indebtedness incurred by Idun Security Companies
in respect of loans provided by other members of the Idun
Group and Financial Indebtedness incurred by Fife Obligors
in respect of loans provided by members of the Excluded
Fife Group for the purposes of their day to day business
operations; and
(xi) Financial Indebtedness incurred for the purpose of the
Huntercombe Roehampton Development provided that the
recourse of the lenders of such Financial Indebtedness is
limited to the assets being developed in connection with
the Huntercombe Roehampton Development or limited to the
assets of the RBS Group;
(xii) the Vale Court Indebtedness provided that any Security
Interests granted in relation to the Vale Court
Indebtedness are limited to the assets of Vale Court only;
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(xiii) BACS facilities provided to Idun Health Care Limited by
Barclays Bank Plc to the extent they replace the BACS
facilities provided to Idun Health Care Limited by Barclays
Bank Plc which are in place as at the date of this
agreement and which are detailed in the Existing Loans and
Security Memorandum.
(b) GUARANTEES
No Obligor will, and each Obligor will procure that no Group
Company will grant or make available any guarantee without the
prior written consent of the Majority Lenders, such consent not to
be unreasonably withheld or delayed, other than:
(i) any guarantee contained in any Senior Finance Document;
(ii) any guarantee given by an Obligor or any Group Company in
respect of the indebtedness or other obligations of a Group
Company provided that such indebtedness is permitted under
clauses 20.5(a) (Borrowings) (i), (iii), (iv) or (v) or
such other obligations have been incurred without breach of
this agreement;
(iii) guarantees set out in the Existing Loans and Security
Memorandum;
(iv) any guarantee of the Asset Administration Agreements in
connection with the Securitisations by UK Holdco;
(v) guarantees given by Idun Security Companies in respect of
the indebtedness or other obligations of other members of
the Idun Group and guarantees given by Fife Obligors in
respect of the indebtedness or other obligations of members
of the Excluded Fife Group for the purposes of their day to
day business operations;
(c) LOANS
No Obligor will, and each Obligor will procure that no Group
Company will, make any loans or grant any credit to any person
other than:
(i) normal trade credit;
(ii) loans by an Obligor to another Obligor;
(iii) loans by any Group Company which is not an Obligor to any
other Group Company;
(iv) loans contemplated by the KPMG Structure Paper;
(v) loans set out in the Existing Loans and Security
Memorandum;
(vi) loans made in compliance with clause 12.6(b) (Excess
cashflow);
(vii) loans to a Group Company or an Excluded Company from the
Net Proceeds of the Australian Disposal once the Term C
Facility has been repaid in full and any Investor Loan
Notes issued in respect of the Alchemy Undertaking have
been repaid in full;
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(viii) loans from Idun Security Companies to other members of the
Idun Group and from Fife Obligors to members of the
Excluded Fife Group for the purposes of their day to day
business operations; and
(ix) loans between Excluded Companies and Group Companies in
place at the date of this agreement.
(d) HEDGING
(i) No Obligor will, and each Obligor will procure that no
Group Company will, enter into any Hedging Instrument other
than (A) the Hedging Agreements referred to in (ii) below
and (B) Hedging Instruments entered into in the ordinary
course of its business for the purpose of managing or
hedging its exposure to interest rates, exchange rates or
commodity prices.
(ii) The Obligors will, by no later than 30 days after the
Unconditional Date, enter into Hedging Agreements so as to
ensure that, for a period of at least three years from the
first Drawdown Date, the Group has hedging of interest rate
exposure on terms satisfactory to the Facility Agent in
relation to at least 66 per cent. of the aggregate amount
capable of being drawn under the Term Facilities. At no
time will the Group have hedging of interest rate exposure
in relation to the Term Facilities which is greater than
100 per cent. of the aggregate amount capable of being
drawn down under the Term Facilities.
(e) BANKING BUSINESS
(i) Each Obligor will, and will procure that each Group Company
will:-
(A) only maintain the minimum number of bank accounts
commensurate with running its business efficiently;
(B) not artificially divert monies away from bank
accounts charged to the Lenders;
(ii) Each Obligor will, and will procure that the Idun Group
will, within four months of the Unconditional Date only
maintain bank accounts with the Facility Agent or any other
bank approved by the Facility Agent (acting reasonably)
save where security arrangements existing as at the
Unconditional Date prevent the transfer of accounts to the
Facility Agent.
(f) UPSTREAMING OF CASH
The Parent will procure that, to the extent permitted by law or by
any contractual agreements in force as at the date of this
agreement which are set out in the Information Pack (but excluding
any restriction in transferring Surplus Cashflow which occurs as a
result of a default under such contractual agreements), within 10
Business Days of delivery of the Quarterly Accounts for the
Accounting Quarter ending 31 March and the Quarterly Accounts for
the Accounting Quarter ending 30 September in each calendar year,
each of the Excluded Groups will transfer all of its Surplus
Cashflow for the appropriate Relevant Period to an Obligor
(whether by way of dividend, intercompany loan or otherwise),
provided that:
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(i) the Isle of Man Group and the Excluded Fife Group will
transfer at least (pound)750,000 of Surplus Cashflow in
aggregate to Obligors in respect of the Relevant Period
ending 31 March 2003, and thereafter the Isle of Man Group
and the Excluded Fife Group will transfer at least
(pound)1,000,000 of Surplus Cashflow in aggregate to
Obligors in respect of each Relevant Period;
(ii) the Securitisation Group and the Idun Group will together
transfer at least sufficient Surplus Cashflow to Obligors
in respect of each appropriate Relevant Period which, when
added to Surplus Cashflow transferred by the Isle of Man
Group and the Excluded Fife Group to Obligors under this
clause, will enable the Group to comply with its
obligations under clauses 8 (Interest) and 11 (Repayment of
Drawings) until the next payment of Surplus Cashflow to
Obligors in accordance with this clause 20.5(f) in respect
of the following appropriate Relevant Periods.
20.6 CONDUCT OF BUSINESS UNDERTAKINGS
(a) INSURANCE
(i) Each Obligor will, and will procure that each Group Company
will, effect and maintain insurances at its own expense in
relation to all its assets and risks of an insurable nature
with insurers approved by the Facility Agent which:
(A) provide cover against all risks which are normally
insured against by other companies owning or
possessing similar assets or carrying on similar
businesses;
(B) be in amounts which would in the circumstances be
prudent for those companies;
(C) have the interest of the Security Agent as mortgagee
noted on the policies;
(D) contain a loss payee clause providing that all
monies payable shall be paid to the Security Agent,
(E) and each Obligor will, and will procure that each
Group Company will, use all reasonable endeavours to
prevent any acts, omissions or events of default
occurring which render or might render any material
policies of insurance taken out by it void or
voidable.
The Obligors will not be required to provide security over
the Key Executive Policy in favour of the Security Agent or
comply with sub paragraphs (C) and (D) of this clause
20.6(a) until the earliest of (i) the date on which such
Key Executive Policy is for the benefit of an Obligor, (ii)
the date of which the Fife Loan Repayment occurs and (iii)
the date falling 3 months after the Unconditional Date.
(ii) The Parent will procure that within 21 days after the
Unconditional Date a Key Executive Policy will have been
effected and will be maintained in relation to the death
and disability of the Key Executive to expire no earlier
than 3 years after the date of this agreement and that on
the earlier of (i) the date on which the Fife Loan
Repayment occurs and (ii) the date falling 3 months after
the Unconditional Date, such Key Executive Policy is for
the benefit of an Obligor.
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(iii) The Parent will:
(A) supply to the Facility Agent on request copies of
each policy for insurance required to be maintained
in accordance with clause 20.6(a)(i) or (ii) (the
"POLICIES"), together with the current premium
receipts relating to the policies;
(B) promptly notify the Facility Agent of any material
change to the insurance cover of each Obligor and
each other Group Company; and
(C) promptly notify the Facility Agent of any claim
under any policy which is for, or is reasonably
likely to result in a claim under that policy for,
an amount in excess of (pound)100,000 (or its
equivalent in other currencies).
(b) INTELLECTUAL PROPERTY
Each Obligor will, and will procure that each Group Company will:
(i) ensure that it beneficially owns or has all necessary
consents to use all the Intellectual Property Rights that
it requires in order to conduct its business;
(ii) observe and comply with all obligations and laws applicable
to it in relation to the Intellectual Property; and
(iii) maintain and protect all Material Intellectual Property.
(c) TAXES
Each Obligor will, and will procure that each Group Company will,
pay when due (or within any applicable time limit), all Taxes
imposed upon it or any of its assets, income or profits on any
transactions undertaken or entered into by it except in relation
to any bona fide tax dispute for which proper provision has been
made in its accounts.
(d) PENSION SCHEMES
(i) Other than in relation to Employee Benefit Arrangements
that are maintained in the United States, the Parent will:
(A) promptly deliver to the Facility Agent any actuarial
reports in relation to the pension schemes for the
time being operated by Group Companies ("ACTUARIAL
REPORTS") which are prepared in order to comply with
then current statutory or auditing requirements; and
(B) if requested by the Facility Agent, (acting
reasonably) promptly prepare actuarial reports and
deliver those to the Facility Agent, if the Facility
Agent (acting reasonably) believes that any relevant
material statutory or auditing requirement
concerning funding levels is not being complied
with.
(ii) Other than in relation to Employee Benefit Arrangements
that are maintained in the United States, the Parent will
ensure that all such pension schemes are fully funded to
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the extent required by law based on reasonable actuarial
assumptions applicable in the jurisdiction in which the
relevant pension scheme is maintained.
(e) ARM'S LENGTH TRANSACTIONS
No Obligor will, and each Obligor will procure that no Group
Company will, enter into any agreement or arrangement (except with
another Obligor) other than on an arm's length basis and (except
as permitted under this agreement) in the normal course of
trading.
20.7 ENVIRONMENTAL UNDERTAKINGS
Each Obligor will, and each Obligor will procure that each Group Company
will:
(a) comply with all Environmental Approvals and Environmental Laws
applicable to it where failure to do so is reasonably likely to
have a Material Adverse Effect;
(b) obtain and maintain all Environmental Approvals applicable to it
where failure to do so is reasonably likely to have a Material
Adverse Effect; and
(c) promptly upon receipt of the same notify the Facility Agent of any
claim, notice or other communication served on it in relation to:
(i) any Environmental Law or Environmental Approval applicable
to it or if it becomes aware of any actual or prospective
material variation to any Environmental Law or
Environmental Approval; and
(ii) any material investment required to be made by any Group
Company to maintain, acquire or renew any Environmental
Approval or if it otherwise becomes aware of such a
requirement.
20.8 CHANGES TO TRANSACTION DOCUMENTS, SECURITISATION DOCUMENTS, EXISTING
JOINT VENTURE DOCUMENTS AND STANDSTILL AGREEMENTS
(a) The Parent will not, and will procure that none of its
Subsidiaries will, agree to any amendment of any term of any
Equity Document or Securitisation Document or Existing Joint
Venture Document or Standstill Agreement or the Crestacare Loan
Notes which would adversely affect the interests of any Finance
Party under the Senior Finance Documents, or any amendment,
supplement or other modification of the Merger Agreement as
supplemented by the Disclosure Letter, Option Agreement, Stock
Purchase Agreement, Tender Agreements, Articles of Merger,
Certificate of Merger, or the Offer to Purchase referred to in the
definition of US Offer Document which would adversely affect the
interests of any Finance Party under the Senior Finance Documents
without the prior written consent of the Majority Lenders (acting
reasonably).
(b) For the avoidance of doubt, subject to the other provisions of
this agreement, this clause 20.8 shall not prevent further
investments being made by a Group Company in The Focus Assessment
and Rehabilitation Service Limited, an Existing Joint Venture.
(c) This clause 20.8 shall not prevent the conversion of the
(pound)4,000,000 discounted unsecured B loan notes 26 August 2005
of FSHC Investments, into fixed rate unsecured C loan notes 2005
of FSHC Investments and any interest payments pursuant thereto.
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20.9 SHARE CAPITAL, DIVIDEND AND OTHER JUNIOR FINANCING ARRANGEMENT
UNDERTAKINGS
(a) SHARE ISSUES
No Obligor will, and each Obligor will procure that no Group
Company will, allot or issue any relevant securities (as defined
in section 80(2) of the Companies Act 1985) other than (a) issues
of shares by the Parent or Jersey Holdco to the Original Equity
Investors and (b) issues of shares by Subsidiaries of the Parent
or of Jersey Holdco to their direct Holding Company with security
granted over such securities in favour of the Security Agent
equivalent to that (if any) existing in respect of relevant
securities already issued by such Company.
(b) REDEMPTION AND ACQUISITION OF OWN SHARES
No Obligor will, and each Obligor will procure that no Group
Company will, directly or indirectly, redeem, purchase, retire or
otherwise acquire any shares or warrants issued by it or otherwise
reduce its capital other than in favour of an Obligor save for the
repayment of preferred stock of the US Target pursuant to the
Stock Purchase Agreement.
(c) RESTRICTION ON PAYMENT OF DIVIDENDS
No Obligor will, and each Obligor will procure that no Group
Company will, declare or pay, directly or indirectly, any dividend
or make any other distribution or pay any interest or other
amounts, whether in cash or otherwise, on or in respect of its
share capital or any class of its share capital or set apart any
sum for any such purpose, other than:
(i) by a Group Company to another Group Company which is its
immediate holding company;
(ii) as permitted under the Intercreditor Deed; or
(iii) payment of accrued dividends on preferred stock of the US
Target pursuant to the Stock Purchase Agreement.
(d) SHAREHOLDER PAYMENTS
No Obligor will, and each Obligor will procure that no Group
Company will, make any repayment of principal of, or payment of
interest on, or any other payment with respect to any Investor
Loan Notes or the Crestacare Loan Notes, or, subject to paragraph
(e) below, any other Equity Document, or any other shareholder
loans to the Parent or Jersey Holdco, other than as permitted
under the Intercreditor Deed.
(e) PAYMENTS TO MEMBERS
No Obligor will, and each Obligor will procure that no Group
Company will, make any payment to its members by way of
management, royalty or similar fee unless, subject to the
Intercreditor Deed, that payment:
(i) is provided under the original terms of the Equity
Documents; or
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(ii) is in relation to services actually provided on arm's
length commercial terms (including the payment of fees to
Alchemy Partners pursuant to clause 7.2 of the FSHC
Investment Agreement and the payment of salaries to ▇▇▇▇▇▇
▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ pursuant to their employment
contracts with the Parent and/or Four Seasons Health Care
Investments Limited);
(iii) is in respect of any management fees payable to the US
Target or Omega (UK) Limited in accordance with the Asset
Administration Agreements; or
(iv) is otherwise permitted under the Senior Finance Documents.
(f) CASH MOVEMENT
No Obligor will, and each Obligor will procure that no Group
Company will, be a party to any contractual or similar restriction
(except as set out in any Senior Finance Document) by which any
Group Company is prohibited from making loans, transferring assets
or making any payment of dividends, distributions of income or
other amounts to another Group Company or to the Senior Finance
Parties.
(g) LOAN NOTE CONVERSION
This clause 20.9 shall not prevent the conversion of the
(pound)4,000,000 discounted unsecured B loan notes 26 August 2005
of FSHC Investments into fixed note unsecured C loan notes 2005 of
FSHC Investments and any interest payments pursuant thereto.
20.10 INFORMATION AND ACCOUNTING UNDERTAKINGS
(a) DEFAULTS
Each Obligor will notify the Facility Agent forthwith upon
becoming aware of the occurrence of a Default and will from time
to time on request supply the Facility Agent with a certificate
signed by any two of its directors certifying that no Default has
occurred and is continuing or, if that is not the case, setting
out details of any Default which is outstanding and the action
taken or proposed to be taken to remedy it.
(b) BOOKS OF ACCOUNT AND AUDITORS
Each Obligor will, and will procure that each Group Company will:
(i) keep proper books of account relating to its business; and
(ii) have as its auditors any one of Deloitte & Touche, Ernst &
Young, KPMG or PricewaterhouseCoopers (or such other firm
as the Facility Agent shall approve (such approval not to
be unreasonably withheld or delayed)).
(c) FSHC FINANCIAL STATEMENTS
The Parent will deliver to the Facility Agent (with sufficient
copies for each of the Lenders):
(i) as soon as available, and in any event within 120 days
after the end of each Financial Period (or, in relation to
the first Financial Periods for each of the Existing Group
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(other than the Fife Obligors), the Isle of Man Group, the
Fife Group, the Idun Group and the US Target Group (other
than the Idun Group) ending after the Unconditional Date,
150 days), copies of:
(A) the audited consolidated accounts of the Existing
Group (other than the Fife Obligors), the Isle of
Man Group, the Fife Group, the Idun Group or the US
Target Group (other than the Idun Group), as the
case may be, as at the end of and for that Financial
Period, including a profit and loss account, balance
sheet, cash flow statement and directors and
auditors' report on those accounts; and
(B) the audited accounts of each Subsidiary of the
Parent for the relevant Financial Period;
(ii) as soon as available, and in any event within 30 days of
the end of each Accounting Quarter (or, for each Accounting
Quarter ending before the first anniversary of the
Unconditional Date, 40 days), copies of the unaudited
consolidated management accounts of the Parent and its
Subsidiaries as at the end of and for that Accounting
Quarter, including a profit and loss account, balance
sheet, cash flow statement, management commentary for the
Parent and its Subsidiaries and a report of the results of
any regulatory inspection, in such form as the Facility
Agent may reasonably require;
(iii) as soon as available and in any event within 30 days from
the end of each Management Accounting Period (or, for each
Management Accounting Period ending before the first
anniversary of the Unconditional Date, 40 days) after the
Unconditional Date:
(A) copies of the unaudited consolidated management
accounts of the Parent and its Subsidiaries as at
the end of and for that Management Accounting
Period, including a profit and loss account, balance
sheet, cash flow statement (both on a monthly and
cumulative basis) and comparing actual performance
to forecasted performance as set out in each of the
most recent Operating Budgets, together with a
management commentary for the Parent and its
Subsidiaries (including as to the reasons for any
significant adverse variance from the Operating
Budgets) and summary of the planned acquisitions and
Capital Expenditure of the Parent and its
Subsidiaries for the following 12 months; and
(B) an update of the projections contained in each of
the most recent Operating Budgets delivered under
clause 20.10(c)(iv),
in such form as the Parent and the Facility Agent shall
agree; and
(iv) no less than one month before the beginning of each of the
Financial Periods, the Operating Budget for the relevant
companies for that Financial Period, in such form as the
Parent and the Facility Agent shall agree,
which accounts (other than those delivered pursuant to
paragraph (iv)), Operating Budgets and updates to the
Operating Budgets shall, in each case, have been approved
by the finance director of the Parent.
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(d) PHFL FINANCIAL STATEMENTS
Jersey Holdco will deliver to the Facility Agent (with sufficient
copies for each of the Lenders):
(i) as soon as available, and in any event within 120 days
after the end of each Financial Period (or, in relation to
the Financial Period ending 31 August 2003, 150 days),
copies of:
(A) the audited consolidated accounts of Jersey Holdco
and its Subsidiaries as at the end of that Financial
Period, including a profit and loss account, balance
sheet, cash flow statement and directors and
auditors' report on those accounts; and
(B) the audited accounts of each Subsidiary of Jersey
Holdco for that Financial Period;
(ii) as soon as available, and in any event within 30 days of
the end of each Accounting Quarter (or, for each Accounting
Quarter ending before the first anniversary of the
Unconditional Date, 40 days), copies of the unaudited
consolidated management accounts of Jersey Holdco and its
Subsidiaries as at the end of and for that Accounting
Quarter, including a profit and loss account, balance
sheet, cash flow statement, management commentary for
Jersey Holdco and its Subsidiaries and report of the result
of any regulatory inspection, in such form as the Facility
Agent may reasonably require;
(iii) as soon as available and in any event within 30 days from
the end of each Management Accounting Period (or, for each
Management Accounting Period ending before the first
anniversary of the Unconditional Date, 40 days) after the
Unconditional Date:
(A) copies of the unaudited consolidated management
accounts of Jersey Holdco and its Subsidiaries as at
the end of and for that Management Accounting
Period, including a profit and loss account, balance
sheet, cash flow statement (both on a monthly and
cumulative basis) and comparing actual performance
to forecasted performance as set out in each of the
most recent Operating Budgets, together with a
management commentary for the Group (including as to
the reasons for any significant adverse variance
from the Operating Budgets) and summary of the
planned acquisitions and Capital Expenditure of
Jersey Holdco and its Subsidiaries for the following
12 months; and
(B) an update of the projections contained in each of
the most recent Operating Budgets delivered under
clause 20.10(c)(iv),
in such form as Jersey Holdco and the Facility Agent
shall agree; and
(iv) no less than one month before the beginning of each
calendar year, the Operating Budget for the relevant
companies for that Financial Period, in such form as Jersey
Holdco and the Facility Agent shall agree,
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which accounts (other than those delivered pursuant to
paragraph (iv)), Operating Budgets and updates to the
Operating Budgets shall, in each case, have been approved
by the finance director of Jersey Holdco.
(e) COMPLIANCE CERTIFICATES
(i) Each of the Annual Accounts and Quarterly Accounts must be
accompanied by a certificate signed by the finance director
and one other director of the Parent, which shall:
(A) certify whether or not, as at the date of the
relevant accounts, the Parent was in compliance with
the financial covenants contained in clause 20.14
(Financial covenants) and contain reasonably
detailed calculations acceptable to the Facility
Agent; and
(B) confirm that, as at the date of that certificate, no
Default is outstanding or, if that is not the case,
set out details of any Default which is outstanding
and the action taken or proposed to be taken to
remedy it.
(ii) Each of the Annual Accounts must be accompanied by a
certificate from the Auditors which shall:
(A) be in a form acceptable to the Facility Agent;
(B) demonstrate whether or not, as at the date of the
relevant Annual Accounts, the Parent was in
compliance with the financial covenants contained in
clause 20.14 (Financial covenants); and
(C) confirm the amount of Excess Cashflow (together with
a calculation of how that amount has been
calculated) for the purpose of clause 12.6 (Excess
Cashflow).
(f) APPROVED ACCOUNTING PRINCIPLES
All accounts delivered to the Facility Agent under this agreement
shall be prepared in accordance with the Approved Accounting
Principles and, in the case of Annual Accounts, in compliance with
the Companies ▇▇▇ ▇▇▇▇. If there is a change in the Approved
Accounting Principles after the date of this agreement:
(i) the Parent shall promptly advise the Facility Agent;
(ii) following request by either the Facility Agent or the
Parent, the Parent and the Facility Agent shall negotiate
in good faith with a view to agreeing any amendments to
clauses 20.14 (Financial covenants) and 20.15 (Financial
definitions) which are necessary to give the Lenders
comparable protection to that contemplated by those clauses
at the date of this agreement;
(iii) if amendments satisfactory to the Majority Lenders are
agreed by the Parent and the Facility Agent, those
amendments shall take effect in accordance with the terms
of that agreement; and
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(iv) if amendments satisfactory to the Majority Lenders are not
so agreed then upon delivering any accounts pursuant to
paragraph (c) (i) or (ii) above the Parent shall either:
(A) deliver to the Facility Agent, in reasonable detail
and in a form satisfactory to the Facility Agent,
details of all any adjustments which need to be made
to the relevant accounts in order to bring them into
line with the Approved Accounting Principles as at
the date of this agreement; or
(B) ensure that the relevant accounts are prepared in
accordance with the Approved Accounting Principles
as at the date of this agreement.
(g) MANAGEMENT MEETINGS
The Facility Agent shall be entitled to call for meetings with the
senior management of the Parent and Jersey Holdco twice in each
calendar year to discuss financial information delivered under
clause 20.10(c) and 20.10(d) (Financial statements) on reasonable
prior notice and at times reasonably convenient to the senior
management of the Parent and/or Jersey Holdco, as the case may be.
(h) ACCOUNTING REFERENCE DATE
The Parent shall procure that no Group Company or Excluded Company
will change its Financial Period end without the prior consent of
the Facility Agent.
(i) INVESTIGATIONS
(i) If the Majority Lenders have reasonable grounds for
believing that either:
(A) any accounts or calculations provided under this
agreement are inaccurate or incomplete in any
material respect; or
(B) the Parent or Jersey Holdco is in breach of any of
its obligations under clause 20.14 (Financial
covenants),
then the Parent or Jersey Holdco will at their own
expense, if so required by the Facility Agent,
instruct the Auditors (or other firm of accountants
selected by the Facility Agent) to discuss the
financial position of the FSHC Group or the PHFL
Group, as the case may be, with the Facility Agent
and to disclose to the Facility Agent and the
Lenders (and provide copies of) such information as
the Facility Agent may reasonably request regarding
the financial condition and business of the FSHC
Group or the PHFL Group (as the case may be).
(ii) If, having taken the steps in (i) above, the Majority
Lenders request, the Facility Agent may instruct the
Auditors (or other firm of accountants selected by the
Facility Agent) to carry out an investigation into the
affairs, the financial performance and/or the accounting
and other reporting procedures and standards of the FSHC
Group at the Parent's expense, or into the affairs, the
financial performance and/or the accounting and other
reporting procedures and standards of the PHFL Group at
Jersey Holdco's expense and the Parent will procure that
full co-operation is given to the Auditors or other firm of
accountants so selected. If in any one calendar year more
than one such
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investigation is carried out and each reveals no such
inaccuracy or breach then the Parent shall only be liable
for the costs of the first such investigation.
(j) OTHER INFORMATION
The Parent will promptly deliver to the Facility Agent for
distribution to the Lenders:
(i) details of any litigation, arbitration, administrative or
regulatory proceedings relating to it or any of its
Subsidiaries involving a potential liability for the Group
of at least (pound)50,000 (or its Sterling Equivalent);
(ii) details of any material labour dispute affecting it or any
of its Subsidiaries or Jersey Holdco or any of its
Subsidiaries;
(iii) at the same time as it is sent to its creditors or the
creditors of Jersey Holdco, any other document or
information sent to any class of its creditors generally
(excluding for this purpose creditors which are Group
Companies);
(iv) any other information relating to the financial condition
or operation of any Group Company which the Facility Agent
may from time to time reasonably request;
(v) details of any breach of the provisions of any Transaction
Document of which it is aware;
(vi) copies of any notice given or received under the
Transaction Documents;
(vii) copies of all material documents or governmental reports or
filings relating to any Employee Benefit Arrangement as the
Facilities Agent shall reasonably request; and
(viii) written notice specifying (x) any material ERISA Event, the
occurrence of which or forthcoming occurrence of which any
Group Company becomes aware and would result in a material
liability, (y) what action the Group Companies and any of
their respective ERISA Affiliates have taken, are taking or
propose to take with respect thereto and (z) when known,
any action taken or threatened by the US Internal Revenue
Service, the US Department of Labor or the PBGC with
respect thereto; and
(ix) details of any material failure to achieve of any of the
steps set out in the Integration Plan in accordance with
the timetable set out therein and a written report from the
Parent detailing the action to be taken so as to ensure
that the timetable in the Integration Plan can be complied
with.
20.11 JERSEY OFFER UNDERTAKINGS
Jersey Bidco will
(a) JERSEY CODE OFFER DOCUMENT OR JERSEY NON CODE OFFER DOCUMENT
Despatch the Jersey Code Offer Document or Jersey Non Code Offer
Document, as the case may be, as soon as practicable and in any
event within 12 Business Days of the date of this Agreement.
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(b) PROGRESS OF JERSEY OFFER
Keep the Facility Agent informed as to the progress of the Jersey
Offer and any material developments in relation to the Jersey
Offer and promptly on request provide the Facility Agent with any
information or advice received in relation to the Jersey Offer.
(c) ANNOUNCEMENTS
(i) promptly deliver to the Facility Agent, copies of all press
and other announcements made by Jersey Bidco or by the
Jersey Target in connection with or in relation to the
Jersey Offer and any documents or statements issued by the
Panel, the Office of Fair Trading or the Competition
Commission or any other regulatory authority in relation to
the Jersey Offer;
(ii) where any announcement, press release or publicity material
refers to the Group or the Facility Agent or any other
Finance Party or the Facilities, not release or permit such
announcement, press release or publicity material to be
released until Jersey Bidco and the Facility Agent has each
given its consent to such release (such approval not to be
unreasonably withheld and to be given or refused within 24
hours of receipt by Jersey Bidco or the Facility Agent (as
the case may be) of the relevant material) provided that no
such consent or approval will be required for the Facility
Agent or the Lenders or the Parent or Jersey Bidco to make
an announcement required to be made to comply with any
relevant laws or regulation or requirements of the Panel or
London Stock Exchange or Jersey Financial Services
Commission (subject to these parties using all reasonable
endeavours to consult with each other prior to making the
announcement).
(d) CONDUCT OF JERSEY OFFER
Ensure that the Jersey Code Offer Document or Jersey Non Code
Offer Document (as the case may be) all other documents issued by
it or on its behalf in connection with the Jersey Offer and its
conduct of the Jersey Offer comply in all material respects with
all applicable laws and regulations (including the requirements of
the Code if applicable and all applicable US securities and tender
offer requirements) and that as and when necessary all material
consents from all governmental and other regulatory authorities
required in connection with the Jersey Offer are obtained,
maintained and/or renewed as appropriate and that all its
obligations in connection with the Jersey Offer are performed in
all material respects.
(e) JERSEY OFFER TERMS
(i) not increase the amount payable by it in respect of the
Jersey Target Shares pursuant to the Jersey Offer or
otherwise vary the consideration payable pursuant to the
Jersey Offer without the prior written consent of the
Lenders;
(ii) not extend the Jersey Offer beyond 81 days from the date on
which the Jersey Offer Document is posted if the Jersey
Code Offer is made or beyond the US Termination Date if the
Jersey Non Code Offer is made;
(iii) not without the prior written consent of the Lenders take
any action (and procure that no person acting in concert
with it takes any action) which will result in it becoming
obliged to make an offer to shareholders in the Jersey
Target under Rule 9 of the Code;
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(iv) not waive or amend any condition of the Jersey Offer (or
exercise any discretion or give any consent under any
Jersey Offer Document) except:
(A) if required by the Parent, the Code, the rules or
requirements of the London Stock Exchange or Jersey
Financial Services Commission or any other
applicable law or regulation with binding effect;
(B) where the Panel will not allow the relevant
condition to be invoked; or
(C) with the prior written consent of the Facility Agent
(but on the basis that the Facility Agent will treat
itself as being bound by Rule 13 of the Code as if
it was subject to the jurisdiction of the Takeover
Panel);
(v) not declare the Jersey Offer unconditional until valid
acceptances by shareholders of the Jersey Target have been
received in respect of an aggregate amount of not less than
90% of the shares and the warrants to which the Jersey
Offer relates.
(f) PURCHASE OF REMAINING JERSEY TARGET SHARES
Promptly following the Unconditional Date use its best endeavours
(which shall not include an obligation to purchase Jersey Target
Shares at a price higher than in the Jersey Offer) to acquire all
the issued share capital of the Jersey Target as soon as
reasonably practicable. Without limiting the foregoing, Jersey
Bidco will promptly after becoming entitled to do so, exercise its
rights under Articles 117 and 118 of the Companies (Jersey) Law
1991 (as amended) and ensure that notices under Article 117(1) of
that Law are despatched within seven Business Days of Jersey Bidco
being entitled to despatch such notices.
(g) PROVISION OF JERSEY TARGET SECURITY
If, as a result of the Jersey Offer, as at the Unconditional Date
the US Target and Jersey Bidco together beneficially own less than
95 per cent of the Jersey Target Shares, use its best endeavours
to procure that the Jersey Target and the Jersey Target
Subsidiaries each provide the following documents as soon as
practicable after the Unconditional Date and in any event within
24 days of the Unconditional Date:
(i) an Accession Document to this agreement;
(ii) the Security Documents listed against its name in part 2 of
Schedule 9;
(iii) an Accession Document to the Intercreditor Deed;
(iv) a Jersey law security interest agreement entered into by
Jersey Bidco over the Jersey Target Shares acquired by
Jersey Bidco,
(v) those documents set out in parts 3 and 4 of Schedule 4 to
the extent not already provided,
and that prior to entering into such documents the Financial
Assistance Resolutions of the Jersey Target and the Jersey Target
Subsidiaries are passed and the Jersey Target and the
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Jersey Target Subsidiaries comply with the provisions of Article
58 of the Companies (Jersey) Law 1991 (as amended) in all
respects.
20.12 US OFFER UNDERTAKINGS
(a) OFFER TERMS
Without the Facility Agent's prior consent, the Parent will
procure that US Bidco will not, and US Bidco will not:
(i) increase the amount payable by it in respect of the US
Target Shares pursuant to the US Offer or the First US
Merger or otherwise vary the consideration payable pursuant
to the US Offer or the First US Merger;
(ii) increase the amount payable in respect of the series C
preferred shares of US Target held by OHI pursuant to the
Stock Purchase Agreement or otherwise vary the
consideration payable pursuant to the Stock Purchase
Agreement;
(iii) waive or amend or otherwise relinquish any condition of the
US Offer, the First US Merger, the Option Agreement, the
Stock Purchase Agreement or the Tender Agreements; or
(iv) waive or otherwise relinquish any of its rights or causes
of actions under or arising out of the Merger Agreement as
supplemented by the Disclosure Letter, the US Offer
Document, the Option Agreement, the Stock Purchase
Agreement or the Tender Agreements.
(b) MINIMUM NUMBER OF US TARGET SHARES
US Bidco shall not, and the Parent will procure that US Bidco
shall not, acquire any US Target Shares pursuant to the US Offer
unless (i) at least the Minimum Number of US Target Shares shall
have been validly tendered pursuant to the US Offer Document and
shall not have been withdrawn and (ii) US Bidco shall have
accepted such shares for payment strictly in accordance with the
Merger Agreement and the Offer to Purchase.
(c) COMPLETION OF US MERGERS
(i) The Parent will, and will cause US Bidco to and US Bidco
will, comply in all material respects with its respective
obligations under the Merger Agreement, the Option
Agreement, the Stock Purchase Agreement and the Tender
Agreements enforce all material rights under such
agreements and use its commercially reasonable efforts to
complete the First US Merger as soon as practicable after
the Unconditional Date and in any event within 120 days
thereafter.
(ii) The Parent will, and will cause US Bidco to, and US Bidco
will conduct and consummate the First US Merger in
accordance with the KPMG Structure Paper and certified copy
of the Merger Agreement in form and substance satisfactory
to the Facility Agent, delivered to the Facility Agent
pursuant to clause 4.1(b).
(iii) Promptly upon consummation of the first US Merger, the
Parent will procure that US Target will deliver to the
Facility Agent:
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(A) evidence that the filing of the Articles of Merger
with the State Department of Assessments and
Taxation of
Maryland and the Certificate of Merger
with the Secretary of State of Delaware have taken
place and that the Effective Time (as defined in
Section 3.1(a) of the Merger Agreement) has taken
place; and
(B) a legal opinion from White & Case as regards US law
in form and substance satisfactory to the Facility
Agent.
(d) CONDUCT OF US OFFER AND US MERGER
The Parent will procure that US Bidco will and US Bidco will
ensure that the US Offer Document, the Merger Agreement, the
Option Agreement, the Stock Purchase Agreement, the Tender
Agreements, the US Proxy Materials, if applicable, and all other
documents entered into by it or issued or filed by it or on its
behalf in connection with the US Offer and/or the US Mergers and
its conduct of the US Offer and the US Mergers comply in all
respects with all applicable laws and regulations (including all
applicable US securities and tender offer requirements and the
Maryland General Corporation Law) and that as and when necessary
all consents from all governmental and other regulatory
authorities required in connection with the US Offer and US
Mergers are obtained, maintained and/or renewed as appropriate and
that all its obligations in connection with the US Offer and US
Mergers are performed in all material respects.
(e) MERGER INDEMNITY
Parent and US Bidco will jointly and severally on demand indemnify
each Finance Party and each of their respective Affiliates,
directors, officers, employees or agents (each an "Indemnified
Party") from and against any and all losses, liabilities, claims,
costs and expenses (including legal fees) which the relevant
Indemnified Party may suffer or incur (unless caused by the gross
negligence or wilful misconduct of the Indemnified Party) arising
out of or in connection with any actually or potential legal
action or other proceedings arising out of or relating to the US
Offer, any of the US Mergers, the Stock Purchase Agreement, Tender
Agreements, Option Agreement, the financing of the US Offer and US
Merger, or any purchase of shares in the US Target.
(f) US TARGET GROUP SECURITY
The Parent shall procure that each of the US Target and its
Subsidiaries listed in part 2 of Schedule 9 shall promptly provide
to the Facility Agent the following documents in the agreed form
duly executed and delivered by all parties thereto on the earlier
of the date of completion of the First US Merger and the date
falling 120 days after the Unconditional Date.
(i) an Accession Document to this agreement;
(ii) the Security Documents listed against its name in part 2 of
Schedule 9;
(iii) an Accession Document to the Intercreditor Deed;
(iv) those documents set out in parts 3 and 4 of Schedule 4 to
the extent not already provided.
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20.13 US ERISA
(a) No Obligor will, and each Obligor will procure that none of its
Subsidiaries will, have any Unfunded Liabilities for any and all
Plans maintained for or covering employees of any Obligor or its
Subsidiaries which would have a Material Adverse Effect.
(b) No Obligor will, and each Obligor will procure that none of its
Subsidiaries will, become a party to any Multiemployer Plan.
20.14 FINANCIAL COVENANTS
The Parent undertakes that it will procure that:
(a) DEBT TO EARNINGS
The ratio of Target Total Net Debt as at each Testing Date set out
in the table below to Target Adjusted EBITDA for the Testing
Period ending on that Testing Date shall not exceed A:1 as at that
Testing Date, where A has the value set out in the table below
opposite that Testing Date.
(b) TARGET INTEREST COVER
The ratio of Target Adjusted EBITDA to Target Net Interest for
each Testing Period ending on a Testing Date set out in the table
below shall not be less than B:1, where B has the value set out in
the table below opposite that Testing Date.
(c) FSHC INTEREST COVER
The ratio of FSHC EBITDA to FSHC Net Interest for each Testing
Period ending on a Testing Date set out in the table below shall
not be less than C:1, where C has the value set out in the table
below opposite that Testing Date.
(d) TARGET CASHFLOW
The ratio of Target Cashflow to Target Total Debt Service for each
Testing Period ending on a Testing Date set out in the table below
shall not be less than D:1, where D has the value set out in the
table below opposite that Testing Date.
(e) COVENANT RATIOS
The table referred to in clause 20.14(a) to (d) (inclusive) is the
following:
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-------------------------- -------------- ------------- ------------- -------------
TESTING DATE A B C D
-------------------------- -------------- ------------- ------------- -------------
31 December 2002 4.25 3.00 1.60 N/A
-------------------------- -------------- ------------- ------------- -------------
31 March 2003 4.60 3.00 1.60 0.90
-------------------------- -------------- ------------- ------------- -------------
30 June 2003 4.30 3.25 1.60 1.10
-------------------------- -------------- ------------- ------------- -------------
30 September 2003 3.55 3.65 1.75 1.10
-------------------------- -------------- ------------- ------------- -------------
31 December 2003 3.35 3.75 1.75 1.10
-------------------------- -------------- ------------- ------------- -------------
31 March 2004 3.15 4.00 1.75 1.10
-------------------------- -------------- ------------- ------------- -------------
30 June 2004 3.00 4.00 1.75 1.10
-------------------------- -------------- ------------- ------------- -------------
30 September 2004 2.80 4.00 1.75 1.10
-------------------------- -------------- ------------- ------------- -------------
31 December 2004 2.70 4.00 1.75 1.10
-------------------------- -------------- ------------- ------------- -------------
31 March 2005 2.55 4.00 1.75 1.10
-------------------------- -------------- ------------- ------------- -------------
30 June 2005 2.55 4.00 1.75 1.10
-------------------------- -------------- ------------- ------------- -------------
30 September 2005 2.35 4.00 1.75 1.10
-------------------------- -------------- ------------- ------------- -------------
31 December 2005 2.30 4.00 1.75 1.10
-------------------------- -------------- ------------- ------------- -------------
31 March 2006 2.10 4.00 1.75 1.10
-------------------------- -------------- ------------- ------------- -------------
30 June 2006 2.10 4.00 1.75 1.10
-------------------------- -------------- ------------- ------------- -------------
30 September 2006 2.00 4.00 1.75 1.10
-------------------------- -------------- ------------- ------------- -------------
31 December 2006 2.00 4.00 1.75 1.10
-------------------------- -------------- ------------- ------------- -------------
31 March 2007 2.00 4.00 1.75 1.10
-------------------------- -------------- ------------- ------------- -------------
30 June 2007 2.00 4.00 1.75 1.10
-------------------------- -------------- ------------- ------------- -------------
30 September 2007 2.00 4.00 1.75 1.10
-------------------------- -------------- ------------- ------------- -------------
31 December 2007 2.00 4.00 1.75 1.10
-------------------------- -------------- ------------- ------------- -------------
31 March 2008 2.00 4.00 1.75 1.10
-------------------------- -------------- ------------- ------------- -------------
30 June 2008 2.00 4.00 1.75 1.10
-------------------------- -------------- ------------- ------------- -------------
30 September 2008 2.00 4.00 1.75 1.10
-------------------------- -------------- ------------- ------------- -------------
31 December 2008 2.00 4.00 1.75 1.10
-------------------------- -------------- ------------- ------------- -------------
31 March 2009 2.00 4.00 1.75 1.10
-------------------------- -------------- ------------- ------------- -------------
30 June 2009 2.00 4.00 1.75 1.10
-------------------------- -------------- ------------- ------------- -------------
30 September 2009 2.00 4.00 1.75 1.10
-------------------------- -------------- ------------- ------------- -------------
31 December 2009 2.00 4.00 1.75 1.10
-------------------------- -------------- ------------- ------------- -------------
31 March 2010 2.00 4.00 1.75 1.10
-------------------------- -------------- ------------- ------------- -------------
30 June 2010 2.00 4.00 1.75 1.10
-------------------------- -------------- ------------- ------------- -------------
(f) GROUP COMPANIES NET WORTH
Group Companies Net Worth shall not in any calendar year ending on
the Testing Date specified in column (1) below fall below the
amount set out in column (2) below:
(1) (2)
TESTING DATE AMOUNT ((POUND) MILLIONS)
31 December 2003 20.00
31 December 2004 21.00
31 December 2005 22.00
31 December 2006 23.00
31 December 2007 24.00
31 December 2008 25.00
31 December 2009 26.00
31 December 2010 27.00
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(g) CAPITAL EXPENDITURE
(i) Subject to paragraph (ii) below, the Parent shall procure
that the Target Group Covenant Companies shall not, in any
calendar year incur Capital Expenditure, excluding Approved
Acquisitions, in excess of 115 per cent. in aggregate of
the level of Capital Expenditure for the Target Group
Covenant Companies set out in the Approved Projections and
thereafter in each of the Operating Budgets.
(ii) If the Capital Expenditure (excluding Approved
Acquisitions) incurred in any calendar year is less than
the amount set out in clause 20.14(g)(i) above the
shortfall may be carried forward to the subsequent calendar
year but no further.
20.15 FINANCIAL DEFINITIONS
For the purposes of clause 20.14 (Financial Covenants):
"BORROWER FREE ACCOUNT" has the meaning given to it in the Second
Securitisation Offering Circular;
"CASH" means cash at bank credited to an account in the name of a Target
Group Covenant Company with an Eligible Lender and to which that Target
Group Covenant Company is beneficially entitled which is repayable on
demand (or within 30 days of demand) without condition;
"CASH EQUIVALENTS" means marketable debt securities with a maturity of
three months or less and with a short term debt rating of at least A1 +
granted by Standard & Poor's Corporation or P1 granted by ▇▇▇▇▇'▇
Investors Services, Inc. to which a Target Group Covenant Company is
beneficially entitled, and which can be promptly realised by that Target
Group Covenant Company without condition;
"COVENANT COMPANIES" means the FSHC Group Covenant Companies and the
Target Group Covenant Companies;
"ELIGIBLE LENDER" means any bank or financial institution with a short
term rating of at least A1 granted by Standard & Poor's Corporation or P1
granted by ▇▇▇▇▇'▇ Investors Services, Inc.;
"FSHC EBITDA" means the consolidated profit of the FSHC Group Covenant
Companies for the relevant Testing Period:
(a) before any deduction of corporation tax or other Taxes on income
or gains;
(b) before any deduction for FSHC Interest Payable;
(c) after deducting (to the extent otherwise included) FSHC Interest
Receivable;
(d) excluding extraordinary items;
(e) excluding any Offer Costs or Severance Costs incurred by any of
the FSHC Group Covenant Companies, to the extent they are treated
as exceptional items, that are expensed on or prior to the first
anniversary of the Unconditional Date;
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(f) after deducting (to the extent otherwise included) the amount of
profit (or adding back the amount of loss) of any FSHC Group
Covenant Company (other than the Parent) which is attributable to
any third party (other than a FSHC Group Covenant Company) which
is a shareholder in that FSHC Group Covenant Company;
(g) after adding back or deducting, as the case may be, the amount of
any loss or gain against book value arising on a disposal of any
asset (other than stock disposed of in the ordinary course of
trading) by a FSHC Group Covenant Company during that Testing
Period, to the extent included in arriving at FSHC EBITDA for that
Testing Period;
(h) before deducting amortisation of any goodwill or any intangible
assets; and
(i) before deducting any depreciation on fixed assets
"FSHC GROUP COVENANT COMPANIES" means the Parent and its Subsidiaries
from time to time but excluding UK Holdco and its Subsidiaries from time
to time;
"FSHC INTEREST" means interest and amounts in the nature of interest paid
or payable in relation to any Financial Indebtedness of the FSHC Group
Covenant Companies (other than Financial Indebtedness owed by one
Covenant Company to another Covenant Company) together with, to the
extent that it is not Financial Indebtedness of FSHC Group Covenant
Companies, any Financial Indebtedness under the Term C Facility and the
Cash Bridge Facility (but excluding any Financial Indebtedness under the
Term A Facility, Term B Facility and the Revolving Facility), including:
(a) the interest element of finance leases;
(b) discount and acceptance fees payable (or deducted) in relation to
any Financial Indebtedness of the FSHC Group Covenant Companies;
(c) fees payable in connection with the issue or maintenance of any
bond, letter of credit, guarantee or other assurance against
financial loss which constitutes Financial Indebtedness of a FSHC
Group Covenant Company and is issued by a third party on behalf of
a FSHC Group Covenant Company;
(d) repayment and prepayment premiums payable or incurred in repaying
or prepaying any Financial Indebtedness of the FSHC Group Covenant
Companies together with, to the extent that it is not Financial
Indebtedness of FSHC Group Covenant Companies, any Financial
Indebtedness under the Term C Facility and the Cash Bridge
Facility (but excluding any Financial Indebtedness under the Term
A Facility, Term B Facility and the Revolving Facility) other than
any such premiums arising under clause 16.10 (Prepayment Fees) any
such premiums arising under any other financing arrangements
arranged by the Arranger with all or any of the Covenant
Companies; and
(e) commitment, utilisation and non-utilisation fees payable or
incurred in relation to Financial Indebtedness of the FSHC Group
Companies together with, to the extent that it is not Financial
Indebtedness of FSHC Group Covenant Companies, Financial
Indebtedness under the Term C Facility and the Cash Bridge
Facility (but excluding Financial Indebtedness under the Term A
Facility, Term B Facility and the Revolving Facility);
-110-
"FSHC INTEREST PAYABLE" means the total of:
(a) FSHC Interest accrued (whether or not paid or compounded and
accordingly added to principal) during the relevant Testing
Period; and
(b) the amount of the discount element of any Financial Indebtedness
of the FSHC Group Covenant Companies amortised during that Testing
Period;
as an obligation of any FSHC Group Covenant Company during that period
and adjusted for amounts payable and receivable under Hedging Agreements
but excluding interest accruing on the Investor Loan Notes to the extent
not paid in cash and also excluding any interest which is paid in cash
which has accrued on any Existing Investor Loan Notes as at the date on
which they are redeemed in full in accordance with the terms of the
Senior Finance Documents and excluding interest accruing on the Term C
Facility to the extent not paid in cash but capitalised;
"FSHC INTEREST RECEIVABLE" means the amount of interest and amounts in
the nature of interest received or receivable by the FSHC Group Covenant
Companies during the relevant Testing Period which can be applied to
discharge the obligations of FSHC Group Covenant Companies in relation to
Total Debt Service without restriction and without breaching any law or
exchange control regulation and without incurring any Tax or other costs;
"FSHC NET INTEREST" means FSHC Interest Payable less FSHC Interest
Receivable during the relevant Testing Period;
"GROUP COMPANIES NET WORTH" means, at any time, the aggregate amount of:
(a) the issued and paid-up share capital of the Parent and Jersey
Holdco;
(b) plus the total amount standing to the credit of the consolidated
capital and revenue reserves of the Covenant Companies (including
any share premium account and capital redemption reserve);
(c) plus any balance standing to the credit, or minus any amount
standing to the debit, of the consolidated profit and loss
accounts of the Covenant Companies;
(d) plus the principal amount of the Investor Loan Notes and accrued
interest thereon,
but after (to the extent not already taken into account):
(i) deducting any amounts shown in respect of goodwill or other
intangible assets of the Covenant Companies;
(ii) excluding minority interests in Subsidiaries of the Parent or in
Subsidiaries of Jersey Holdco;
(iii) deducting an amount equal to any distribution by any Covenant
Company to persons outside the Covenant Companies out of the
profits earned before the date of the relevant balance sheet and
which has been declared, recommended or made since that date
(except to the extent it is already provided for in that balance
sheet);
-111-
(iv) deducting any capital accounts or reserves derived from any
writing-up of the book value of any assets of any Covenant Company
above historic cost less accumulated depreciation at any time on
or after the Unconditional Date;
(v) deducting any provision in relation to future or deferred Tax; and
(vi) making such adjustments as appropriate in respect of any variation
in the issued and paid up share capital, the share premium account
and the capital redemption reserve of the Parent and of Jersey
Holdco since the date of its latest consolidated balance sheet,
provided that no amount shall be included or excluded more than once;
"SECURITISATION INTEREST" means interest and amounts in the nature of
interest paid or payable by PHF Securities No. 1 in relation to the First
Securitisation and by PUK1 and PHF Securities No. 2 in relation to the
Second Securitisation;
"SECURITISATION INTEREST PAYABLE" means Securitisation Interest accrued,
whether or not paid, during the relevant Testing Period as an obligation
of the relevant member of the Securitisation Group;
"SEVERANCE COSTS" means all fees, costs and expenses incurred by the
Target Group Covenant Companies in relation to any redundancies which
occur as a result of the Offers;
"TARGET ADJUSTED EBITDA" means the consolidated profit of the Target
Group Covenant Companies for the relevant Testing Period:
(a) before any deduction of corporation tax or other Taxes on income
or gains;
(b) before any deduction for Target Interest Payable;
(c) after deducting (to the extent otherwise included) Target Interest
Receivable;
(d) after deducting Securitisation Interest Payable;
(e) excluding extraordinary items;
(f) excluding any Offer Costs or Severance Costs incurred by any of
the Target Group Covenant Companies, to the extent they are
treated as exceptional items, that are expensed on or prior to the
first anniversary of the Unconditional Date;
(g) after deducting (to the extent otherwise included) the amount of
profit (or adding back the amount of loss) of any Target Group
Covenant Company (other than UK Holdco and Jersey Holdco) which is
attributable to any third party (other than a Target Group
Covenant Company) which is a shareholder in that Target Group
Covenant Company;
(h) after adding back or deducting, as the case may be, the amount of
any loss or gain against book value arising on a disposal of any
asset (other than stock disposed of in the ordinary course of
trading) by a Target Group Covenant Company during that Testing
Period, to the extent included in arriving at Target Adjusted
EBITDA for that Testing Period;
(i) before deducting amortisation of any goodwill or any intangible
assets;
-112-
(j) before deducting any depreciation on fixed assets; and
(k) before amortisation of any Offer Costs incurred by US Bidco and/or
Jersey Bidco up to a maximum aggregate amount of (pound)6,000,000
and before amortisation of any Severance Costs up to a maximum
amount of (pound)3,800,000;
"TARGET CASHFLOW" means Target Adjusted EBITDA for the relevant Testing
Period:
(a) plus the amount of any decrease or minus the amount of any
increase in Working Capital during that Testing Period;
(b) plus any Tax rebate received in cash, or minus any Tax paid in
cash, in each case by a Target Group Covenant Company, during that
Testing Period;
(c) minus all Capital Expenditure (but excluding Approved
Acquisitions) incurred by a Target Group Covenant Company during
that Testing Period;
(d) plus the amount of any dividends or other profit distributions
(net of Tax) received in cash by any Target Group Covenant Company
during that Testing Period from companies which are not Target
Group Covenant Companies;
(e) minus all payments made by PHF Securities No. 1 during the
relevant Testing Period in respect of the First Securitisation to
the extent not already deducted in calculating Target Adjusted
EBITDA (other than payments of overriding lease rent to PHF
Reversions No.1 and any upstream loans or profit distributions by
PHF Securities No. 1 made to PHF Reversions No. 1 which comply
with the order of payments under the First Securitisation set out
in the First Securitisation Offering Circular) plus all amounts
received from operating tenants of leases which are subject to the
First Securitisation to the extent not already added in
calculating Target Adjusted EBITDA; and
(f) minus all payments by PUK1 and PHF Securities No.2 during the
relevant Testing Period in respect of the Second Securitisation to
the extent not already deducted in calculating Target Adjusted
EBITDA (other than payments of overriding lease rent to PHF
Reversions No.2 and payments into and out of the Borrower Free
Account which comply with the order of payments under the Second
Securitisation set out in the Second Securitisation Offering
Circular) plus all amounts received from operating tenants of
leases which are subject to the Second Securitisation to the
extent not already added in calculating Target Adjusted EBITDA;
"TARGET GROUP COVENANT COMPANIES" means UK Holdco and its Subsidiaries
from time to time and Jersey Holdco and its Subsidiaries from time to
time, but excluding the Australian Group;
"TARGET INTEREST" means interest and amounts in the nature of interest
paid or payable in relation to any Financial Indebtedness of the Target
Group Covenant Companies (other than Financial Indebtedness owed by one
Covenant Company to another Covenant Company) excluding Securitisation
Interest together with, to the extent that it is not Financial
Indebtedness of Target Group Covenant Companies, any Financial
Indebtedness under the Term A Facility, Term B Facility and the Revolving
Facility (but excluding any Financial Indebtedness under the Term C
Facility and the Cash Bridge Facility), including:
(a) the interest element of finance leases;
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(b) discount and acceptance fees payable (or deducted) in relation to
any Financial Indebtedness of the Target Group Covenant Companies;
(c) fees payable in connection with the issue or maintenance of any
bond, letter of credit, guarantee or other assurance against
financial loss which constitutes Financial Indebtedness of a
Target Group Covenant Company and is issued by a third party on
behalf of a Target Group Covenant Company to the extent such fees
have not be deducted in calculating Target Adjusted EBITDA;
(d) repayment and prepayment premiums payable or incurred in repaying
or prepaying any Financial Indebtedness of the Target Group
Covenant Companies together with, to the extent that it is not
Financial Indebtedness of Target Group Covenant Companies, any
Financial Indebtedness under the Term A Facility, Term B Facility
and the Revolving Facility (but excluding any Financial
Indebtedness under the Term C Facility and the Cash Bridge
Facility) other than any such premiums arising under clause 16.10
(Prepayment Fees) and any such premiums arising under any other
financing arrangements arranged by the Arranger with all or any of
the Covenant Companies; and
(e) commitment, utilisation and non-utilisation fees payable or
incurred in relation to Financial Indebtedness of the Target Group
Companies together with, to the extent that it is not Financial
Indebtedness of Target Group Covenant Companies, Financial
Indebtedness under the Term A Facility, Term B Facility and the
Revolving Facility (but excluding Financial Indebtedness under the
Term C Facility and the Cash Bridge Facility);
"TARGET INTEREST PAYABLE" means the total of:
(a) Target Interest accrued (whether or not paid or compounded and
accordingly added to principal) during the relevant Testing
Period; and
(b) the amount of the discount element of any Financial Indebtedness
of the Target Group Covenant Companies amortised during that
Testing Period;
as an obligation of any Target Group Covenant Company during that period
and adjusted for amounts payable and receivable under Hedging Agreements;
"TARGET INTEREST RECEIVABLE" means interest and amounts in the nature of
interest received or receivable by the Target Group Covenant Companies
during the relevant Testing Period which can be applied to discharge the
obligations of Target Group Covenant Companies in relation to Total Debt
Service without restriction and without breaching any law or exchange
control regulation and without incurring any Tax or other costs;
"TARGET NET INTEREST" means Target Interest Payable less Target Interest
Receivable during the relevant Testing Period;
"TARGET NET INTEREST CASH PAID" means Target Net Interest to the extent
it has been paid or received during the relevant Testing Period but
excluding any Target Interest that has been prepaid to the extent that
the scheduled payment date for that Target Interest did not fall within
the relevant Testing Period;
"TARGET TOTAL DEBT SERVICE" means the aggregate of:
(a) Target Net Interest Cash Paid for the relevant Testing Period; and
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(b) all scheduled repayments of principal under the terms of any
Financial Indebtedness of any Target Group Covenant Company
together with, to the extent that it is not Financial Indebtedness
of Target Group Covenant Companies, any Financial Indebtedness
under the Term A Facility, Term B Facility and the Revolving
Facility (but excluding any Financial Indebtedness between any
Target Group Covenant Company and any other Target Group Covenant
Company and excluding any Financial Indebtedness under the Term C
Facility and the Cash Bridge Facility) falling due during that
Testing Period:
(i) including all capital payments falling due in relation to
any finance leases and other Financial Indebtedness falling
within paragraph (g) of the definition of Financial
Indebtedness in clause 1.1 (Definitions);
(ii) excluding any repayment or prepayment of any overdraft or
revolving credit facility falling due during that period
and capable of being simultaneously redrawn under the terms
of the relevant facility; and
(iii) excluding any prepayment of the Facilities made in
accordance with clause 12 (Prepayment and Cancellation) to
the extent that the scheduled repayment date of any such
Financial Indebtedness did not fall within the relevant
Testing Period;
"TARGET TOTAL NET DEBT" means, at any time, the aggregate outstanding
principal or capital amount of all Financial Indebtedness of the Target
Group Covenant Companies together with, to the extent that it is not
Financial Indebtedness of Target Group Covenant Companies, any Financial
Indebtedness under the Term A Facility, Term B Facility and the Revolving
Facility (but excluding any Financial Indebtedness under the Term C
Facility and the Cash Bridge Facility) calculated on a consolidated
basis, less Cash and Cash Equivalents owned by Target Group Covenant
Companies and FSHC Holdco which can be applied to discharge the
obligations of Target Group Covenant Companies in relation to Total Debt
Service without restriction and without breaching any law or exchange
control regulation and without incurring any Tax or other costs and which
is or are held in an account of a Lender and/or which is or are charged
in favour of the Security Agent pursuant to a Security Document, except
that:
(a) in the case of any finance lease only the capitalised value of
that finance lease (as determined in accordance with the Approved
Accounting Principles) shall be included;
(b) in the case of any guarantee referred to in the definition of
Financial Indebtedness in clause 1.1 (Definitions), the amount of
that guarantee shall not be included, to the extent it relates to
indebtedness of another Target Group Covenant Company already
included in the calculation of Target Total Net Debt; and
(c) Financial Indebtedness arising under the Securitisations shall not
be included;
"TESTING DATE" means the date specified in the relevant table as the date
as at (or to) which a particular financial ratio is being tested;
"TESTING PERIOD" means subject to clause 20.17(a) (Calculation
Adjustments) each period which corresponds to the annual accounting
reference period of the Parent and of Jersey Holdco or four consecutive
Accounting Quarters and ending on or about a Testing Date;
"TOTAL DEBT SERVICE" means the aggregate of:
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(a) Target Net Interest plus FSHC Net Interest plus Securitisation
Interest Payable for the relevant Testing Period; and
(b) all scheduled repayments of principal under the terms of any
Financial Indebtedness of any Covenant Company (excluding any
Financial Indebtedness between any Covenant Company and any other
Covenant Company) falling due during that Testing Period:
(i) including all capital payments falling due in relation to
any finance leases and other Financial Indebtedness falling
within paragraph (g) of the definition of Financial
Indebtedness in clause 1.1 (Definitions); and
(ii) excluding any repayment or prepayment of any overdraft or
revolving credit facility falling due during that period
and capable of being simultaneously redrawn under the terms
of the relevant facility;
"WORKING CAPITAL" means trade and other debtors in relation to operating
items of any Target Group Covenant Company, plus prepayments and stock,
less trade and other creditors in relation to operating items of any
Target Group Covenant Company and less accrued expenses (including, for
the avoidance of doubt, accrued Securitisation Interest) and accrued
costs of any Target Group Covenant Company.
20.16 CALCULATION
(a) The covenants contained in clause 20.14 (Financial Covenants) will
be tested by reference to the FSHC Quarterly Accounts and the PHFL
Quarterly Accounts for the relevant Accounting Quarters, unless
any of the Annual Accounts for all or any part of the relevant
period are available on the relevant date on which any such
covenant is tested, in which case those Annual Accounts shall be
used instead.
(b) If any of the Annual Accounts are not available when any covenant
referred to in clause 20.14(a) is tested, but when those Annual
Accounts become available, they show that the figures in any
relevant FSHC Quarterly Accounts or PHFL Quarterly Accounts
utilised for any such calculation cannot have been substantially
accurate, the Facility Agent may require such adjustments to the
calculations which it, in its sole discretion, considers
appropriate to rectify that inaccuracy and compliance with the
covenants in clause 20.14 (Financial Covenants) will be determined
by reference to those adjusted figures provided always that any
adjustment which indicates compliance with any covenant which had
been breached when tested by reference to the relevant inaccurate
figures will not have the effect of nullifying, waiving or
otherwise curing that breach.
(c) The components of each definition used in clause 20.14 (Financial
Covenants) will be calculated in accordance with the Approved
Accounting Principles, as varied by this agreement.
(d) If the Facility Agent considers the covenant contained in clause
20.14(a) (Debt to Earnings) may have been breached, it may require
such covenant to be tested by reference to the latest available
Monthly Accounts for the relevant Management Accounting Period.
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20.17 CALCULATION ADJUSTMENTS
For the purpose of determining compliance with the covenants in clauses
20.14(a) (Debt to Earnings), 20.14(b) (Target Interest Cover), 20.14(c)
(FSHC Interest Cover) and 20.14(d) (Target Cashflow):
(a) the first 3 Testing Periods will
(i) in the case of clause 20.14(a) (Debt to Earnings) will
commence on the Unconditional Date and the figures for
Target EBITDA will be annualised on a 365 day basis (such
that, by way of example, Target EBITDA for a period of 270
days will be annualised by multiplying the Target EBITDA by
365 and dividing the product by 270); and
(ii) in the case of clauses 20.14(b) (Target Interest Cover),
20.14(c) (FSHC Interest Cover) and 20.14(d) (Target
Cashflow) commence on the Unconditional Date.
(b) if any of the Covenant Companies acquires a company or companies
(having obtained any necessary consent under this agreement to do
so), until the first Testing Date which falls more than 12 months
after the relevant company or companies became Subsidiaries of the
Parent or of Jersey Holdco, the results of such company or
companies will be deemed included with those of the rest of the
Covenant Companies for the full duration of the relevant Testing
Period as if such company or companies had become a Covenant
Company at the commencement of the Testing Period. Any necessary
aggregation of their results will be confirmed by the Auditors and
will not include any synergy benefits expected to be achieved as a
result of the acquisition of such company or companies.
21. EVENTS OF DEFAULT
21.1 LIST OF EVENTS
Each of the events set out in this clause 21.1 constitutes an Event of
Default, whether or not the occurrence of the event concerned is outside
the control of any Group Company or Excluded Company, as the case may be.
(a) PAYMENT DEFAULT
Any Obligor fails to pay on the due date any amount payable by it
under any Senior Finance Document at the place at which and in the
currency in which it is expressed to be payable, unless the
Facility Agent is satisfied that non-payment is due solely to
administrative or technical delays in the transmission of funds
and payment is made within three Business Days of its due date.
(b) BREACH OF OTHER OBLIGATIONS
(i) Any Obligor fails to comply with any of its obligations
under clauses 20.3 (Disposals and Security Undertakings) to
20.5 (Financing arrangement undertakings) (inclusive),
sub-clauses (a), (b), (f), (g) or (h) of clause 20.11
(Offer Undertakings), clause 20.12 (US Offer Undertakings)
or clause 20.14 (Financial covenants).
(ii) Any Obligor fails to comply with any of its obligations
under any Senior Finance Document, other than those
specified in clause 21.1(a) (Payment default) or clause
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21.1(b)(i) and, if that failure is capable of
remedy, it is not remedied within 10 Business Days
of the earlier of:
(A) the Facility Agent notifying the Parent of
that default; and
(B) that Obligor becoming aware of the relevant
matter.
(c) MISREPRESENTATION
Any representation, warranty or statement which is made by any
Obligor in any Senior Finance Document or is contained in any
certificate, statement or notice provided under or in connection
with any Senior Finance Document is incorrect in any respect when
made (or when deemed to be made or repeated) and, if the
circumstances giving rise to that default are in the opinion of
the Facility Agent capable of remedy, they are not remedied within
10 Business Days of the earlier of:
(i) the Facility Agent notifying the Parent of that default;
and
(ii) that Obligor becoming aware of the relevant matter.
(d) FAILURE TO CONSUMMATE US MERGER
The First US Merger is not consummated in accordance with the
Merger Agreement, Articles of Merger or Certificate of Merger
within 120 days of the Unconditional Date, or the First US Merger
is unwound, reversed or otherwise rescinded in whole or in part
for any reason.
(e) INVALIDITY AND UNLAWFULNESS
(i) Any provision of any Senior Finance Document is or becomes
invalid or unenforceable for any reason or is repudiated or
the validity or enforceability of any provision of any
Senior Finance Document is contested by any person (other
than a Finance Party) or any party to any Senior Finance
Document other than a Finance Party denies the existence of
any liability or obligation on its part under any Senior
Finance Document.
(ii) It is or becomes unlawful under any applicable jurisdiction
for any Obligor to perform any of its obligations under any
Senior Finance Document in circumstances or to an extent
which could reasonably be expected to have a Material
Adverse Effect.
(iii) Any act, condition or thing required to be done, fulfilled
or performed in order to:
(A) enable any Obligor lawfully to enter into, exercise
its rights under and perform the obligations
expressed to be assumed by it under any Senior
Finance Document to which it is party;
(B) ensure that the obligations expressed to be assumed
by any Obligor under any Senior Finance Document to
which it is party are legal, valid and binding;
(C) make each Senior Finance Document admissible in
evidence in the courts of England; and
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(D) create the security constituted by the Security
Documents to which any Obligor is party,
is not done, fulfilled or performed.
(f) INSOLVENCY
Other than in the case of US LLC and US Bidco pursuant to and in
accordance with the KPMG Structure Paper:
(i) any Material Subsidiary or Material Excluded Company stops
or suspends or threatens, or announces an intention to stop
or suspend, payment of its debts; or
(ii) any Material Subsidiary or Material Excluded Company is,
for the purpose of section 123(1) of the Insolvency Act
1986 (on the basis that the words "proved to the
satisfaction of the court" are deemed omitted from sections
123(1)(e) of that Act) or any other applicable law, deemed
to be unable, or admits its inability, to pay its debts as
they fall due or becomes insolvent or a moratorium is
declared in relation to any indebtedness of any Material
Subsidiary or Material Excluded Company.
(g) RECEIVERSHIP AND ADMINISTRATION
(i) Any encumbrancer takes possession of, or a receiver or
administrator or similar officer is appointed over or in
relation to, all or any part of the assets of any Material
Subsidiary or Material Excluded Company.
(ii) A petition is presented, a meeting is convened, an
application is made or any other step is taken for the
purpose of appointing an administrator or receiver or other
similar officer of, or for the making of an administration
order in relation to any Material Subsidiary or Material
Excluded Company and:
(A) (other than in the case of a petition to appoint an
administrator) such petition or application is not
discharged within 10 days; or
(B) in the case of a petition to appoint an
administrator, the Facility Agent is not satisfied
that it will be discharged before it is heard.
(h) COMPOSITIONS AND ARRANGEMENTS
(i) Any Material Subsidiary or Material Excluded Company
convenes a meeting of its creditors generally or proposes
or makes any arrangement or composition with, or any
assignment for the benefit of, its creditors generally.
(ii) Any Material Subsidiary or Material Excluded Company
proposes or enters into any negotiations for or in
connection with the rescheduling, restructuring or
re-adjustment of any Financial Indebtedness by reason of,
or with a view to avoiding, financial difficulties.
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(i) WINDING UP
Other than in the case of US LLC and US Bidco pursuant to and in
accordance with the KPMG Structure Paper:
(i) any meeting of a Material Subsidiary or Material Excluded
Company is convened for the purpose of considering any
resolution for (or to petition for) its winding up or any
Material Subsidiary or Material Excluded Company passes
such a resolution; or
(ii) a petition is presented for the winding up of a Material
Subsidiary or Material Excluded Company (other than a
frivolous or vexatious petition discharged within 10 days
of being presented) or an order is made for the winding up
of any Material Subsidiary or Material Excluded Company.
(j) US BANKRUPTCY PROCEEDINGS
Without limiting any of the other clauses of this clause 21.1:
(i) a court of the United States of America or any state
thereof (a "US Federal or State Court") having jurisdiction
in the premises shall enter a decree or order for relief in
respect of any Material Subsidiary or Material Excluded
Company in an involuntary case under the US Bankruptcy Code
or under any other applicable bankruptcy, insolvency or
similar law of the United States of America or any state
thereof now or hereafter in effect, which decree or order
is not stated; or any other similar relief shall be granted
under any applicable US federal or state law;
(ii) an involuntary case shall be commenced against any Material
Subsidiary or Material Excluded Company under the US
Bankruptcy Code or under any other applicable bankruptcy,
insolvency or similar law of the United States of America
or any state thereof now or hereafter in effect; or a
decree or order of a US Federal or State Court having
jurisdiction in the premises for the appointment of a
receiver, liquidator, sequestrator, trustee, custodian or
other officer having similar powers over any Material
Subsidiary or Material Excluded Company, or over all or a
substantial part of its property, shall have been entered;
and in any such event described in this paragraph (ii)
shall continue for 60 days unless dismissed, bonded or
discharged; or
(iii) Any Material Subsidiary or Material Excluded Company shall
have an order for relief entered with respect to it or
commence a voluntary case under the US Bankruptcy Code or
under any other applicable bankruptcy, insolvency or
similar law of the United States of America or any state
thereof now or hereafter in effect, or shall consent to the
entry of an order for relieve in an involuntary case, or to
the conversion of an involuntary case to a voluntary case,
under any such law.
(k) ATTACHMENT OR PROCESS
A creditor attaches or takes possession of, or a distress,
execution, sequestration or other process is levied or enforced
upon or sued out against all or any part of the assets of any
Material Subsidiary or Material Excluded Company and such process
is not discharged within 10 Business Days.
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(l) SUSPENSION OF PAYMENTS
Any order is made, any resolution is passed or any other action is
taken for the suspension of payments, protection from creditors or
bankruptcy of any Material Subsidiary or Material Excluded
Company.
(m) SIMILAR EVENTS ELSEWHERE
There occurs in relation to any Material Subsidiary or Material
Excluded Company or any of its assets in any country or territory
in which it is incorporated or carries on business or to the
jurisdiction of whose courts it or any of its assets is subject
any event which appears to the Facility Agent (acting reasonably)
to correspond in that country or territory with any of those
mentioned in clauses 21.1(f) (Insolvency) to 21.1(l) (Suspension
of payments) (inclusive).
(n) CESSATION OF BUSINESS
Any Material Subsidiary ceases, or threatens or proposes to cease,
to carry on all or a substantial part of its business other than
the merger of US Bidco with and into US Target pursuant to the
terms of the First US Merger or as contemplated in the KMPG
Structure Paper.
(o) COMPULSORY ACQUISITION
All or any part of the assets of any Material Subsidiary are
seized, nationalised, expropriated or compulsorily acquired by, or
by the order of, any central or local governmental authority in a
way which, in the reasonable opinion of the Majority Lenders, is
reasonably likely to lead to a Material Adverse Effect.
(p) SECURITY INTERESTS
Any Security Interest affecting the business, undertaking or any
of the assets of a Material Subsidiary or a Material Excluded
Company and securing indebtedness exceeding (pound)50,000 (or its
equivalent in other currencies) in aggregate (other than
indebtedness pursuant to the Standstill Loans for so long as the
Standstill Agreements remain in full force and effect and are
being complied with by all parties thereto) becomes enforceable,
whether or not steps are taken to enforce the same.
(q) CROSS DEFAULT
Any Financial Indebtedness of any Material Subsidiary or a
Material Excluded Company (other than pursuant to the Standstill
Loans for so long as the Standstill Agreements remain in full
force and effect and are being complied with by all parties
thereto) exceeding (pound)50,000 (or its equivalent in other
currencies) in aggregate:
(i) is not paid when due or within any originally applicable
grace period in any agreement relating to that Financial
Indebtedness; or
(ii) becomes due and payable (or capable of being declared due
and payable) before its normal maturity or is placed on
demand (or any commitment for any such indebtedness is
cancelled or suspended) by reason of a default or event of
default (however described).
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(r) LITIGATION
Any litigation, arbitration or administrative proceeding is
commenced by or against any Obligor or Material Subsidiary which
is reasonably likely to be adversely determined against the
relevant Group Company and if so resolved could reasonably be
expected to have a Material Adverse Effect.
(s) INTERCREDITOR BREACH
Any party to the Intercreditor Deed (other than any of the Finance
Parties) fails to comply with its obligations under the
Intercreditor Deed or the Intercreditor Deed ceases to be binding
upon any such party for whatever reason.
(t) REGULATORY PROCEEDINGS
Any regulatory or other proceedings are instigated by any
competition or similar authority (including The Office of Fair
Trading, the Competition Commission, The Department of Trade and
Industry, the European Commission or the US Federal Trade
Commission) as a result of the Transaction Documents having been
entered into or implemented and the same has, or is reasonably
likely to have, a Material Adverse Effect.
(u) AUDITORS' QUALIFICATION
The Auditors qualify their report on any Annual Accounts in any
manner which, in the reasonable opinion of the Majority Lenders,
is material and adverse in the context of the Senior Finance
Documents.
(v) KEY EXECUTIVE
The Key Executive:
(i) ceases to be a full-time employee and director of the
Parent devoting the time and attention to the affairs of
the Group required by the terms of the applicable service
contract;
(ii) dies; or
(iii) becomes unable (for whatever reason) adequately to carry
out the functions required to be performed by that Key
Executive by the terms of the applicable service contract,
and in any such event a replacement for the Key Executive has not
been appointed (following consultation with the Lenders) within
six months of such event or, having been so appointed within six
months, has not taken up employment within six months of
appointment but no later than nine months from the date of such
event (or such other period as may be agreed with the Majority
Lenders (acting reasonably)).
(w) ERISA
The occurrence of one or more of the following events which would
individually or in the aggregate have a Material Adverse Effect:
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(i) a Reportable Event;
(ii) any Plan has Unfunded Liabilities; or
(iii) a Group Company or any ERISA Affiliate shall have incurred
or is reasonably expected to incur any liability pursuant
to Title I or IV of ERISA or the penalty or excise tax
provisions of the IR Code relating to employee benefit
plans as defined in Section 3 of ERISA.
(x) MATERIAL ADVERSE CHANGE
At any time there occurs any event or omission which has a
Material Adverse Effect.
21.2 CANCELLATION AND REPAYMENT
At any time after the occurrence of an Event of Default which is
continuing, the Facility Agent may, and will if so directed by the
Majority Lenders, by notice to the Parent do all or any of the following,
in addition and without prejudice to any other rights or remedies which
it or any other Finance Party may have under any other Senior Finance
Document:
(a) terminate the availability of the Facilities, whereupon the
Facilities shall cease to be available for drawing, the undrawn
portion of the Commitments of each of the Lenders shall be
cancelled and no Lender shall be under any further obligation to
make Advances or issue Bank Guarantees; and/or
(b) declare all or any Advances, accrued interest on those Advances
and any other amounts then payable under any Senior Finance
Document to be immediately due and payable, whereupon those
amounts shall become so due and payable; and/or
(c) declare all or any Advances to be payable on demand, whereupon
those Advances shall become payable on demand; and/or
(d) require the provision of cash cover in relation to all or any
outstanding Contingent Liabilities, whereupon each Borrower shall
immediately provide cash cover in an amount equal to the total
Contingent Liability of the Lenders under all Bank Guarantees
issued for the account of that Borrower.
21.3 CLEAN UP PERIOD
If during the Clean Up Period a matter or circumstance exists in respect
of the Jersey Target or the US Target and/or any of its subsidiaries
which would constitute a breach of a representation or warranty made in
clause 19 (Representations and Warranties) or a breach of any covenant
set out in clause 20 (Undertakings) or a Default, such matter or
circumstance will not constitute a Default provided that reasonable steps
(in the opinion of the Facility Agent) are being taken to cure such
matter or circumstance unless such matter or circumstance (1) in the
reasonable opinion of the Majority Banks, is reasonably likely to have a
Material Adverse Effect, or (2) has been procured by, or approved by,
Jersey Bidco or US Bidco, as the case may be, or (3) has not been cured
by the expiry of the Clean Up Period.
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22. THE AGENTS AND THE OTHER FINANCE PARTIES
22.1 AGENTS' APPOINTMENT
(a) Each Lender:
(i) appoints Barclays Bank PLC as Facility Agent to act as its
agent under and in connection with the Senior Finance
Documents and as Security Agent to act as its security
agent for the purposes of the Security Documents; and
(ii) irrevocably authorises each Agent for and on its behalf to
exercise the rights, powers and discretions which are
specifically delegated to it by the terms of the Senior
Finance Documents, together with all rights, powers and
discretions which are incidental thereto and to give a good
discharge for any monies payable under the Senior Finance
Documents.
(b) Each Agent will act solely as agent for the Lenders in carrying
out its functions as agent under the Senior Finance Documents and
will exercise the same care as it would in dealing with a credit
for its own account.
(c) The relationship between the Lenders and each Agent is that of
principal and agent only. No Agent shall have, nor be deemed to
have, assumed any obligations to, or trust or fiduciary
relationship with, the other Finance Parties or any Obligor, other
than those for which specific provision is made by the Senior
Finance Documents.
22.2 AGENTS' DUTIES
Each Agent shall:
(a) send to each Lender details of each communication delivered to the
Agent by an Obligor for that Lender under any Senior Finance
Document as soon as reasonably practicable after receipt;
(b) subject to those provisions of this agreement which require the
consent of all the Lenders, act in accordance with any
instructions from the Majority Lenders or, if so instructed by the
Majority Lenders, refrain from exercising a right, power or
discretion vested in it under any Senior Finance Document;
(c) have only those duties, obligations and responsibilities expressly
specified in the Senior Finance Documents; and
(d) without prejudice to clause 22.6(c) (Communications and
information), promptly notify each Lender:
(i) of any Default which occurs under clause 21.1(a) (Payment
default); and
(ii) if the Agent receives notice from an Obligor referring to
this agreement, describing a Default and stating that the
circumstance described is a Default.
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22.3 AGENTS' RIGHTS
Each Agent may:
(a) perform any of its duties, obligations and responsibilities under
the Senior Finance Documents by or through its personnel,
delegates or agents (on the basis that each Agent may extend the
benefit of any indemnity received by it under this agreement to
its personnel, delegates or agents);
(b) except as expressly provided to the contrary in any Senior Finance
Document, refrain from exercising any right, power or discretion
vested in it under the Senior Finance Documents until it has
received instructions from the Majority Lenders or, where
relevant, all the Lenders;
(c) unless it has received notice to the contrary, treat the Lender
which makes available any portion of a Drawing as the person
entitled to repayment of that portion;
(d) refrain from doing anything which would or might in its opinion be
contrary to any law, regulation or judgment of any court of any
jurisdiction or otherwise render it liable to any person and may
do anything which is in its opinion necessary to comply with any
such law, regulation or judgment;
(e) assume that no Default has occurred, unless an officer of that
Agent while active on the account of the Parent acquires actual
knowledge to the contrary;
(f) refrain from taking any step (or further step) to protect or
enforce the rights of any Lender under any Senior Finance Document
until it has been indemnified and/or secured to its satisfaction
against all losses, (including legal fees) which it would or might
sustain or incur as a result;
(g) rely on any communication or document believed by it to be genuine
and correct and to have been communicated or signed by the person
to whom it purports to be communicated or by whom it purports to
be signed;
(h) rely as to any matter of fact which might reasonably be expected
to be within the knowledge of any Group Company in a statement by
or on behalf of that Group Company;
(i) obtain and pay for any legal or other expert advice or services
which may seem necessary or desirable to it and rely on any such
advice;
(j) accept without enquiry any title which an Obligor may have to any
asset intended to be the subject of the security created by the
Security Documents; and
(k) hold or deposit any title deeds, Security Documents or any other
documents in connection with any of the assets charged by the
Security Documents with any banker or banking company or any
company whose business includes undertaking the safe custody of
deeds or documents or with any lawyer or firm of lawyers and it
shall not be responsible for or be required to insure against any
loss incurred in connection with any such holding or deposit and
it may pay all amounts required to be paid on account or in
relation to any such deposit.
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22.4 EXONERATION OF THE ARRANGER AND THE AGENTS
None of the Arranger, the Agents or any of their respective personnel or
agents shall be:
(a) responsible for the adequacy, accuracy or completeness of any
representation, warranty, statement or information in the
Syndication Memorandum, any Senior Finance Document or any notice
or other document delivered under any Senior Finance Document;
(b) responsible for the execution, delivery, validity, legality,
adequacy, enforceability or admissibility in evidence of any
Senior Finance Document;
(c) obliged to enquire as to the occurrence or continuation of a
Default or as to the accuracy or completeness of any
representation or warranty made by any Obligor under any Senior
Finance Document;
(d) responsible for any failure of any Obligor or any of the Lenders
duly and punctually to observe and perform their respective
obligations under any Senior Finance Document;
(e) responsible for the consequences of relying on the advice of any
professional advisers selected by any of them in connection with
any Senior Finance Document;
(f) liable for acting (or refraining from acting) in what it believes
to be in the best interests of the Lenders in circumstances where
it has been unable, or it is not practicable, to obtain the
instructions of the Lenders or the Majority Lenders (as the case
may be); or
(g) liable for anything done or not done by it under or in connection
with any Senior Finance Document, save in the case of its own
gross negligence or wilful misconduct.
22.5 THE ARRANGER AND THE AGENTS INDIVIDUALLY
(a) If it is a Lender, each of the Arranger and the Agents shall have
the same rights and powers under the Senior Finance Documents as
any other Lender and may exercise those rights and powers as if it
were not also acting as the Arranger or an Agent.
(b) Each of the Arranger and the Agents may:
(i) retain for its own benefit and without liability to account
any fee or other amount receivable by it for its own
account; and
(ii) accept deposits from, lend money to, provide any advisory,
trust or other services to or engage in any kind of banking
or other business with any party to this agreement or any
subsidiary of any party (and, in each case, may do so
without liability to account).
(c) Each Lender shall supply the Facility Agent with any information
required by the Facility Agent in order to calculate the Mandatory
Cost in accordance with Schedule 8 (Mandatory Cost Formulae).
22.6 COMMUNICATIONS AND INFORMATION
(a) All communications to an Obligor in connection with the Senior
Finance Documents are to be made by or through the Facility Agent.
Each Finance Party will notify the Facility Agent of,
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and provide the Facility Agent with a copy of, any communication
between that Finance Party, an Obligor or any other Finance Party
on any matter concerning the Facilities or the Senior Finance
Documents.
(b) No Agent will be obliged to transmit to any other Finance Party
any information relating to any party to any Senior Finance
Document which that Agent may have acquired otherwise than in
connection with the Facilities or the Senior Finance Documents.
Notwithstanding anything to the contrary expressed or implied in
any Senior Finance Document, no Agent shall, as between itself and
the other Finance Parties, be bound to disclose to any other
Finance Party or other person any information, disclosure of which
might in the opinion of that Agent result in a breach of any law
or regulation or be otherwise actionable at the suit of any
person.
(c) In acting as agent for the Lenders, each Agent's banking division
will be treated as a separate entity from any other of its
divisions (or similar unit of that Agent in any subsequent
re-organisation) or subsidiaries (the "OTHER DIVISIONS") and, if
the relevant Agent acts for any Group Company in a corporate
finance or other advisory capacity ("ADVISORY CAPACITY"), any
information given by any Group Company to one of the Other
Divisions is to be treated as confidential and will not be
available to the Finance Parties without the consent of the
Parent, except that:
(i) the consent of the Parent will not be required in relation
to any information which the relevant Agent in its
discretion determines relates to a Default or in relation
to which the Lenders have given a confidentiality
undertaking in a form satisfactory to that Agent and the
relevant Group Company (acting reasonably); and
(ii) if representatives or employees of the relevant Agent
receive information in relation to a Default whilst acting
in an Advisory Capacity, they will not be obliged to
disclose that information to representatives or employees
of that Agent in their capacity as agent bank or security
agent under this agreement or to any Lender, if to do so
would breach any rule or regulation or fiduciary duty
imposed upon those persons.
22.7 NON-RELIANCE ON THE ARRANGER AND THE AGENTS
Each Lender confirms that it is (and will at all times continue to be)
solely responsible for making its own independent investigation and
appraisal of the business, operations, financial condition,
creditworthiness, status and affairs of each Group Company and has not
relied, and will not at any time rely, on the Arranger or any Agent:
(a) to provide it with any information relating to the business,
operations, financial condition, creditworthiness, status and
affairs of any Group Company, whether coming into its possession
before or after the making of any Advance, except as specifically
provided otherwise in this agreement; or
(b) to check or enquire into the adequacy, accuracy or completeness of
any information provided by any Group Company under or in
connection with any Senior Finance Document (whether or not that
information has been or is at any time circulated to it by the
Arranger or an Agent), including that contained in the Syndication
Memorandum; or
(c) to assess or keep under review the business, operations, financial
condition, creditworthiness, status or affairs of any Group
Company.
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22.8 AGENTS' INDEMNITY
(a) Each Lender shall on demand indemnify each Agent (in proportion to
that Lender's participation in the Drawings (or the Total
Commitments if there are no Drawings outstanding) at the relevant
time) against any loss incurred by the relevant Agent in complying
with any instructions from the Lenders or the Majority Lenders (as
the case may be) or otherwise sustained or incurred in connection
with the Senior Finance Documents or its duties, obligations and
responsibilities under the Senior Finance Documents, except to the
extent that it is incurred as a result of the gross negligence or
wilful misconduct of the relevant Agent or any of its personnel.
(b) The provisions of clause 22.8(a) are without prejudice to any
obligations of the Obligors to indemnify the Agents under the
Senior Finance Documents.
22.9 TERMINATION AND RESIGNATION OF AGENCY
(a) An Agent (a "RETIRING AGENT") may resign its appointment at any
time by giving notice to the Lenders and the Parent.
(b) A successor Agent (a "SUCCESSOR AGENT") shall be selected:
(i) by the Retiring Agent nominating one of its Affiliates
following consultation with the Parent as Successor Agent
in its notice of resignation; or
(ii) if the Retiring Agent makes no such nomination, by the
Majority Lenders nominating a Lender acting through an
office in the United Kingdom as Successor Agent (following
consultation with the Parent); or
(iii) if the Majority Lenders have failed to nominate a Successor
Agent within 30 days of the date of the Retiring Agent's
notice of resignation, by the Retiring Agent and the Parent
by mutual agreement nominating a financial institution of
good standing acting through an office in the United
Kingdom to be the Successor Agent.
(c) The Majority Lenders may at any time with the prior written
consent of the Parent, such consent not to be unreasonably
withheld or delayed, by 30 days' prior notice to the relevant
Agent and the Parent terminate the appointment of an Agent and
appoint a Successor Agent.
(d) The resignation of the Retiring Agent and the appointment of the
Successor Agent will become effective only upon the Successor
Agent accepting its appointment as Agent (and, in the case of the
Security Agent's resignation, upon the execution of all deeds and
documents necessary to substitute its successor as holder of the
security comprised in the Security Documents), at which time:
(i) the Successor Agent will become bound by all the
obligations of the Facility Agent Security Agent (as the
case may be) and become entitled to all the rights,
privileges, powers, authorities and discretions of such
Agent under the Senior Finance Documents;
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(ii) the agency of the Retiring Agent will terminate (but
without prejudice to any liabilities which the Retiring
Agent may have incurred prior to the termination of its
agency); and
(iii) the Retiring Agent will be discharged from any further
liability or obligation under or in connection with the
Senior Finance Documents (except that the Retiring Agent
shall pay to the Successor Agent a pro rata proportion of
the agency fee referred to in clause 16.2 (Agency fee) for
the 12 month period in relation to which that agency fee
was most recently paid).
(e) The Retiring Agent will co-operate with the Successor Agent in
order to ensure that its functions are transferred to the
Successor Agent without disruption to the service provided to the
Parent and the Lenders and will as soon as practicable following
the Successor Agent's appointment, make available to the Successor
Agent the documents and records which have been maintained in
connection with the Senior Finance Documents in order that the
Successor Agent is able to discharge its functions.
(f) The provisions of this agreement will continue in effect for the
benefit of any Retiring Agent in relation to any actions taken or
omitted to be taken by it or any event occurring before the
termination of its agency.
22.10 ROLE OF THE SECURITY AGENT
The Security Agent shall hold the benefit of the Security Documents on
trust for itself and the other Finance Parties and will apply all
payments and other benefits received by it under the Security Documents
in accordance with the provisions of the Intercreditor Deed.
22.11 PAYMENTS TO FINANCE PARTIES
(a) Each Agent will account to each other Finance Party for its due
proportions of all amounts received by that Agent for that Finance
Party, whether by way of repayment of principal or payment of
interest, commitment commission, fees or otherwise.
(b) Each Agent may retain for its own use and benefit, and will not be
liable to account to any other Finance Party for all or any part
of, any amounts received by way of agency or arrangement fee or by
way of reimbursement of expenses incurred by it.
22.12 LENDER TAX STATUS
Each Lender will notify each Agent on the date it becomes a party to this
agreement, whether or not it is:
(a) either (i) not resident in the United Kingdom for United Kingdom
Tax purposes, or (ii) a bank as defined in section 840A of the
Income and Corporation Taxes Act 1988 and resident in the United
Kingdom; and
(b) beneficially entitled to the principal and interest payable by the
Facility Agent to it under this agreement.
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22.13 CHANGE OF OFFICE OF AGENT
An Agent may at any time in its sole discretion by notice to the Parent
and each other Finance Party designate a different office in the United
Kingdom from which its duties as the relevant Agent will be performed
from the date of notification.
23. PRO RATA PAYMENTS
23.1 RECOVERIES
If any amount owing by any Obligor under any Senior Finance Document to a
Lender (the "RECOVERING LENDER") is discharged by payment, set-off or any
other manner other than through the Facility Agent in accordance with
clause 13 (Payments) (that amount being referred to in this clause 23.1
as a "Recovery") then:
(a) within two Business Days of receipt of the Recovery, the
Recovering Lender shall pay to the Facility Agent an amount equal
(or equivalent) to that Recovery;
(b) the Facility Agent shall treat that payment as if it was part of
the payment to be made by the relevant Obligor to the Lenders
rateably in accordance with their respective Commitments; and
(c) (except for any receipt by the Recovering Lender as a result of
the operation of clause 23.1(b)) as between the relevant Obligor
and the Recovering Lender, the Recovery shall be treated as not
having been paid.
23.2 NOTIFICATION OF RECOVERY
Each Lender will notify the Facility Agent as soon as reasonably
practicable of any Recovery by that Lender, other than by payment through
the Facility Agent. If any Recovery subsequently has to be wholly or
partly refunded by the Recovering Lender which paid an amount equal to
that Recovery to the Facility Agent under clause 23.1(a) (Recoveries),
each Lender to which any part of that amount was distributed will, on
request from the Recovering Lender, repay to the Recovering Lender that
Lender's pro rata share of the amount which has to be refunded by the
Recovering Lender.
23.3 INFORMATION
Each Lender will on request supply to the Facility Agent any information
which the Facility Agent may from time to time request for the purpose of
this clause 23.
23.4 EXCEPTIONS TO SHARING OF RECOVERIES
Notwithstanding the foregoing provisions of this clause 30.1, no
Recovering Lender will be obliged to share any Recovery which it receives
as a result of legal proceedings taken by it to recover any amounts owing
to it under the Senior Finance Documents with any other party which has a
legal right to, but does not, either join in those proceedings or
commence and diligently pursue separate proceedings to enforce its rights
in the same or another court (unless the proceedings instituted by the
Recovering Lender are instituted by it without prior notice having been
given to that other party through the Facility Agent).
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23.5 SEVERAL OBLIGATIONS
Failure by any Recovering Lender to comply with any of the provisions of
this clause 23 will not release any other Recovering Lender from any of
its obligations or liabilities under this clause 23.
23.6 OBTAINING CONSENTS
Each party to this agreement shall take all steps required of it under
clause 23.1 (Recoveries) and use its reasonable endeavours to obtain any
consents or authorisations which may be required in relation to any
payment to be made by it under this clause 23.
23.7 NO SECURITY
The provisions of this clause 23 shall not, and shall not be construed so
as to, constitute a charge by any Lender over all or any part of any
amount received or recovered by it under any of the circumstances
mentioned in this clause 23.
23.8 ANCILLARY AND HEDGING LENDERS
This clause 23 shall not apply to any Recovery by a Lender in its
capacity as an Ancillary Lender or by a Lender in its capacity as a
Hedging Lender.
24. SET-OFF
24.1 SET-OFF RIGHTS
Any Finance Party may at any time (upon notice to the relevant Obligor):
(a) set-off or otherwise apply amounts standing to the credit of any
Obligor's accounts with that Finance Party (irrespective of the
terms applicable to those accounts and whether or not those
amounts are then due for repayment to that Obligor); and
(b) set-off any other obligations (whether or not then due for
performance) owed by that Finance Party to the relevant Obligor,
against any matured liability (or after an Event of Default has occurred
which is continuing, against any liability) of the relevant Obligor to
the relevant Finance Party under the Senior Finance Documents.
24.2 DIFFERENT CURRENCIES
A Finance Party may exercise its rights under clause 24.1 (Set-off
rights) notwithstanding that the amounts concerned may be expressed in
different currencies and each Finance Party is authorised to effect any
necessary conversions at a market rate of exchange selected by it.
24.3 UNLIQUIDATED CLAIMS
If the relevant obligation or liability is unliquidated or unascertained,
the Finance Party may set-off the amount which it estimates (in good
faith) will be the final amount of that obligation or liability once it
becomes liquidated or ascertained.
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25. NOTICES
25.1 MODE OF SERVICE
(a) Except as specifically provided otherwise in this agreement, any
notice, demand, consent, agreement or other communication (a
"NOTICE") to be served under or in connection with any Senior
Finance Document will be in writing and will be made by letter or
by facsimile transmission to the party to be served.
(b) The address and facsimile number of each party to this agreement
for the purposes of clause 25.1(a) are:
(i) the address and facsimile number shown immediately after
its name on the signature pages of this agreement (in the
case of any person who is a party as at the date of this
agreement);
(ii) the address and facsimile number notified by that party for
this purpose to the Facility Agent on or before the date it
becomes a party to this agreement (in the case of any
person who becomes a party after the date of this
agreement); or
(iii) any other address and facsimile number notified by that
party for this purpose to the Facility Agent by not less
than five Business Days' notice.
(c) Any Notice to be served by any Obligor on a Finance Party will be
effective only if it is expressly marked for the attention of the
department or officer (if any) specified in conjunction with the
relevant address and facsimile number referred to in clause
25.1(b).
25.2 DEEMED SERVICE
(a) Subject to clause 25.2(b), a Notice will be deemed to be given as
follows:
(i) if by letter, when delivered personally or on actual
receipt; and
(ii) if by facsimile, when delivered.
(b) A Notice given in accordance with clause 25.2(a) but received on a
non-working day or after business hours in the place of receipt
will only be deemed to be given on the next working day in that
place.
25.3 LANGUAGE
(a) Any Notice must be in English.
(b) All other documents provided under or in connection with any
Senior Finance Document must be:
(i) in English; or
(ii) if not in English, accompanied by a certified English
translation in which case, the English translation will
prevail unless the document is a constitutional, statutory
or other official document.
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26. CONFIDENTIALITY
Subject to clause 27.8 (Disclosure of information), the parties will keep
the Senior Finance Documents and their subject matter (including all
details relating to the structure and financing of the Offer)
confidential, except to the extent that they are required by law or
regulation or the Panel or the London Stock Exchange to disclose the
same. Each Finance Party agrees with each Obligor to hold confidential
all information which it acquires under or in connection with the Senior
Finance Documents, except to the extent it is required by law or
regulation or the Panel or the London Stock Exchange to disclose it or it
comes into the public domain (otherwise than as a result of a breach of
this clause 26). A Finance Party may, however, disclose any such
information to its auditors, legal advisers or other professional
advisers (the "ADVISERS") for any purpose connected with the Senior
Finance Documents, provided that the relevant Finance Party takes
reasonable steps to procure that each Adviser maintains the
confidentiality of that information and may publicise the transaction
following the issue of the Jersey Non Code Offer Document of the Jersey
Code Offer Document, as the case may be, with the consent of the Parent
(such consent not to be unreasonably withheld or delayed).
27. CHANGES TO PARTIES
27.1 NO TRANSFERS BY THE OBLIGORS
No Obligor may assign or transfer all or any part of its rights or
obligations under any Senior Finance Document other than pursuant to the
terms of the US Mergers.
27.2 TRANSFERS BY LENDERS
(a) A Lender (the "EXISTING LENDER") may transfer its rights and/or
obligations under any Senior Finance Document to any person (a
"NEW LENDER"), provided that:
(i) the New Lender has executed a Creditor Accession Deed;
(ii) in the case of a transfer of rights only, the procedure in
clause 27.3 (Assignments) is followed;
(iii) in the case of a transfer of rights and obligations, the
procedure in clause 27.4 (Transfers) is followed; and
(iv) in the case of a transfer of Revolving Commitments, each
Issuing Lender has approved the New Lender (such approval
not to be unreasonably withheld or delayed.
(b) The Parent (for itself and as agent for the Obligors) will (at its
own cost) promptly execute such documents and take such other
actions as are necessary to effect or perfect a transfer of rights
and/or obligations to a New Lender under the Senior Finance
Documents. Such action will include (i) promptly countersigning
Transfer Certificates (although any delay or failure by the Parent
to so countersign a Transfer Certificate will not invalidate its
operation) and (ii) taking such steps as the Facility Agent or the
Security Agent may request (including re-execution of Security
Documents) for the purpose of ensuring that the New Lender has
(and the other Finance Parties continue to have) the benefit of
the same security interests under the Security Documents as
existed immediately before the relevant transfer.
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(c) Subject to clause 3.4(b) (Syndication), nothing in this agreement
will restrict the ability of a Lender to sub-participate or
sub-contract any of its obligations under any Senior Finance
Document if that Lender remains liable under that Senior Finance
Document in relation to those obligations. A Lender shall notify
the Parent of any such sub-participation or sub-contracting by it.
27.3 ASSIGNMENTS
(a) Subject to clause 27.2(a) an Existing Lender may transfer all or
any of its rights under the Senior Finance Documents by:
(i) the Existing Lender and the New Lender entering into an
assignment of rights in a form agreed between them (which
may be a modified version of a Transfer Certificate); and
(ii) the New Lender delivering to the Facility Agent a copy of
the executed assignment instrument together with (or
incorporating) a legally binding undertaking (in a form
approved by the Facility Agent) confirming to the Facility
Agent (on behalf of the Finance Parties) that it assumes
the same obligations towards the Finance Parties (to the
extent referable to the rights transferred to it) as from
the Assignment Date (as defined below) as it would have
been under if it had been an original party to the Senior
Finance Documents as a Lender.
(b) Subject to also having complied with clause 27.2 (Transfers by
Lenders), the New Lender will be deemed to become a party to the
Senior Finance Documents as a Lender on the date specified in the
assignment instrument (which must be no earlier than the date it
delivers the documents required by clause 27.3(a)(ii) (the
"ASSIGNMENT DATE")).
27.4 TRANSFERS
(a) Subject to clause 27.2(a) an Existing Lender may transfer all or
any of its rights and obligations under the Senior Finance
Documents to a New Lender by the Facility Agent executing a
Transfer Certificate which has been duly completed and signed by
both the Existing Lender and the New Lender.
(b) On the date (the "TRANSFER DATE") which is later of (A) the date
specified in the Transfer Certificate as being the date on or as
from which the transfer under this clause 27.4 is to take effect
and (B) the date on which the Facility Agent executes the Transfer
Certificate:
(i) to the extent the Transfer Certificate records a transfer
of Advances which are outstanding on the Transfer Date, the
transfer will take effect in relation to those Advances and
all related rights under the Credit Agreement by way of
assignment;
(ii) to the extent the Transfer Certificate records a transfer
of rights and obligations under the Senior Finance
Documents in the case of rights to the extent not assigned
as contemplated by paragraph (i) above), each of the
Obligors and the Existing Lender shall be released from
further obligations towards one another under the Senior
Finance Documents and their respective rights against each
other will be cancelled (such rights and obligations being
referred to in this clause 27.4 as "DISCHARGED RIGHTS AND
OBLIGATIONS");
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(iii) each of the Obligors and the New Lender shall assume
obligations towards one another and/or acquire rights
against one another which differ from the Discharged Rights
and Obligations only insofar as that Obligor and the New
Lender have assumed and/or acquired the same in place of
that Obligor and the Existing Lender;
(iv) the Facility Agent, the Security Agent, the Arranger, the
New Lender and the other Lenders shall acquire the same
rights and assume the same obligations between themselves
as they would have acquired and assumed had the New Lender
been a Lender on the date of this agreement with the rights
and/or obligations acquired or assumed by it as a result of
the transfer and to that extent the Facility Agent, the
Security Agent, the Arranger and the Existing Lender shall
each be released from further obligations to each other
under this agreement; and
(v) the New Lender will become a party to this agreement as a
Lender.
(c) Each of the parties to this agreement (other than the relevant
Existing Lender and New Lender) irrevocably authorises the
Facility Agent to execute on its behalf any Transfer Certificate
which has been duly completed and executed by each of the Existing
Lender and the New Lender. Upon the Facility Agent so executing
the Transfer Certificate the transfer will take effect on the
Transfer Date in accordance with this clause 27.4.
27.5 NOTIFICATION
The Facility Agent will promptly notify the Parent (as agent for the
Obligors) and the other Finance Parties of:
(a) receipt of assignment documents under clause 27.3(a)(ii)
(Assignments); and
(b) the receipt and execution by it of any Transfer Certificate under
clause 27.4 (Transfers).
27.6 FEE
On the date on which any transfer takes effect in accordance with this
clause 27, the New Lender will pay to the Facility Agent for its own
account a transfer fee of (pound)1,000.
27.7 LIMITATION OF RESPONSIBILITY OF EXISTING LENDER
(a) Unless expressly agreed to the contrary, an Existing Lender makes
no representation or warranty and assumes no responsibility to a
New Lender for:
(i) the legality, validity, effectiveness, adequacy or
enforceability of the Senior Finance Documents or any other
documents;
(ii) the financial condition of any Obligor;
(iii) the performance and observance by any Obligor of its
obligations under the Senior Finance Documents or any other
documents; or
(iv) the accuracy of any statements (whether written or oral)
made in or in connection with any Senior Finance Document
or any other document,
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and any representations or warranties implied by law are excluded.
(b) Each New Lender confirms to the Existing Lender and the other
Finance Parties that:
(i) it has made (and shall continue to make) its own
independent investigation and assessment of the financial
condition and affairs of each Obligor and its related
entities in connection with its participation in this
agreement and has not relied exclusively on any information
provided to it by the Existing Lender in connection with
any Senior Finance Document;
(ii) it will continue to make its own independent appraisal of
the creditworthiness of each Obligor and its related
entities whilst any amount is or may be outstanding under
the Senior Finance Documents or any Commitment is in force;
and
(iii) if all or any of the Advances or other rights transferred
are rescheduled or renegotiated, the New Lender and not the
Existing Lender will be subject to the rescheduled or
renegotiated terms.
(c) Nothing in any Senior Finance Document obliges an Existing Lender
to:
(i) accept a re-transfer from a New Lender of any of the rights
and obligations transferred under this clause 27; or
(ii) support any losses directly or indirectly incurred by the
New Lender by reason of the non-performance by any Obligor
of its obligations under the Senior Finance Documents or
otherwise.
27.8 DISCLOSURE OF INFORMATION
Each Lender may disclose to a proposed assignee or transferee or any
sub-participant, risk participant or other participant proposing to enter
or having entered into a contract with that Lender regarding the Senior
Finance Documents (and their respective advisers) any information in the
possession of that Lender relating to any Group Company.
27.9 CONTINUATION OF SECURITY
Each Obligor consents to the assignments and transfers of rights and
obligations permitted under and made in accordance with this clause 27.
Each Obligor agrees and confirms that its guarantee and indemnity
Obligations under the Finance Documents and any security granted by it in
support of its own borrowing obligations or its guarantee or indemnity
obligations under the Finance Documents will continue notwithstanding any
transfer under this clause 27 and will extend to cover and support
obligations owed to Existing Lenders and to continuing Finance Parties.
28. LENDERS' DECISIONS
28.1 PROCEDURES
(a) Subject to clauses 28.2 (Exceptions) and 28.3 (Express
provisions), any provision of any Senior Finance Document may be
amended or waived (each a "MODIFICATION") with the agreement of
the Majority Lenders and the Parent. A Modification so agreed may
be effected by the Facility Agent executing any documents which
may be required for that purpose on
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behalf of itself and all the other Finance Parties and the Parent
executing those documents on behalf of itself and all the other
Obligors.
(b) The Facility Agent will as soon as practicable after any
Modification is made in accordance with clause 28.1(a) notify the
other parties to the Senior Finance Documents. Any such
Modification will take effect from the date on which that
notification is given (or any later date which the Facility Agent
may specify in that notification) and will be binding on all
parties to the Senior Finance Documents.
28.2 EXCEPTIONS
The following matters will require the unanimous agreement of all of the
Lenders:
(a) any increase in the Commitment of any Lender;
(b) any reduction of the Margin or any reduction of (or change in the
currency of) the amount of any payment of principal, interest,
guarantee fee or commission payable by any party under any Senior
Finance Document;
(c) any extension of any Availability Period, any Maturity Date, any
Repayment Date or any other date for payment of any amount due,
owing or payable to any Lender under any Senior Finance Document;
(d) any change to the Borrowers or Guarantors or any release of
security, other than in accordance with clause 18 (Changes to
Obligors and Security); or
(e) any amendment of the definition of "Majority Lenders" in clause
1.1 (Definitions) or any amendment of clause 3.3 (Rights and
obligations of Finance Parties), clause 23 (Pro rata payments),
clause 27 (Changes to Parties) or this clause 28.
28.3 EXPRESS PROVISIONS
Any consent or other matter which, by the express terms of any Senior
Finance Document, is to be given by all the Lenders will not be effective
unless all the Lenders have agreed to it but, subject to the agreement of
all the Lenders having been obtained, may be given by the Facility Agent
on behalf of all the Lenders.
28.4 ANCILLARY LENDERS
Subject to clause 6 (Ancillary Facilities), any Ancillary Document may be
amended or waived by agreement between the parties to that Ancillary
Document.
28.5 HEDGING LENDERS
Subject to the terms of the Intercreditor Deed, any Hedging Agreement may
be amended or waived by agreement between the parties to that Hedging
Agreement.
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29. INDEMNITIES
29.1 GENERAL INDEMNITY AND BREAKAGE COSTS
The Parent will indemnify each Finance Party on demand against any loss
(including loss of profit) which it incurs as a result of:
(a) the occurrence of any Default;
(b) any failure by an Obligor to pay any amount due under a Senior
Finance Document on its due date;
(c) any Drawing not being made for any reason (other than as a result
of a default by a Finance Party) on the Drawdown Date specified in
the relevant Drawdown Request; or
(d) any Advance or overdue amount under a Senior Finance Document
being repaid or prepaid otherwise than on the last day of an
Interest Period relating to that Advance or overdue amount.
29.2 CURRENCY INDEMNITY
Without prejudice to clause 29.1 (General indemnity and breakage costs),
if:
(a) any amount payable by any Obligor under or in connection with any
Senior Finance Document is received by any Finance Party (or by an
Agent on behalf of any Finance Party) in a currency (the "PAYMENT
CURRENCY") other than that agreed in the relevant Senior Finance
Document (the "AGREED CURRENCY"), whether as a result of any
judgement or order, the enforcement of any judgement or order, the
liquidation of the relevant Obligor or otherwise, and the amount
produced by converting the Payment Currency so received into the
Agreed Currency is less than the relevant amount of the Agreed
Currency; or
(b) any amount payable by any Obligor under or in connection with any
Senior Finance Document has to be converted from the Agreed
Currency into another currency for the purpose of (i) making or
filing a claim or proof against any Obligor, (ii) obtaining an
order or judgment in any court or other tribunal or (iii)
enforcing any order or judgment given or made in relation to any
Senior Finance Document,
then that Obligor will, as an independent obligation, on demand indemnify
the relevant Finance Party for the deficiency and any loss sustained as a
result. Any conversion required will be made at the prevailing rate of
exchange on the date and in the market determined by the relevant Finance
Party as being most appropriate for the conversion. That Obligor will
also pay the costs of the conversion.
29.3 WAIVER
The Parent waives any right it may have in any jurisdiction to pay any
amount under any Senior Finance Document in a currency other than that in
which it is expressed to be payable in that Senior Finance Document.
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29.4 OFFER INDEMNITY
The Parent, US Bidco, Jersey Holdco and Jersey Bidco will jointly and
severally on demand indemnify each Finance Party and each of their
respective Affiliates, directors, officers, employees or agents (each an
"INDEMNIFIED PARTY") from and against any and all losses, liabilities,
claims, costs and expenses (including legal fees) which the relevant
Indemnified Party may suffer or incur (unless caused by the gross
negligence or wilful misconduct of the Indemnified Party) arising out of
or in connection with any actual or potential legal action or other
proceedings arising out of or relating to the Offers, the financing of
the Offers or any purchase of shares in the Targets.
30. MISCELLANEOUS
30.1 CERTIFICATES CONCLUSIVE
Save as expressly provided otherwise in any Senior Finance Document, a
certificate, determination, notification or opinion of any Finance Party
stipulated for in any Senior Finance Document or as to any rate of
interest or any other amount payable under any Senior Finance Document
will be conclusive and binding on each Obligor, except in the case of
manifest error.
30.2 NO IMPLIED WAIVERS
(a) No failure or delay by any Finance Party in exercising any right,
power or privilege under any Senior Finance Document will operate
as a waiver of that right, power or privilege, nor will any single
or partial exercise of any right, power or privilege preclude any
other or further exercise of that right, power or privilege, or
the exercise of any other right, power or privilege.
(b) The rights and remedies provided in the Senior Finance Documents
are cumulative and not exclusive of any rights and remedies
provided by law and all those rights and remedies will, except
where expressly provided otherwise in any Senior Finance Document,
be available to the Finance Parties severally and any Finance
Party shall be entitled to commence proceedings in connection with
those rights and remedies in its own name.
(c) A waiver given or other consent granted by any Finance Party under
any Senior Finance Document will be effective only if given in
writing and then only in the instance and for the purpose for
which it is given.
30.3 INVALIDITY OF ANY PROVISION
If any provision of this agreement is or becomes invalid, illegal or
unenforceable in any respect under any law, the validity, legality and
enforceability of the remaining provisions shall not be affected or
impaired in any way.
30.4 COUNTERPARTS
This agreement may be executed in any number of counterparts and all of
those counterparts taken together shall be deemed to constitute one and
the same instrument.
30.5 PERPETUITY PERIOD
The perpetuity period applicable to the trusts created by this agreement
is 80 years.
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30.6 THIRD PARTY RIGHTS
(a) The Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ shall apply to
this agreement only in respect of the benefit of the Agents'
indemnity extended to the Agent's respective personnel, delegates
or agents ("RELEVANT THIRD PARTIES") under clause 22.3(a) (Agents'
rights) and no other third party shall have any rights under this
agreement.
(b) A Relevant Third Party may not veto or restrict in any way any
amendment or termination of this agreement which is agreed by the
parties.
31. GOVERNING LAW AND SUBMISSION TO JURISDICTION
31.1 This agreement (and any dispute, controversy, proceedings or claim of
whatever nature arising out of or in any way relating to this agreement)
shall be governed by, and construed in accordance with, English law.
31.2 SUBMISSION TO JURISDICTION
For the benefit of each Finance Party, each Obligor irrevocably submits
to the jurisdiction of the courts in England for the purpose of hearing
and determining any dispute arising out of this agreement and for the
purpose of enforcement of any judgment against its assets.
31.3 FREEDOM OF CHOICE
The submission to the jurisdiction of the courts referred to in clause
31.2 (Submission to Jurisdiction) shall not (and shall not be construed
so as to) limit the right of any Finance Party to take proceedings
against any Obligor in any other court of competent jurisdiction nor
shall the taking of proceedings in any one or more jurisdictions preclude
the taking of proceedings in any other jurisdiction (whether concurrently
or not) if and to the extent permitted by applicable law.
31.4 SERVICE OF PROCESS
Without prejudice to any other permitted mode of service, each Obligor
(incorporated outside England and Wales) agrees that service of any claim
form, notice or other document for the purpose of any proceedings in such
courts shall be duly served upon it if delivered or sent by registered
post to the Parent at ▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ marked for the
attention of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or such other address in England or Wales as
the Parent may notify from time to time to the Facility Agent.
IN WITNESS whereof this agreement has been duly executed on the date first above
written.
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SCHEDULE 1
LENDERS
TERM A TERM B TERM C CASH BRIDGE REVOLVING
COMMITMENT COMMITMENT COMMITMENT COMMITMENT COMMITMENT
((POUND)) ((POUND)) ((POUND)) ((POUND)) ((POUND))
BARCLAYS BANK PLC 32,000,000 14,000,000 5,000,000 5,000,000 3,000,000
Lending Office:
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Facsimile:
020 7699 2770
Attention:
▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇▇
---------------------------------------------------------------------------------------
(pound)32,000,000(pound)14,000,000 (pound)5,000,000 (pound)5,000,000 (pound)3,000,000
-141-
SCHEDULE 2
BORROWERS
COMPANY PLACE OF INCORPORATION REGISTERED NUMBER
FSHC Holdco England & Wales 3806216
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SCHEDULE 3
GUARANTORS
COMPANY PLACE OF INCORPORATION REGISTERED NUMBER
Parent England and Wales 3782935
FSHC Investments England and Wales 3782943
FSHC Holdco England and Wales 3806216
Jersey Holdco Guernsey 39653
Jersey Bidco ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ Bidco Delaware, United States N/A
UK Holdco England and Wales 4470724
US LLC Delaware, United States N/A
Four Seasons Group Limited Isle of Man 1637
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SCHEDULE 4
PART 1 - CONDITIONS PRECEDENT TO SIGNING THIS AGREEMENT
1. FORMALITIES DOCUMENTS
The documents referred to in paragraphs 1 to 6 (inclusive) of part 4 of
this schedule in respect of the Initial Guarantors.
2. SENIOR FINANCE DOCUMENTS
The following documents in the agreed form duly executed and delivered by
all parties thereto:
(a) this agreement;
(b) the Debenture executed by the Initial Guarantors incorporated in
England and Wales, Jersey Holdco, Jersey Bidco and Four Seasons
Group Limited;
(c) Guernsey law share pledge executed by Jersey Holdco in relation to
the shares Jersey Holdco holds in Jersey Bidco;
(d) Guernsey law charge over bank accounts entered into by Jersey
Holdco and Jersey Bidco;
(e) Share Pledge Agreement executed by UK Holdco in relation to the
membership interests in US LLC;
(f) Security and Pledge Agreement executed by US LLC and US Bidco;
(g) the Intercreditor Deed;
(h) the Fees Letters; and
(i) the Syndication Letter.
3. EQUITY DOCUMENTS
Certified copies of the following documents (other than in respect of
(c), (d),(e) and (f)) duly executed and delivered by all parties thereto:
(a) the FSHC Investment Agreement and the PHFL Investment Agreement
and any disclosure letter and management rights agreement in
respect thereof;
(b) the FSHC Existing Investor Loan Note Instruments;
(c) the agreed form FSHC New Investor Loan Note Instrument;
(d) the agreed form Alchemy Undertaking Investor Loan Note Instrument;
(e) the agreed form Deed of Termination;
(f) the agreed form Subordinated Guarantee;
(g) the Constitutional Documents; and
(h) the Alchemy Undertaking.
4. OFFER DOCUMENTS
The following documents in the agreed form:
(a) the Jersey Code Offer Document if the Jersey Code Offer is made or
the Jersey Non Code Offer Document if the Jersey Non Code Offer is
made;
(b) the Merger Agreement;
(c) the Disclosure Letter;
(d) the Stock Purchase Agreement;
(e) the Option Agreement;
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(f) the Tender Agreements; and
(g) the Sale and Purchase Agreement.
5. REPORTS
Originals of each of the Reports (duly addressed to the satisfaction of
the Facility Agent to the Finance Parties, or with a written confirmation
addressed to the satisfaction of the Facility Agent to the Finance
Parties from the person that has produced the relevant report that the
same may be relied upon by the Finance Parties).
6. LEGAL OPINION
Following legal opinions in form and substance satisfactory to the
Facility Agent:
(a) Ashurst ▇▇▇▇▇▇ ▇▇▇▇▇ as regards English law;
(b) Ozannes as regards Guernsey law; and
(c) Cains as regards Isle of Man law.
7. INFORMATION PACK
The Information Pack.
8. FINANCIAL ASSISTANCE
Pro formas of the Financial Assistance Resolutions in the agreed form.
9. FINANCIAL AND RELATED INFORMATION
A copy of:
(a) the Approved Projections;
(b) the Business Plan;
(c) the Original Audited Accounts; and
(d) the Original Management Accounts in respect of the Parent.
10. KPMG PAPERS
The following KPMG papers duly addressed to the satisfaction of the
Facility Agent to the Finance Parties and their successors, assignees and
transferees:
(a) the KPMG Structure Paper; and
(b) the KPMG Securitisation Paper.
11. SECURITISATION
Copies of the Securitisation Documents.
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12. EXISTING LOANS AND SECURITY MEMORANDUM
The Existing Loans and Security Memorandum.
13. SECURITY NOTICES, RELEASES AND CONSENTS
(a) The original notices of assignment or charge to be given under the
Security Documents set out in paragraph 2 above duly signed on
behalf of the relevant Obligor;
(b) evidence that all Security Interests (other than Security
Interests permitted under clause 20.3(c)) in favour of third
parties granted by the relevant Obligor or any of its Subsidiaries
have been released; and
(c) all third party consents required for the creation of any Security
Interest contained in any Security Document set out in paragraph 2
above.
14. SHARE SECURITY
If any Security Document set out in paragraph 2 above to be executed by
the relevant Obligor creates a Security Interest over shares in a
Subsidiary of that Obligor:
(a) where such Subsidiary is not itself an Obligor, a certified copy
of the memorandum and articles of association (or other
constitutional documents) of such Subsidiary in a form acceptable
to the Facility Agent; and
(b) stamped executed but undated stock transfer forms and share
certificates in respect of such shares and, in respect of the
shares of US Bidco and membership interests in US LLC:
(i) to the extent certificated, the certificates therefore
endorsed in blank or accompanied by executed blank stock
powers; and
(ii) to the extent uncertificated, an agreement of US LLC with
respect to any uncertificated membership interests in US
LLC, and US Bidco with respect to any uncertificated shares
in US Bidco, in form satisfactory to the Security Agent to
comply with instructions originated by the Security Agent
without further consent of the registered owner or such
membership interests or shares, as the case may be.
15. ELECTRA SUBORDINATION DEED
A copy of the Electra Subordination Deed.
16. APPROVALS AND CONSENT
Evidence that all approvals, authorisations, consents, licences,
exemptions, filings, notarisations and registrations necessary for any of
the transactions contemplated by the Transaction Documents and their
validity and/or enforceability have been obtained and are in full force
and effect other than those set out in schedule 10.
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17. STANDSTILL AGREEMENTS
Certified copies of the Standstill Agreements in the agreed form duly
executed and delivered by all parties thereto.
18. FEES
Evidence that all fees payable on the date of this agreement in
accordance with the Fees Letters and this agreement will be paid.
19. PROPERTIES
(a) A certificate of title applicable to each of the Key Properties
prepared and signed by Messrs ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ (save in relation
to Hawthorn House, Belfast and La Haule, Jersey) duly addressed to
the satisfaction of the Facility Agent to the Finance Parties
(b) A letter or report prepared and signed by Messrs ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
duly addressed to the reasonable satisfaction of the Facility
Agent to the Finance Parties and their successors, assigns and
transferees in relation to the property known as La Haule House,
La ▇▇▇▇▇ ▇▇ ▇'▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ in the agreed form
(c) A report on title in the agreed form prepared and signed by Messrs
Tughans duly addressed to the reasonable satisfaction of the
Facility Agent to the Finance Parties and their successors,
assigns and transferees in relation to the property known as
Hawthorn House, Belfast
20. CRESTACARE LOAN NOTE INSTRUMENT
A copy of the Crestacare Loan Note Instrument.
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PART 2 - CONDITIONS PRECEDENT - FIRST DRAWDOWN
1. OFFER DOCUMENTS
(a) A certified copy of the Jersey Code Offer Document if the Jersey
Code Offer is made or the Jersey Non Code Offer Document if the
Jersey Non Code Offer is made;
(b) a certified copy of the US Offer Document and Merger Agreement.
2. ACCEPTANCES
(a) Evidence that the Jersey Offer has not lapsed and has been
declared unconditional in all respects following receipt of
acceptances of the Jersey Offer (which have not been withdrawn) in
respect of not less than 90% of the Jersey Target Shares and the
warrants the subject of the Jersey Offer or such lower amount as
the Facility Agent may agree;
(b) evidence that all of the conditions to the US Offer specified in
the Offer to Purchase shall have been and shall continue to be
satisfied in all material respects;
(c) evidence that US Bidco will beneficially acquire on drawdown at
least the Minimum Number of US Target Shares, and that there shall
not have been any material increase in the number of shares of US
Target outstanding since the date of the Merger Agreement (after
giving effect to any dilution other than as a result of and only
to the extent contemplated by the Stock Purchase Agreement or
Option Agreement).
3. EQUITY
(a) evidence that an amount of not less than (pound)25,000,000 has
been advanced and/or invested in the Parent and FSHC Investments
by the Original Equity Investors by way of the Original Equity
Investors subscribing for shares in the capital of the Parent in
an amount of not less than (pound)3,000,000 and subscribing for
the FSHC New Investor Notes not less than (pound)22,000,000 IN
accordance with the KPMG Structure Paper;
(b) evidence that any monies injected into the Parent and FSHC
Investments have been advanced to US Bidco in accordance with the
KPMG Structure Paper;
(c) evidence that immediately following the first Drawing FSHC Holdco
will advance (pound)11,900,000 to Jersey Bidco in accordance with
the terms of the KPMG Structure Paper;
(d) evidence that an amount of not less than (pound)152.31 has been
advanced and/or invested in Jersey Holdco by the Original Equity
Investors by way of the Original Equity Investors subscribing for
shares in the capital of Jersey Holdco in an amount of not less
than (pound)152.31 and that such amount has been advanced to
Jersey Bidco in accordance with the KPMG Structure Paper; and
(e) certified copies of the following documents duly executed and
delivered by all parties thereto:
(i) the FSHC New Investor Loan Note Instrument; and
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(ii) the Subordinated Guarantee.
4. APPROVALS
(a) Certified copies of board resolutions of:
(i) Jersey Bidco approving the terms of the Jersey Offer as set
out in the Jersey Code Offer Document or the Jersey Non
Code Offer Document (as the case may be); and
(ii) each of the Parent and US Bidco approving the terms of the
Merger Agreement, Option Agreement, Stock Purchase
Agreement, Tender Agreements, Articles of Merger,
Certificate of Merger and the US Offer as set out in the US
Offer Document.
(b) Certified copies of the Australian Approval and the Jersey
Approval.
5. FEES
Evidence that, upon first Drawdown, all fees payable in accordance with
the Fees Letters and this agreement will be paid.
6. SERVICE CONTRACT
A copy of the executed service contract in respect of the Key Executive.
7. NEW INVESTOR LOAN NOTE INSTRUMENT
A certified copy of the FSHC New Investor Loan Note Instrument duly
executed and delivered by all persons thereto.
8. OTHER US OFFER CONDITIONS PRECEDENT
(a) Each of the Merger Agreement, the Disclosure Letter, Option
Agreement, Stock Purchase Agreement and Tender Agreements shall be
in full force and effect and shall not have been terminated; and
there shall have been no waiver or amendment of any provision
thereof or of the Offer to Purchase (including, without
limitation, the conditions precedent therein) not consented to by
the Facility Agent;
(b) there shall exist no action, suit, investigation, litigation or
proceeding entitling the Parent or US Bidco to terminate the
Merger Agreement (or which would have entitled the Parent or US
Bidco to so terminate but for any limitation arising out of any
breach or failure to perform the Merger Agreement by the Parent or
US Bidco);
(c) certified copies of the constitutional documents of US Bidco, US
LLC and US Target; and
(d) evidence that the Board of Directors of US Target shall not have
modified or amended in any material respect its recommendation of
the US Offer in a manner adverse to US Bidco or the Parent or
withdraws such recommendation;
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9. SECURITY
The following documents in the agreed form duly executed and delivered by
all parties thereto in respect of each Group Company other than (i) the
US Target and its Subsidiaries listed in part 2 of Schedule 9, or (ii)
the Jersey Target and the Jersey Target Subsidiaries if, as a result of
the Jersey Offer, as at the Unconditional Date the US Target and Jersey
Bidco together beneficially own less than 95 per cent of the Jersey
Target Shares:
(a) an Accession Document to this agreement;
(b) the Security Documents listed against its name in part 2 of
Schedule 9;
(c) an Accession Document to the Intercreditor Deed;
(d) a Jersey law security interest agreement entered into by Jersey
Bidco over the Jersey Target Shares acquired by Jersey Bidco,
(e) those documents set out in part 4 of Schedule 4 (save to the
extent already provided).
10. JERSEY FINANCIAL ASSISTANCE
If, as a result of the Jersey Offer, as at the Unconditional Date the US
Target and Jersey Bidco together beneficially own at least 95 per cent of
the Jersey Target Shares, evidence in form and substance satisfactory to
the Facility Agent that the requirements of Article 58 of the Companies
(Jersey) Law 1991 (as amended) have been complied with so far as they
relate to the Senior Finance Documents.
11. JERSEY NON CODE OFFER
If the Jersey Non Code Offer is made, evidence in form and substance
satisfactory to the Facility Agent that the Jersey Target has been
re-registered as a private company pursuant to Article 16 of the
Companies (Jersey) Law 1991 (as amended) and that the Code has
accordingly been disapplied.
12. FINANCIAL INDEBTEDNESS
Evidence that all Financial Indebtedness of the Target Groups other than
Financial Indebtedness permitted in accordance with the terms of this
agreement will be paid and discharged in full on the first Drawdown Date.
13. PROPERTY
(a) All original title deeds and Land Registry Charge Certificates in
relation to the Key Properties together with any necessary Land
Registry forms DS1, deeds of release, forms 403a (including
without limitation forms DS1 and deeds of release relating to the
sub-charges granted to ▇▇▇▇▇▇▇ ▇▇▇▇▇ over any intra-group charges
affecting the Key Properties) duly executed and made available to
the Borrower's Solicitors conditional only on repayment of
existing indebtedness to ▇▇▇▇▇▇▇ ▇▇▇▇▇ and Bank of Scotland plc.
(b) An undertaking from the Borrower's solicitors (in relation to
Hawthorn House, Belfast meaning Messrs Tughans) in a form approved
by the Security Agent's solicitors dealing with the registration
of the Security Agent's security over the Key Properties.
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(c) Official priority searches in Land Registry form 94A/D relating to
the Key Properties in England and Wales in favour of the Security
Agent in relation to any registered titles giving a sufficient
period of at least 15 days following the first Drawdown Date.
(d) The delivery to Crills in Jersey of:
(i) an undated billet securing an amount up to
(pound)59,000,000 validly executed by PHF Securities No.3
and PHF Reversions No.3 together with cleared funds in the
sum of (pound)31,125 for the stamp duty payable on such
billet; and
(ii) written letters of authority signed by PHF Securities No.3
and PHF Reversions No.3 in relation to the billet referred
to in paragraph (i) above.
14. SECURITY NOTICES, RELEASES AND CONSENTS
(a) The original notices of assignment or charge to be given under the
Security Documents duly signed on behalf of the relevant Obligor;
(b) evidence that all Security Interests (other than Security
Interests permitted under clause 20.3(c)) in favour of third
parties granted by the relevant Obligor or any of its Subsidiaries
have been released;
(c) all third party consents required for the creation of any Security
Interest contained in any Security Document.
15. SHARE SECURITY
(a) If the Security Document to be executed by the relevant Obligor
creates a Security Interest over shares in a Subsidiary of that
Obligor:
(i) where such Subsidiary is not itself an Obligor, a certified
copy of the memorandum and articles of association (or
other constitutional documents) of such Subsidiary in a
form acceptable to the Facility Agent;
(ii) stamped (where applicable) executed but undated stock
transfer or stock powers forms (as applicable) in respect
of such shares (stamped if applicable); and
(iii) share certificates in respect of such shares.
(b) Evidence satisfactory to the Security Agent that the Shares
acquired by Jersey Bidco under the Jersey Offer are held to the
order of the Security Agent until delivery of the share
certificates in respect of such shares.
16. LEGAL OPINION
Legal opinions in form and substance satisfactory to the Facility Agent
from:
(a) Ashurst ▇▇▇▇▇▇ ▇▇▇▇▇ as to English law;
(b) Crills as to Jersey law;
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(c) White & Case as to US law; and
(d) counsel to the Arranger with regard to Northern Ireland law.
17. MISCELLANEOUS
(a) In respect of the shares of US Bidco and membership interests in
US LLC:
(i) to the extent certificated, the certificates therefor
endorsed in blank or accompanied by executed blank stock
powers; and
(ii) to the extent uncertificated, an agreement of US LLC with
respect to any uncertificated membership interests in US
LLC, and US Bidco with respect to any uncertificated shares
in US Bidco, in form satisfactory to the Security Agent to
comply with instructions originated by the Security Agent
without further consent of the registered owner of such
membership interests or shares, as the case may be.
(b) Certified copies of :
(i) the Merger Agreement;
(ii) the Disclosure Letter;
(iii) the Stock Purchase Agreement;
(iv) the Option Agreement;
(v) the Tender Agreements; and
(vi) the Offer to Purchase,
in each case in form and substance satisfactory to the Facility
Agent.
18. INTEGRATION PLAN
A copy of the Integration Plan.
19. SALE AND PURCHASE AGREEMENT
A certified copy of the Sale and Purchase Agreement.
20. ORIGINAL MANAGEMENT ACCOUNTS
Copies of the Original Management Accounts in respect of the US Target
Group and the Jersey Target Group.
21. CONSTITUTIONAL DOCUMENTS
Evidence that the Constitutional Documents have been amended so as to be
in form and substance satisfactory to the Facility Agent.
22. INTERCOMPANY BALANCES
A summary of the loan balances as at the date of this agreement in
relation to loans between Excluded Companies and Group Companies.
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PART 3 - CONDITIONS SUBSEQUENT RELATING TO THE GRANTING OF SECURITY
1. FORMALITIES DOCUMENTS
The documents referred to in part 4 of this schedule in respect of the
Security Documents and Accession Documents to be executed by the relevant
Obligor.
2. FINANCIAL ASSISTANCE
Evidence in form and substance satisfactory to the Facility Agent that
(if applicable) the requirements of sections 151-158 Companies ▇▇▇ ▇▇▇▇
(or its equivalent) or Article 58 of the Companies (Jersey) Law 1991 (as
amended) (if applicable) have been complied with so far as they relate to
the Senior Finance Documents.
3. LEGAL OPINION
A legal opinion in a form satisfactory to the Facility Agent in respect
of any security not governed by English law.
4. PROPERTY
(a) All original title deeds and land certificates in relation to the
Properties to be charged under the relevant Security Document.
(b) A certificate of title to each of the Properties to be charged
under the relevant Security Document (duly addressed to the
satisfaction of the Facility Agent to the Finance Parties and
their successors, assignees and transferees).
(c) An undertaking from the Borrowers' counsel to deal with the
registration of the Security Agent's security over the Properties
to be charged under the relevant Security Document.
(d) Official priority searches relating to the Properties to be
charged under the relevant Security Document in favour of the
Security Agent in relation to any registered titles giving a
sufficient period of priority of at least 15 days following the
date of this agreement.
5. SECURITY NOTICES, RELEASES AND CONSENTS
(a) The original notices of assignment or charge to be given under the
Security Documents duly signed on behalf of the relevant Obligor;
(b) evidence that all Security Interests (other than Security
Interests permitted under clause 20.3(b)) in favour of third
parties granted by the relevant Obligor or any of its Subsidiaries
have been released;
(c) all third party consents required for the creation of any Security
Interest contained in any Security Document.
-153-
6. SHARE SECURITY
If the Security Document to be executed by the relevant Obligor creates a
Security Interest over shares in a Subsidiary of that Obligor:
(a) where such Subsidiary is not itself an Obligor, a certified copy
of the memorandum and articles of association (or other
constitutional documents) of such Subsidiary in a form acceptable
to the Facility Agent;
(b) stamped executed but undated stock transfer or stock powers forms
(as applicable) in respect of such shares (stamped if applicable);
and
(c) share certificates in respect of such shares.
-154-
PART 4 - CORPORATE DOCUMENTS IN RESPECT OF EACH OBLIGOR
1. FORMALITIES CERTIFICATE
A Formalities Certificate or, for US Obligors, an incumbency certificate.
2. CONSTITUTIONAL DOCUMENTS
Certified copy of the memorandum and articles of association (or other
constitutional documents) of the Obligor in form acceptable to the
Facility Agent.
3. CERTIFICATE OF INCORPORATION
A certified copy of the certificate of incorporation (or equivalent), and
the certificates of incorporation on change of name (if any), relating to
the Obligor.
4. BOARD RESOLUTIONS
A certified copy of a resolution of the directors (or equivalent) of the
Obligor approving the transactions and matters contemplated by this
agreement, the other Senior Finance Documents and the Transaction
Documents and approving the execution, delivery and performance hereof
and thereof and authorising named persons to sign this agreement, the
other Senior Finance Documents and the Transaction Documents to which it
is or is to be a party and any documents to be delivered by such Obligor
pursuant hereto or thereto.
5. SHAREHOLDERS RESOLUTIONS
If required under its constitutional or governing documents, a certified
copy of a resolution of the shareholders of the Obligor approving the
transactions and matters contemplated by this agreement, the other Senior
Finance Documents and the Transaction Documents to which (in each case)
such Obligor is or is to be a party.
6. APPROVALS
Evidence that all approvals, authorisations, consents, licences,
exemptions, filings, notarisations and registrations necessary for any of
the transactions contemplated by the Senior Finance Documents so far as
they relate to the Obligor and their validity and/or enforceability have
been obtained and are in full force and effect.
7. PROCESS AGENT
If the Obligor is incorporated outside England and Wales, an appointment
of a process agent in England for acceptance of service of process.
-155-
SCHEDULE 5
PART 1 - DRAWDOWN REQUEST - ADVANCES
To: o as Facility Agent
Attention: o
From: [BORROWER]
Date: o
Dear Sirs,
RE: (POUND)o CREDIT AGREEMENT DATED o (THE "CREDIT AGREEMENT")
We request a Drawing of the [TERM A/TERM B/TERM C/ CASH BRIDGE/REVOLVING]
Facility as follows:
(a) Amount: o
(b) Currency: o
(c) Drawdown Date: o
(d) Interest Period: o
(e) Payment should be made to: o
(f) The Borrower is: o
(1) We confirm that [no Drawstop Default has occurred]2:
[or (i) the representations and warranties made in clause 19
(Representations and Warranties) of the Credit Agreement
stipulated as being made or repeated on the date of this
Drawdown Request are true and accurate as if made in relation
to the facts and circumstances existing on that date; and
(ii) no Default has occurred and is continuing or will occur as a
result of the proposed Advance being made. ]
Terms defined in the Credit Agreement have the same meanings when used in this
request.
...........................
[AUTHORISED SIGNATORY]
for and on behalf of
[BORROWER]
----------
(1) Need not be included for rollover of Revolving Advances.
(2) Select this wording if the Advance is an Offer Utilisation.
-156-
PART 2 - DRAWDOWN REQUEST - BANK GUARANTEES
To: o as Facility Agent
Attention: o
From: [BORROWER]
Date: o
Dear Sirs,
RE: (POUND)o CREDIT AGREEMENT DATED o (THE "CREDIT AGREEMENT")
We request a Drawing of the Revolving Facility by way of issue of a Bank
Guarantee as follows:
(a) Amount: o
(b) [Currency: o]
(c) Drawdown Date: o
(d) Beneficiary: o
(e) Expiry Date: o
(f) Obligation to be guaranteed: o
(g) The Borrower is: o
We confirm that [no Drawstop Default has occurred](3):
[or (i) the representations and warranties made in clause 19
(Representations and Warranties) of the Credit Agreement
stipulated as being made or repeated on the date of this
Drawdown Request are true and accurate as if made in relation
to the facts and circumstances existing on that date; and
(ii) no Default has occurred and is continuing or will occur as a
result of the proposed Advance being made. ]
We attach the form of the proposed Bank Guarantee.
Terms defined in the Credit Agreement have the same meanings when used in this
request.
...........................
[AUTHORISED SIGNATORY]
for and on behalf of
[BORROWER]
----------
(3) Select this wording if the Advance is an Offer Utilisation.
-157-
SCHEDULE 6
TRANSFER CERTIFICATE
(REFERRED TO IN CLAUSE 27.4 (TRANSFERS))
WARNING
EXECUTION AND DELIVERY OF THIS TRANSFER CERTIFICATE MAY NOT OF ITSELF BE
SUFFICIENT TO TRANSFER THE UNDERLYING SECURITY. ADVICE SHOULD BE TAKEN FROM
LAWYERS IN THE JURISDICTIONS WHERE THE SECURITY PROVIDERS ARE INCORPORATED.
EACH OF THE EXISTING LENDER AND NEW LENDER SHOULD ENSURE THAT ALL REGULATORY
REQUIREMENTS ARE SATISFIED IN CONNECTION WITH THIS TRANSFER CERTIFICATE -
INCLUDING THOSE NECESSARY TO REMOVE THE TRANSFERRED ASSETS FROM THE REGULATORY
BALANCE SHEET OF THE EXISTING LENDER.
THIS TRANSFER CERTIFICATE OPERATES BY WAY OF ASSIGNMENT AND ASSUMPTION (AS
OPPOSED TO NOVATION). CARE NEEDS TO BE TAKEN TO ENSURE THIS DOES NOT TRIGGER
STAMP DUTIES OR OTHER TRANSFER TAXES.
To: o as Facility Agent
From: o (the "EXISTING LENDER") and o (the "NEW LENDER")
RE: FOUR SEASONS HEALTHCARE LIMITED - (POUND)59,000,000 CREDIT AGREEMENT DATED o
(THE "CREDIT AGREEMENT")
Terms defined in the Credit Agreement shall, unless otherwise defined in this
Certificate, have the same meanings when used in this Certificate.
1. EXISTING LENDER COMMITMENTS
The Existing Lender confirms that the details which appear in part 1 of
the schedule to this Certificate accurately record the amount of the
Existing Lender's Commitments at the date of this Certificate.
2. TRANSFER
(a) The Existing Lender, the New Lender [and the Facility Agent] agree
to the transfer of the Existing Lender's rights and obligations in
relation to the Commitments, Advances and other interests in the
Credit Agreement specified in part 2 of the schedule to this
Certificate in accordance with clause 27.4 of the Credit
Agreement.
(b) To the extent this Certificate transfers Advances outstanding on
the Transfer Date, such transfer will take effect in relation to
those Advances and all related rights under the Credit Agreement
by way of assignment (the "ASSIGNED RIGHTS").
(c) The proposed Transfer Date is [o].
-158-
3. NEW LENDER UNDERTAKING AND ACKNOWLEDGEMENT
(a) The New Lender undertakes with the Existing Lender and each of the
other parties to the Credit Agreement that it will perform all
those obligations which, by the terms of the Credit Agreement,
will be assumed by it following execution of this Certificate by
the Facility Agent.
(b) The New Lender acknowledges and agrees that it enters into this
Certificate subject to the terms of clause 27.7 (Limitation of
Responsibility of Existing Lender) of the Credit Agreement.
4. REVOLVING COMMITMENTS
To the extent that this Certificate operates to transfer Revolving
Commitments, each Issuing Lender has consented to that transfer in
accordance with clause 27.2 (Transfers by Lenders).
5. NO SET-OFF RIGHTS
The Existing Lender warrants that the Assigned Rights are assigned free
of any rights of set-off in favour of any Obligor and free of any lien,
security interest or other encumbrance.
6. COUNTERPARTS
This Certificate may be executed in any number of counterparts and all of
those counterparts taken together shall be deemed to constitute one and
the same instrument.
7. LAW
This Certificate (and any dispute, controversy, proceedings or claim of
whatever nature arising out of or in any way relating to this
Certificate) shall be governed by and construed in accordance with
English Law. The parties submit to the jurisdiction of the English courts
in accordance with clause 31 (Governing Law and Submission to
Jurisdiction) of the Credit Agreement.
IN WITNESS of which the parties to this Certificate have duly executed this
Certificate on the date which appears at the end of this Certificate.
-159-
SCHEDULE TO TRANSFER CERTIFICATE
PART 1
EXISTING LENDER'S EXISTING COMMITMENTS
Existing Lender's existing Term A Commitment: (pound)o
Existing Lender's existing Term B Commitment: (pound)o
Existing Lender's existing Term C Commitment: (pound)o
Existing Lender's existing Cash Bridge Commitment: (pound)o
Existing Lender's existing Revolving Commitment: (pound)o
PART 2
COMMITMENTS, ADVANCES AND OTHER INTERESTS TRANSFERRED
Portion of Existing Lender's existing Term A Commitment to be transferred: (pound)o
Portion of Existing Lender's existing Term B Commitment to be transferred: (pound)o
Portion of Existing Lender's existing Term C Commitment to be transferred: (pound)o
Portion of Existing Lender's existing Cash Bridge Commitment to be transferred: (pound)o
Portion of Existing Lender's existing Revolving Commitment to be transferred: (pound)o
PARTICIPATION IN TERM ADVANCES TRANSFERRED
BORROWER PARTICIPATION TERM
[ ] [(pound) ] [ ]
[ ] [(pound) ] [ ]
PARTICIPATION IN REVOLVING ADVANCE(S) TRANSFERRED (4):
BORROWER PARTICIPATION INTEREST PERIOD MATURITY DATE
[ ] [ ] [ ] [ ]
[ ] [ ] [ ] [ ]
----------
(4) Only relevant if Transfer Date is during an Interest Period.
-160-
PARTICIPATION IN BANK GUARANTEE(S) TRANSFERRED:
ACCOUNT PARTY BENEFICIARY FACE AMOUNT PARTICIPATION EXPIRY DATE
[ ] [ ] [ ] [ ] [ ]
[ ] [ ] [ ] [ ] [ ]
-161-
PART 3
PARTICULARS RELATING TO THE NEW LENDER
Facility Office:
Contact Name:
Account for Payments:
Address for Notices:
Telephone:
Facsimile:
SIGNATORIES TO TRANSFER CERTIFICATE
[Existing Lender] [New Lender]
By: .................... By: ................
Date: o Date: o
[Facility Agent]
By: ....................
Date: o
We acknowledge the above and in particular the transfer of obligations to the
New Lender recorded in the above certificate.
BY: ........................................................
PARENT FOR ALL THE OBLIGORS
-162-
SCHEDULE 7
ACCESSION DOCUMENT
THIS DEED is made on o
BETWEEN:
(1) o (a company incorporated in o [with registered number o]) (the "NEW
OBLIGOR");
(2) o (a company incorporated in o [with registered number o]) (the "PARENT")
for itself and as agent for the existing Obligors;
(3) o in its capacity as Facility Agent under the Credit Agreement; and
(4) o in its capacity as Security Agent under the Credit Agreement.
WHEREAS:
(A) This deed is entered into in connection with a (pound)o credit
agreement (the "CREDIT AGREEMENT") between, amongst others, (1) the
Parent (2) Bidco (3) the companies named in the Credit Agreement as
Borrowers and/or Guarantors (4)-(7) Barclays Bank PLC in its various
capacities as Arranger, Lender, Facility Agent and Security Agent.
(B) This deed has been entered into to record the admission of the New
Obligor as a [Borrower/Guarantor] under the Credit Agreement and as an
Obligor under the Intercreditor Deed.
IT IS AGREED as follows:
1. DEFINITIONS
Words and expressions defined in the Credit Agreement have the same
meanings when used in this deed.
2. ADMISSION OF NEW OBLIGOR
2.1 The New Obligor agrees to become:
(a) a [Borrower/Guarantor] under the Credit Agreement and agrees to be
bound by the terms of the Credit Agreement as a
[Borrower]/Guarantor]; and
(b) an Obligor under the Intercreditor Deed and agrees to be bound by
the terms of the Intercreditor Deed as an Obligor.
2.2 The New Obligor confirms the appointment of the Parent as its agent on
the terms of clause o of the Credit Agreement and clause o of
the Intercreditor Deed and as its process agent for the purposes of
clause o of the Credit Agreement.
2.3 The New Obligor confirms that its address details for notices in relation
to clause 25 (Notices) are as follows:
-163-
Address: o
Facsimile: o
Attention of: o
2.4 The parties to this deed other than the New Obligor confirm their
acceptance of the New Obligor as a [Borrower/Guarantor] for the purpose
of the Credit Agreement and as an Obligor for the purpose of the
Intercreditor Deed.
3. REPRESENTATIONS
The New Obligor represents and warrants in the terms set out in 19.2
(Incorporation) to 19.5 (No contravention) inclusive and acknowledges
that the Facility Agent and the Security Agent enter into this Accession
Document in full reliance on those representations and warranties.
4. LAW AND JURISDICTION
4.1 This deed (and any dispute, controversy, proceedings or claim of whatever
nature arising out of or in any way relating to this deed) shall be
governed by and construed in accordance with English law.
4.2 [The New Obligor and Facility Agent hereby irrevocably waive all right to
a trial by jury in any action, proceeding or counterclaim arising out of
or relating to this Accession Document or any Senior Finance Document or
the transactions contemplated thereby.](5)
5. COUNTERPARTS
This Accession Document may be executed in two or more counterparts, each
of which shall constitute an original, but all of which, when taken
together shall constitute one instrument.
IN WITNESS whereof this deed has been executed on the date first above written.
----------
(5) Only relevant to US Obligors
-164-
SIGNATORIES TO ACCESSION DOCUMENT
Signed as a deed by [NEW OBLIGOR] acting by a )
director and its secretary/two directors )
)
Director
Secretary/Director
THE PARENT
[Name]
BY: ..........................
for itself and as agent
for and on behalf of
the Existing Borrowers and the
Existing Guarantors
THE FACILITY AGENT
[Name]
BY: ..........................
for itself and as Facility Agent
on behalf of the Lenders
-165-
THE SECURITY AGENT
[Name]
BY: ..........................
for itself and as Security Agent
on behalf of the Lenders
-166-
SCHEDULE 8
MANDATORY COST FORMULAE
1. The Mandatory Cost is an addition to the interest rate to compensate
Lenders for the cost of compliance with (a) the requirements of the Bank
of England and/or the Financial Services Authority (or, in either case,
any other authority which replaces all or any of its functions) or (b)
the requirements of the European Central Bank.
2. On the first day of each Interest Period (or as soon as possible
thereafter) the Facility Agent shall calculate, as a percentage rate, a
rate (the "ADDITIONAL COST RATE") for each Lender, in accordance with the
paragraphs set out below. The Mandatory Cost will be calculated by the
Facility Agent as a weighted average of the Lenders' Additional Cost
Rates (weighted in proportion to the percentage participation of each
Lender in the relevant Advance) and will be expressed as a percentage
rate per annum.
3. The Additional Cost Rate for any Lender lending from a Facility Office in
a Participating Member State will be the percentage notified by that
Lender to the Facility Agent. This percentage will be certified by that
Lender in its notice to the Facility Agent to be its reasonable
determination of the cost (expressed as a percentage of that Lender's
participation in all Advances made from that Facility Office) of
complying with the minimum reserve requirements of the European Central
Bank in respect of loans made from that Facility Office.
4. The Additional Cost Rate for any Lender lending from a Facility Office in
the United Kingdom will be calculated by the Facility Agent as follows:
(a) in relation to a sterling Advance:
AB + C(B-D) + E x 0.01
---------------------- per cent per annum
100 - (A + C)
(b) in relation to an Advance in any currency other than sterling:
E x 0.01
-------- per cent per annum.
300
Where:
A is the percentage of Eligible Liabilities (assuming these to be in
excess of any stated minimum) which that Lender is from time to
time required to maintain as an interest free cash ratio deposit
with the Bank of England to comply with cash ratio requirements.
-167-
B is the percentage rate of interest (excluding the Margin and the
Mandatory Cost and, if the Advance is an amount subject to default
interest under clause 8.4 (Default Interest), the additional rate
of interest specified in clause 8.4 (Default Interest)) payable
for the relevant Interest Period on the Advance.
C is the percentage (if any) of Eligible Liabilities which that
Lender is required from time to time to maintain as interest
bearing Special Deposits with the Bank of England.
D is the percentage rate per annum payable by the Bank of England to
the Facility Agent on interest bearing Special Deposits.
E is designed to compensate Lenders for amounts payable under the
Fees Rules and is calculated by the Facility Agent as being the
average of the most recent rates of charge supplied by the
Reference Banks to the Facility Agent pursuant to paragraph 7
below and expressed in pounds per (pound)1,000,000.
5. For the purposes of this Schedule:
(a) "ELIGIBLE LIABILITIES" and "SPECIAL DEPOSITS" have the meanings
given to them from time to time under or pursuant to the Bank of
England Act 1998 or (as may be appropriate) by the Bank of
England;
(b) "FEES RULES" means the rules on periodic fees contained in the FSA
Supervision Manual or such other law or regulation as may be in
force from time to time in respect of the payment of fees for the
acceptance of deposits;
(c) "FEE TARIFFS" means the fee tariffs specified in the Fees Rules
under the activity group A.1 Deposit acceptors (ignoring any
minimum fee or zero rated fee required pursuant to the Fees Rules
but taking into account any applicable discount rate); and
(d) "TARIFF BASE" has the meaning given to it in, and will be
calculated in accordance with, the Fees Rules.
(e) "REFERENCE BANKS" means the principal London offices of o, o and o
or such other banks as may be appointed by the Facility Agent in
consultation with the Parent.
6. In application of the above formulae, A, B, C and D will be included in
the formulae as percentages (i.e. 5 per cent. will be included in the
formula as 5 and not as 0.05). A negative result obtained by subtracting
D from B shall be taken as zero. The resulting figures shall be rounded
to four decimal places.
-168-
7. If requested by the Facility Agent, each Reference Bank shall, as soon as
practicable after publication by the Financial Services Authority, supply
to the Facility Agent, the rate of charge payable by that Reference Bank
to the Financial Services Authority pursuant to the Fees Rules in respect
of the relevant financial year of the Financial Services Authority
(calculated for this purpose by that Reference Bank as being the average
of the Fee Tariffs applicable to that Reference Bank for that financial
year) and expressed in pounds per (pound)1,000,000 of the Tariff Base of
that Reference Bank.
8. Each Lender shall supply any information required by the Facility Agent
for the purpose of calculating its Additional Cost Rate. In particular,
but without limitation, each Lender shall supply the following
information on or prior to the date on which it becomes a Lender:
(a) the jurisdiction of its Facility Office; and
(b) any other information that the Facility Agent may reasonably
require for such purpose.
Each Lender shall promptly notify the Facility Agent of any change to the
information provided by it pursuant to this paragraph.
9. The percentages of each Lender for the purpose of A and C above and the
rates of charge of each Reference Bank for the purpose of E above shall
be determined by the Facility Agent based upon the information supplied
to it pursuant to paragraphs 7 and 8 above and on the assumption that,
unless a Lender notifies the Facility Agent to the contrary, each
Lender's obligations in relation to cash ratio deposits and Special
Deposits are the same as those of a typical bank from its jurisdiction of
incorporation with a Facility Office in the same jurisdiction as its
Facility Office.
10. The Facility Agent shall have no liability to any person if such
determination results in an Additional Cost Rate which over or under
compensates any Lender and shall be entitled to assume that the
information provided by any Lender or Reference Bank pursuant to
paragraphs 3, 7 and 8 above is true and correct in all respects.
11. The Facility Agent shall distribute the additional amounts received as a
result of the Mandatory Cost to the Lenders on the basis of the
Additional Cost Rate for each Lender based on the information provided by
each Lender and each Reference Bank pursuant to paragraphs 3, 7 and 8
above.
12. Any determination by the Facility Agent pursuant to this Schedule in
relation to a formula, the Mandatory Cost, an Additional Cost Rate or any
amount payable to a Lender shall, in the absence of manifest error, be
conclusive and binding on all parties to this agreement.
13. The Facility Agent may from time to time, after consultation with the
Parent and the Lenders, determine and notify to all parties to this
agreement any amendments which are required to be made to this schedule
in order to comply with any change in law, regulation or any requirements
from time to time imposed by the Bank of England, the Financial Services
Authority or the European Central Bank (or, in any case, any other
authority which replaces all or any of its functions) and any such
determination shall, in the absence of manifest error, be conclusive and
binding on all parties to this agreement.
-169-
SCHEDULE 9
OBLIGORS
PART 1 - INITIAL OBLIGORS
INITIAL OBLIGOR SECURITY DOCUMENT
Parent Debenture
FSHC Investments Debenture
FSHC Holdco Debenture
Jersey Holdco (a) Guernsey Law Share Pledge
(b) Guernsey Law charge over cash
(c) Debenture
Jersey Bidco (a) Debenture
(b) Guernsey Law charge over cash
UK Holdco (a) Debenture
(b) US Law Share Pledge Agreement in relation to the membership
rights in US LLC
US LLC US Law Security and Pledge Agreement
US Bidco US Law Security and Pledge Agreement
Four Seasons Group Limited Debenture
-170-
PART 2 - TARGET COMPANIES
------------------------------------------- --------------------- ------------- ---------------------------------------
COMPANY PLACE OF REGISTERED SECURITY DOCUMENT
INCORPORATION NUMBER
------------------------------------------- --------------------- ------------- ---------------------------------------
------------------------------------------- --------------------- ------------- ---------------------------------------
Alliance Care (Dales Homes) Limited England and Wales 3691542 Debenture
------------------------------------------- --------------------- ------------- ---------------------------------------
Alliance Care (Woodside) Limited England and Wales 3683399 Debenture
------------------------------------------- --------------------- ------------- ---------------------------------------
Forebank Limited Scotland SC157072 Debenture
------------------------------------------- --------------------- ------------- ---------------------------------------
▇▇▇▇▇ House Limited England and Wales 3230907 Debenture
------------------------------------------- --------------------- ------------- ---------------------------------------
Meadowvale Care Limited England and Wales 3408575 Debenture
------------------------------------------- --------------------- ------------- ---------------------------------------
Nickle Investments Limited Jersey 62407 (a) Security Interest Agreement
over Receivables
(b) Security Interest Agreement
over Cash
------------------------------------------- --------------------- ------------- ---------------------------------------
Omega (UK) Limited England and Wales 3074331 Debenture
------------------------------------------- --------------------- ------------- ---------------------------------------
PH Developments Limited England and Wales 2670384 Debenture
------------------------------------------- --------------------- ------------- ---------------------------------------
PH Homes Limited England and Wales 2003672 Debenture
------------------------------------------- --------------------- ------------- ---------------------------------------
PH Property Company Limited England and Wales 3255711 Debenture
------------------------------------------- --------------------- ------------- ---------------------------------------
▇▇▇ (▇▇▇▇) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (a) Security Interest Agreement
over Receivables,
(b) Security Interest Agreement
over Cash
------------------------------------------- --------------------- ------------- ---------------------------------------
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (a) Security Interest Agreement
over Receivables
(b) Security Interest Agreement
over Cash
------------------------------------------- --------------------- ------------- ---------------------------------------
PHF Reversions No.3 Limited Jersey 72831 (a) Security Interest Agreements
over Receivables
(b) Security Interest Agreement
over Cash
(c) Judicial Hypothec
(d) Debenture
------------------------------------------- --------------------- ------------- ---------------------------------------
PHF Securities No.3 Limited Jersey 72851 (a) Security Interest Agreement
over Receivables
(b) Security Interest Agreement
over Cash
(c) Judicial Hypothec
(d) Debenture
------------------------------------------- --------------------- ------------- ---------------------------------------
Principal Healthcare Finance Limited Jersey 62304 (a) Security Interest Agreement
over Receivables
(b) Security Interest Agreement
over Cash
(c) Security Interest Agreement
over Subsidiary Shares
(d) English law Share Pledge
over Subsidiary Shares
(e) Debenture
------------------------------------------- --------------------- ------------- ---------------------------------------
Principal Healthcare Finance Limited England and Wales 3608335 Debenture
------------------------------------------- --------------------- ------------- ---------------------------------------
Principal Healthcare Plc England and Wales 3326678 Debenture
------------------------------------------- --------------------- ------------- ---------------------------------------
Omega Worldwide, Inc. United States, N/A (a) Security and Pledge
------------------------------------------- --------------------- ------------- ---------------------------------------
-171-
------------------------------------------- --------------------- ------------- ---------------------------------------
Maryland Agreement
(b) English law Share Pledge
over Subsidiary Shares
------------------------------------------- --------------------- ------------- ---------------------------------------
Tamaris Care Properties Limited England and Wales 3538492 Debenture
------------------------------------------- --------------------- ------------- ---------------------------------------
Tamaris Healthcare (NI) Limited ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ law Debenture
------------------------------------------- --------------------- ------------- ---------------------------------------
Tamcare Limited England and Wales 3725605 Debenture
------------------------------------------- --------------------- ------------- ---------------------------------------
Tameng Care Limited England and Wales 3538499 Debenture
------------------------------------------- --------------------- ------------- ---------------------------------------
Tamulst Care Limited England and Wales 3558522 Debenture
------------------------------------------- --------------------- ------------- ---------------------------------------
-172-
PART 3 - KEY PROPERTIES
FREEHOLD PROPERTIES
---------- --------------------------------------------- -------------------------- --------------------------
NO. BRIEF DESCRIPTION OF PROPERTY FREEHOLD TITLE NO. CHARGING COMPANY
---------- --------------------------------------------- -------------------------- --------------------------
▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ HS223255 PHF Reversions No. ▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
---------- --------------------------------------------- -------------------------- --------------------------
2 Westroyd Lodge and House Ticklow Lane LT233002 PHF Reversions ▇▇. ▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
---------- --------------------------------------------- -------------------------- --------------------------
3 Manor View and Church View ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ PHF Reversions ▇▇. ▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
---------- --------------------------------------------- -------------------------- --------------------------
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ PHF Reversions ▇▇. ▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
---------- --------------------------------------------- -------------------------- --------------------------
▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ NK232149 ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
---------- --------------------------------------------- -------------------------- --------------------------
6 Dussindale Park ▇▇▇▇ ▇▇▇▇▇▇▇ Close ▇▇▇▇▇▇ NK152766 PHF Reversions ▇▇. ▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
---------- --------------------------------------------- -------------------------- --------------------------
7 The Hawthorns ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
---------- --------------------------------------------- -------------------------- --------------------------
8 Heath House 150/152 ▇▇▇▇▇▇ Road Norwich NK27414, ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ NK19472,
NK10899
---------- --------------------------------------------- -------------------------- --------------------------
9 ▇▇▇▇ ▇▇▇▇▇▇▇ Court ▇▇▇▇ ▇▇▇▇▇▇▇ Close NK188542 PHF Reversions No. ▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
---------- --------------------------------------------- -------------------------- --------------------------
10 Woodland ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ PHF Reversions ▇▇. ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
---------- --------------------------------------------- -------------------------- --------------------------
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ K610891 PHF Reversions ▇▇. ▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇
---------- --------------------------------------------- -------------------------- --------------------------
-173-
---------- --------------------------------------------- -------------------------- --------------------------
12 Sea View ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ Jersey Target
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇
---------- --------------------------------------------- -------------------------- --------------------------
13 ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 35 Beaconsfield K801744 Jersey ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇
---------- --------------------------------------------- -------------------------- --------------------------
▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ 28 Blenheim Road Deal K369249 Jersey Target
Kent ▇▇▇▇ ▇▇▇
---------- --------------------------------------------- -------------------------- --------------------------
▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Thorne SYK260349 PHF Reversions No. ▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
---------- --------------------------------------------- -------------------------- --------------------------
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, SYK114630, PHF Reversions ▇▇. ▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ SYK217080
---------- --------------------------------------------- -------------------------- --------------------------
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Wyndthorpe Hall and SYK197296 PHF Reversions ▇▇. ▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
---------- --------------------------------------------- -------------------------- --------------------------
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ LA479911 ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
---------- --------------------------------------------- -------------------------- --------------------------
▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
---------- --------------------------------------------- -------------------------- --------------------------
20 Winlaton Care Village (including ▇▇▇▇▇▇▇ TY199185 Jersey Target
Court, The Hollies, The Orchards, The
Evergreens, Woodlands) Pinewoods
Winlanton Tyne & Wear NE21 6JY
---------- --------------------------------------------- -------------------------- --------------------------
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ DU129340, DU138177, ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ DU127403
---------- --------------------------------------------- -------------------------- --------------------------
22 ▇▇▇▇▇▇▇▇ ▇▇-▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ DU136937 Jersey Target
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
---------- --------------------------------------------- -------------------------- --------------------------
23 Granville ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ CE40310 Jersey Target
County ▇▇▇▇▇▇ ▇▇▇▇ 8ND
---------- --------------------------------------------- -------------------------- --------------------------
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ (previously The Priory) CE110696 Jersey Target
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
---------- --------------------------------------------- -------------------------- --------------------------
-174-
---------- --------------------------------------------- -------------------------- -----------------------------
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ (▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇) CE81607 Jersey Target
▇▇▇▇▇▇▇▇▇ View ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
---------- --------------------------------------------- -------------------------- -----------------------------
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇ MS369194 Jersey Target
---------- --------------------------------------------- -------------------------- -----------------------------
27 ▇▇▇▇▇▇▇▇▇▇ Care Centre Wantage Road BK84629, Jersey Target
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ BK316303
---------- --------------------------------------------- -------------------------- -----------------------------
28 ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ Reversions No. 3
---------- --------------------------------------------- -------------------------- -----------------------------
29 Rosewood ▇▇-▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ Reversions No. 3
MS48592
---------- --------------------------------------------- -------------------------- -----------------------------
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ PHF Reversions ▇▇. ▇
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
---------- --------------------------------------------- -------------------------- -----------------------------
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
---------- --------------------------------------------- -------------------------- -----------------------------
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, PHF Reversions ▇▇. ▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ HP227529
---------- --------------------------------------------- -------------------------- -----------------------------
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Woking SY621458 PHF Reversions ▇▇. ▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
---------- --------------------------------------------- -------------------------- -----------------------------
34 St ▇▇▇▇▇▇▇▇ ▇▇▇▇ Foundry Lane LA862363 PHF Reversions ▇▇. ▇
▇▇▇▇▇▇-▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇
---------- --------------------------------------------- -------------------------- -----------------------------
▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ de l'Isle St N/A PHF Reversions No. 3
▇▇▇▇▇▇▇ Jersey JE3 8BF
---------- --------------------------------------------- -------------------------- -----------------------------
36 St Catherines's Nursing Home Queen Street GM546365 Tameng Care Limited
Horwich ▇▇▇▇▇▇
---------- --------------------------------------------- -------------------------- -----------------------------
LEASEHOLD PROPERTIES
---------- -------------------------- ------------------ ------------------------------ -------------------------
NO. BRIEF DESCRIPTION OF TITLE NO. OF DATE AND PARTIES TO LEASE CHARGING COMPANY (I.E.
PROPERTY LEASEHOLD TENANT UNDER LEASES)
INTEREST
---------- -------------------------- ------------------ ------------------------------ -------------------------
▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ PHF Reversions No. 3 (1) PHF Securities No. ▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ PHF Securities No. 3 (2)
East Riding DN14 6AJ 7 January 1999
---------- -------------------------- ------------------ ------------------------------ -------------------------
2 Westroyd Lodge and LT317943 PHF Reversions No. 3 (1) PHF Securities No. 3
---------- -------------------------- ------------------ ------------------------------ -------------------------
-175-
---------- -------------------------- ------------------ ------------------------------ -------------------------
House Ticklow Lane PHF Securities No. 3 (2)
Shepshed 7 October 1999
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
---------- -------------------------- ------------------ ------------------------------ -------------------------
3 Manor View and Church SYK414332 PHF Reversions No. 3 (1) PHF Securities ▇▇. ▇
▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ Securities No. 3 (2)
Hatfield South 5 November 1999
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
---------- -------------------------- ------------------ ------------------------------ -------------------------
4 Carleton House Rectory NK243219 PHF Reversions No. 3 (1) PHF Securities No. 3
Road East Carleton PHF Securities No. 3 (2)
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ 15 December 1999
8HT
---------- -------------------------- ------------------ ------------------------------ -------------------------
▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ Reversions No. 3 (1) PHF Securities No. 3
Road Wymondham PHF Securities No. 3 (2)
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ 28 March 2000
---------- -------------------------- ------------------ ------------------------------ -------------------------
6 Dussindale ▇▇▇▇ ▇▇▇▇ NK236583 PHF Reversions No. 3 (1) PHF Securities No. 3
▇▇▇▇▇▇▇ Close ▇▇▇▇▇▇ St PHF Securities No. 3 (2)
▇▇▇▇▇▇ Norwich 26 July 1999
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
---------- -------------------------- ------------------ ------------------------------ -------------------------
7 The Hawthorns 270 NK236581 PHF Reversions No. 3 (1) PHF Securities No. 3
▇▇▇▇▇▇▇ Road Norwich PHF Securities No. 3 (2)
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ 26 July 1999
---------- -------------------------- ------------------ ------------------------------ -------------------------
▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ PHF Reversions No. 3 (1) PHF Securities No. 3
▇▇▇▇▇▇▇ Close ▇▇▇▇▇▇ St PHF Securities No. 3 (2)
▇▇▇▇▇▇ Norwich 26 July 1999
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
---------- -------------------------- ------------------ ------------------------------ -------------------------
9 Woodland ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ PHF Reversions No. 3 (1) PHF Securities No. 3
Road Hellesdon PHF Securities No. 3 (2)
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ 3 August 1999
---------- -------------------------- ------------------ ------------------------------ -------------------------
10 Birkin Lodge Camden K801488 PHF Reversions No. 3 (1) PHF Securities ▇▇. ▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇ (▇)
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ 3 August 1999
▇▇▇ ▇▇▇
---------- -------------------------- ------------------ ------------------------------ -------------------------
▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇ SYK406992 PHF Reversions No. 3 (1) PHF Securities ▇▇. ▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇ (▇)
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 16 April 1999
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
---------- -------------------------- ------------------ ------------------------------ -------------------------
12 Parklands ▇▇▇▇▇▇▇ SYK406991 PHF Reversions No. 3 (1) PHF Securities ▇▇. ▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇ (▇)
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 16 April 1999
---------- -------------------------- ------------------ ------------------------------ -------------------------
-176-
---------- -------------------------- ------------------ ------------------------------ -------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
---------- -------------------------- ------------------ ------------------------------ -------------------------
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and SYK406993 PHF Reversions No. 3 (1) PHF Securities No. 3
Wyndthorpe Hall and PHF Securities ▇▇. ▇ (▇)
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ 16 April 1999
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
---------- -------------------------- ------------------ ------------------------------ -------------------------
14 Palace House 460 LA857176 PHF Reversions No. 3 (1) PHF Securities No. 3
Padiham Road Burnley PHF Securities No. 3 (2)
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ 6 December 1999
---------- -------------------------- ------------------ ------------------------------ -------------------------
15 The Grange Keighley LA857173 PHF Reversions No. 3 (1) PHF Securities ▇▇. ▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ PHF Securities No. 3 (2)
▇▇▇ ▇▇▇ 6 December 1999
---------- -------------------------- ------------------ ------------------------------ -------------------------
16 ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ 113 MS430620 PHF Reversions No. 3 (1) PHF Securities No. 3
Sussex Road PR8 6AF PHF Securities No. 3 (2)
24 March 2000
---------- -------------------------- ------------------ ------------------------------ -------------------------
▇▇ ▇▇▇▇▇▇▇▇ ▇▇-▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ PHF Reversions No. 3 (1) PHF Securities No. 3
Avenue PR8 6EL PHF Securities No. 3 (2)
24 March 2000
---------- -------------------------- ------------------ ------------------------------ -------------------------
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ Reversions No. 3 (1) PHF Securities No. 3
Eccleshall PHF Securities No. 3 (2)
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ 23 August 1999
---------- -------------------------- ------------------ ------------------------------ -------------------------
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ PHF Reversions No. 3 (1) PHF Securities ▇▇. ▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇ (▇)
▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ 23 August 1999
---------- -------------------------- ------------------ ------------------------------ -------------------------
20 ▇▇▇▇▇▇ Lodge 139 Stakes SH6623 PHF Reversions No. 3 (1) PHF Securities No. 3
Road Purbrook PHF Securities No. 3 (2)
▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ 18 May 2000
---------- -------------------------- ------------------ ------------------------------ -------------------------
21 Horsell Lodge SY698537 PHF Reversions No. 3 (1) PHF Securities No. 3
▇▇▇▇▇▇▇▇▇▇ Hill Woking PHF Securities No. 3 (2)
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ 15 September 2000
---------- -------------------------- ------------------ ------------------------------ -------------------------
22 St ▇▇▇▇▇▇▇▇ ▇▇▇▇ LA882531 PHF Reversions No. 3 (1) PHF Securities ▇▇. ▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇ (▇)
▇▇▇▇▇▇-▇▇-▇▇▇▇ ▇▇ January 2001
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
---------- -------------------------- ------------------ ------------------------------ -------------------------
23 Hawthorn House 16 N/A 30 July 1936 PHF Reversions No. ▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
---------- -------------------------- ------------------ ------------------------------ -------------------------
24 St Catherine's Nursing GM790033 Tamaris Care Properties Tameng Care Limited
---------- -------------------------- ------------------ ------------------------------ -------------------------
-177-
---------- -------------------------- ------------------ ------------------------------ -------------------------
Home Queen Street Limited (1)
Horwich ▇▇▇▇▇▇ Tameng Care Limited (2)
Tamaris Plc (3)
24 June 1998
---------- -------------------------- ------------------ ------------------------------ -------------------------
▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇/▇ PHF Securities ▇▇. ▇
▇▇ ▇'▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
---------- -------------------------- ------------------ ------------------------------ -------------------------
-178-
PART 4 - AUSTRALIAN GROUP
COMPANY PLACE OF INCORPORATION REGISTERED NUMBER
Principal Healthcare Finance No.2 Pty Limited Australia 090 007 926
Principal Healthcare Finance Pty Limited Australia 069 875 476
PHF No.1 Management Pty Limited Australia 086 801 041
PHF No.3 Management Pty Limited Australia 086 801 023
Beheer-en-Beleggingsmaats Chappij Dilava B.V. Netherlands N/A
Beheer-en-Beleggingsmaats Chappij Rocla B.V. Netherlands N/A
PHF No.2 Pty Limited Australia 082 747 288
PHF No.1 Pty Limited Australia ▇▇▇ ▇▇▇ ▇▇▇
Omega (Australia) Pty Limited Australia 082 747 331
Principal Healthcare Finance Unit Trust No.3 Australia N/A
Principal Healthcare Finance Unit Trust No.4 Australia N/A
Principal Healthcare Finance Unit Trust No.1 Australia N/A
Principal Healthcare Finance Unit Trust No.2 Australia N/A
Principal Healthcare Finance Trust Australia N/A
Principal Healthcare Finance Trust No.2 Australia N/A
Principal Healthcare Finance (NZ) Limited ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
Principal Healthcare Finance No.3 Pty Limited Australia 090 007 999
-179-
SCHEDULE 10
CONSENTS
------------------------------------------------------------ ---------------------------------------------------------
Consent/Approval Required Timing
------------------------------------------------------------ ---------------------------------------------------------
The waiting periods under the Australian Foreign To be completed prior to the First US Merger.
Acquisitions and Takeovers ▇▇▇ ▇▇▇▇ applicable to the
consummation of the First US Merger have expired or a
notice is issued by or on behalf of the Australian
Treasurer to the effect that he has no objection to the
consummation of the First US Merger.
------------------------------------------------------------ ---------------------------------------------------------
The requirements of the US Securities Exchange Act of Determination to be made prior to the First US Merger.
1934, as amended, relating to the Proxy Statement, if
applicable, and the US Offer are met.
------------------------------------------------------------ ---------------------------------------------------------
Approval of the First US Merger and the Merger Agreement Meeting to be held prior to the First US Merger.
by the stockholders of the US Target, if applicable.(6)
------------------------------------------------------------ ---------------------------------------------------------
----------
(6) In the event more than 50% and less than 90% of the outstanding shares
are tendered in the tender offer, a Proxy Statement would need to be
filed with the SEC and mailed to the US Target shareholders and a meeting
would need to be held for the shareholders to vote on the First US
Merger.
-180-
SIGNATORIES TO THE CREDIT AGREEMENT
THE PARENT
FOUR SEASONS HEALTH CARE LIMITED
By: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
NOTICE DETAILS
Address: Four Seasons Health Care Limited
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Facsimile: 020 7240 9594
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Copied to:
Address: Four Seasons Health Care Limited
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Facsimile: 01625 417801
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
BORROWER
FOUR SEASONS HEALTH CARE HOLDINGS PLC
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NOTICE DETAILS
As per Four Seasons Health Care Limited
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GUARANTORS
FOUR SEASONS HEALTH CARE LIMITED
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NOTICE DETAILS
As above
FOUR SEASONS HEALTH CARE INVESTMENTS LIMITED
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NOTICE DETAILS
As per Four Seasons Health Care Limited
FOUR SEASONS HEALTH CARE HOLDINGS PLC
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NOTICE DETAILS
As per Four Seasons Health Care Limited
PRINCIPAL HEALTHCARE FINANCE HOLDINGS (GUERNSEY) LIMITED
By: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Address: Principal Healthcare Finance Holdings (Guernsey) Limited
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Trafalgar Court
Les Banques
Guernsey
Facsimile: 01481 219 843
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
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PRINCIPAL HEALTHCARE FINANCE INVESTMENTS (GUERNSEY) LIMITED
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NOTICE DETAILS
As per Principal Healthcare Finance Holdings (Guernsey) Limited
DELTA I ACQUISITION, INC
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NOTICE DETAILS
Address: ▇▇ ▇▇▇ ▇▇▇
Trafalgar Court
Les Banques
Guernsey
Facsimile: 01481 219 843
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
FOUR SEASONS HEALTH CARE (CAPITAL) LIMITED
By: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
NOTICE DETAILS
As per Four Seasons Health Care Limited
DELTA I ACQUISITION LLC
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NOTICE DETAILS
As per Delta I Acquisition, Inc.
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FOUR SEASONS GROUP LIMITED
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NOTICE DETAILS
Address: Four Seasons Group Limited
Saddle Mews Nursing Home
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Facsimile: 01625 417801
Attention: The Company Secretary
Copied to:
Address: Four Seasons Health Care Limited
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Facsimile: 020 7240 9594
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Address: Four Seasons Health Care Limited
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Facsimile: 01625 417801
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
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THE MANDATED LEAD ARRANGER
BARCLAYS BANK PLC
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NOTICE DETAILS
Address: ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Facsimile: 020 7699 2770
Attention: ▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇▇
ORIGINAL TERM LENDER, CASH BRIDGE LENDER
AND REVOLVING LENDER
BARCLAYS BANK PLC
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
NOTICE DETAILS
Address: ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Facsimile: 020 7699 2770
Attention: ▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇▇
THE FACILITY AGENT AND SECURITY AGENT
BARCLAYS BANK PLC
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
NOTICE DETAILS
Address: Agency Division
Barclays Capital
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Facsimile: 020 7773 4893
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
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