1
▇▇▇▇▇▇▇▇ CHANCE LIMITED LIABILITY PARTNERSHIP
Exhibit (b)
Execution Copy
MISYS PLC
as Original Borrower
▇.▇. ▇▇▇▇▇▇ PLC
LLOYDS TSB CAPITAL MARKETS
as Arrangers
LLOYDS TSB CAPITAL MARKETS
as Agent
and
OTHERS
US$700,000,000 364 DAY
MULTICURRENCY REVOLVING FACILITY AGREEMENT
WITH TERM OUT OPTION
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CONTENTS
CLAUSE PAGE
1. Definitions And Interpretation..........................................1
2. The Facility...........................................................15
3. Purpose................................................................15
4. Conditions Of Utilisation..............................................16
5. Utilisation Of Revolving Facility......................................18
6. Optional Currencies....................................................19
7. Term Out Option........................................................21
8. Repayment..............................................................23
9. Prepayment And Cancellation............................................23
10. Interest...............................................................25
11. Interest Periods.......................................................25
12. Changes To The Calculation Of Interest.................................27
13. Fees...................................................................28
14. Tax Gross Up And Indemnities...........................................29
15. Increased Costs........................................................33
16. Other Indemnities......................................................34
17. Mitigation By The Lenders..............................................35
18. Costs And Expenses.....................................................35
19. Guarantee And Indemnity................................................36
20. Representations........................................................40
21. Information Undertakings...............................................44
22. Financial Covenants....................................................46
23. General Undertakings...................................................49
24. Events Of Default......................................................57
25. Changes To The Lenders.................................................62
26. Changes To The Obligors................................................65
27. Role Of The Agent And The Arrangers....................................67
28. Conduct Of Business By The Finance Parties.............................71
29. Sharing Among The Lenders..............................................72
30. Payment Mechanics......................................................74
31. Set-Off................................................................76
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32. Notices................................................................76
33. Calculations And Certificates..........................................78
34. Partial Invalidity.....................................................78
35. Remedies And Waivers...................................................78
36. Amendments And Waivers.................................................78
37. Counterparts...........................................................79
38. Governing Law..........................................................80
39. Enforcement............................................................80
Schedule 1 ORIGINAL PARTIES..................................................81
Schedule 2 CONDITIONS PRECEDENT..............................................83
Schedule 3 REQUESTS..........................................................87
Schedule 4 MANDATORY COST FORMULAE...........................................90
Schedule 5 FORM OF TRANSFER CERTIFICATES.....................................93
Schedule 6 FORM OF ACCESSION LETTER..........................................99
Schedule 7 FORM OF RESIGNATION LETTER.......................................100
Schedule 8 FORM OF COMPLIANCE CERTIFICATE...................................101
Schedule 9 LMA FORM OF CONFIDENTIALITY UNDERTAKING..........................103
Schedule 10 TIMETABLES......................................................107
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THIS AGREEMENT is dated June 2001 and made between:
1. MISYS PLC, a company incorporated in England and Wales with company
number 1360027 (the "ORIGINAL BORROWER");
2. THE COMPANIES listed in Part I of Schedule 1 (Original Parties) as
original guarantors (the "ORIGINAL GUARANTORS");
3. ▇.▇. ▇▇▇▇▇▇ PLC and LLOYDS TSB BANK PLC trading as LLOYDS TSB CAPITAL
MARKETS (the "ARRANGERS");
4. THE FINANCIAL INSTITUTIONS listed in Part II of Schedule 1 (Original
Parties) as original lenders (the "ORIGINAL LENDERS"); and
5. LLOYDS TSB BANK PLC trading as LLOYDS TSB CAPITAL MARKETS as agent of
the Lenders (the "AGENT").
IT IS AGREED as follows:
SECTION 1
INTERPRETATION
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"ACCESSION LETTER" means a document substantially in the form set out
in Schedule 6 (Form of Accession Letter) or in any other form agreed
between the Original Borrower and the Agent.
"ACQUISITION" means the Sunshine Acquisition or the Derwent
Acquisition.
"ADDITIONAL BORROWER" means a company which becomes an Additional
Borrower in accordance with Clause 26 (Changes to the Obligors).
"ADDITIONAL GUARANTOR" means a company which becomes an Additional
Guarantor in accordance with Clause 26 (Changes to the Obligors).
"ADDITIONAL OBLIGOR" means an Additional Borrower or an Additional
Guarantor.
"AFFILIATE" means, in relation to any person, a Subsidiary of that
person or a Holding Company of that person or any other Subsidiary of
that Holding Company.
"AGENT'S SPOT RATE OF EXCHANGE" means the Agent's spot rate of exchange
for the purchase of the relevant currency with the Base Currency in the
London foreign exchange market at or about 11.00 a.m. on a particular
day.
"AUTHORISATION" means an authorisation, consent, approval, resolution,
licence, exemption, filing or registration.
5
"AVAILABILITY PERIOD" means, in relation to the Revolving Facility, the period
from and including the date of this Agreement to and including the date falling
one Month prior to the Revolving Facility Termination Date.
"AVAILABLE REVOLVING COMMITMENT" means a Lender's Revolving Commitment minus:
1.1 the Base Currency Amount of its participation in any outstanding
Revolving Loans; and
1.2 in relation to any proposed Utilisation of the Revolving Facility, the
Base Currency Amount of its participation in any Revolving Loans that
are due to be made on or before the proposed Utilisation Date,
other than that Lender's participation in any Revolving Loans that are due to be
repaid or prepaid on or before the proposed Utilisation Date.
"AVAILABLE REVOLVING FACILITY" means the aggregate for the time being of each
Lender's Available Revolving Commitment.
"BASE CURRENCY" means dollars.
"BASE CURRENCY AMOUNT" means:
1.3 in relation to a Revolving Loan, the amount specified in the
Utilisation Request delivered by a Borrower for that Revolving Loan
(or, if the amount requested is not denominated in the Base Currency,
that amount converted into the Base Currency at the Agent's Spot Rate
of Exchange on the date which is three Business Days before the
Utilisation Date or, if later, on the date the Agent receives the
Utilisation Request) adjusted to reflect any repayment or prepayment of
that Revolving Loan; and
1.4 in relation to a Term Loan, the Base Currency Amount of the Revolving
Loan that was converted into that Term Loan as specified in the
Conversion Notice delivered by the Original Borrower (or, if the
Revolving Loan that was converted into that Term Loan was not
denominated in the Base Currency, the amount of that Revolving Loan
converted into the Base Currency at the Agent's Spot Rate of Exchange
on the Utilisation Date) adjusted to reflect any repayment (other than
a repayment arising from a change of currency) prepayment,
consolidation or division of that Term Loan.
"BORROWER" means the Original Borrower or an Additional Borrower unless it has
ceased to be a Borrower in accordance with Clause 26 (Changes to the Obligors).
"BREAK COSTS" means the amount (if any) by which:
1.5 the interest which a Lender should have received for the period from
the date of receipt of all or any part of its participation in a Loan
or Unpaid Sum to the last day of the current Interest Period in respect
of that Loan or Unpaid Sum, had the principal amount or Unpaid Sum
received been paid on the last day of that Interest Period;
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exceeds:
1.6 the amount which that Lender would be able to obtain by placing an
amount equal to the principal amount or Unpaid Sum received by it on
deposit with a leading bank in the Relevant Interbank Market for a
period starting on the Business Day following receipt or recovery and
ending on the last day of the current Interest Period.
"BUSINESS DAY" means a day (other than a Saturday or Sunday) on which banks are
open for general business in London, New York and:
1.7 (in relation to any date for payment or purchase of a currency other
than euro) the principal financial centre of the country of that
currency; or
1.8 (in relation to any date for payment or purchase of euro) any TARGET
Day.
"CERTAIN FUNDS PERIOD" means the period commencing on the date of this
Agreement, and ending on the earlier of the date:
1.9 falling 4 Months after the date of the last Offer to be made;
1.10 on which both Offers have been withdrawn or have lapsed; and
1.11 falling 6 Months after the date of this Agreement.
"CERTAIN FUNDS EVENT OF DEFAULT" means any circumstance constituting an Event of
Default under Clause 24.1 (Non-payment), Clause 24.4 (Misrepresentation)
relating only to a Certain Funds Period Repeating Representation, and if that
Certain Funds Period Repeating Representation relates to a member of the Group
other than the Original Borrower, only to the extent that its breach has a
Material Adverse Effect, Clause 24.6 (Insolvency), Clause 24.7 (Winding-up),
Clause 24.8 (Creditors' process), Clause 24.9 (Analogous events), Clause 24.11
(Unlawfulness) or Clause 24.13 (Repudiation).
"CERTAIN FUNDS REPEATING REPRESENTATIONS" means the representations set out in
each of Clause 20.1 (Status), Clause 20.2 (Binding obligations), Clause 20.3
(Non-conflict with other obligations), Clause 20.4 (Power and authority), Clause
20.5 (Validity and admissibility in evidence), Clause 20.6 (Governing law and
enforcement) and Clause 20.11 (Pari passu ranking).
"CODE" means, at any date, the United States Internal Revenue Code of 1986, and
the regulations promulgated and rulings issued under it, all as the same may be
in effect at such date.
"COMMITMENT" means, in relation to a Lender:
1.12 prior to the Revolving Facility Termination Date, its Revolving
Commitment; and
1.13 on or after the Revolving Facility Termination Date, its Term
Commitment.
"COMPLIANCE CERTIFICATE" means a certificate substantially in the form set out
in Schedule 8 (Form of Compliance Certificate).
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"CONFIDENTIALITY UNDERTAKING" means a confidentiality undertaking substantially
in the form set out in Schedule 9 (LMA Form of Confidentiality Undertaking) or
in any other form agreed between the Original Borrower and the Agent.
"CONVERSION NOTICE" means a notice substantially in the form set out in Part III
of Schedule 3 (Requests).
"DEFAULT" means an Event of Default or any event or circumstance specified in
Clause 24 (Events of Default) which would (with the expiry of a grace period,
the giving of notice, the making of any determination under the Finance
Documents or any combination of any of the foregoing) be an Event of Default.
"DERWENT ACQUISITION" means the acquisition of the issued shares of DBS
Management plc (including any shares of DBS Management plc issued or to be
issued whilst the Offer to purchase the shares remains open).
"ENVIRONMENTAL CLAIM" means any claim, proceeding or investigation by any person
in respect of any Environmental Law.
"ENVIRONMENTAL LAW" means any applicable law in any jurisdiction in which any
member of the Group conducts business which relates to the pollution or
protection of the environment or harm to or the protection of human health.
"ENVIRONMENTAL PERMITS" means any permit, licence, consent, approval and other
authorisation and the filing of any notification, report or assessment required
under any Environmental Law for the operation of the business of any member of
the Group conducted on or from the properties owned or used by the relevant
member of the Group.
"ERISA" means, at any date, the United States Employee Retirement Income
Security Act of 1974, and the regulations promulgated and rulings issued under
it, all as the same may be in effect at such date.
"ERISA AFFILIATE" means, in relation to the Original Borrower, any person (as
defined in section 3(9) of ERISA) which together with the Original Borrower, is
treated as a "SINGLE EMPLOYER" under sections 414(b), (c), (m) or (o) of the
Code.
"EVENT OF DEFAULT" means any event or circumstance specified as such in Clause
24 (Events of Default).
"FACILITY" means:
1.14 prior to the Revolving Facility Termination Date, the Revolving
Facility; and
1.15 on or after the Revolving Facility Termination Date, the Term Facility.
"FACILITY OFFICE" means the office or offices notified by a Lender to the Agent
in writing on or before the date it becomes a Lender (or, following that date,
by not less than five Business Days' written notice) as the office or offices
through which it will perform its obligations under this Agreement.
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"FEE LETTER" means any letter or letters dated on or about the date of this
Agreement between the Arrangers and the Original Borrower (or the Agent and the
Original Borrower) setting out any of the fees referred to in Clause 13 (Fees).
"FINANCE DOCUMENT" means this Agreement, any Fee Letter, any Accession Letter
and any other document designated as such by the Agent and the Original
Borrower.
"FINANCE PARTY" means the Agent, an Arranger or a Lender.
"FINANCIAL INDEBTEDNESS" means any indebtedness for or in respect of:
1.16 moneys borrowed;
1.17 any amount raised by acceptance under any acceptance credit facility;
1.18 any amount raised pursuant to any note purchase facility or the issue
of bonds, notes, debentures, loan stock or any similar instrument;
1.19 the amount of any liability in respect of any lease or hire purchase
contract which would, in accordance with GAAP, be treated as a finance
or capital lease;
1.20 receivables sold or discounted (other than any receivables to the
extent they are sold or discounted on a non-recourse basis);
1.21 any amount raised under any other transaction (including any forward
sale or purchase agreement) having the commercial effect of a borrowing
other than a purchase agreement for assets or services (i) acquired in
the ordinary course of trading, or (ii) under which the purchase price
is payable 90 days or less after the supply of those goods or services;
1.22 any derivative transaction entered into in connection with protection
against or benefit from fluctuation in any rate or price (and, when
calculating the value of any derivative transaction, only the marked to
market value shall be taken into account);
1.23 any counter-indemnity obligation in respect of a guarantee, indemnity,
bond, standby or documentary letter of credit or any other instrument
issued by a bank or financial institution;
1.24 any amount raised by the issue of redeemable shares; or
1.25 (without double counting) the amount of any liability in respect of any
guarantee or indemnity for any of the items referred to in paragraphs
(a) to (i) above,
excluding any indebtedness owed by one member of the Group to another.
A certificate signed by both the Original Borrower and the Agent specifying that
certain indebtedness is, or is not, Financial Indebtedness shall be conclusive.
"GAAP" means, in relation to an Obligor, generally accepted accounting
principles in its jurisdiction of incorporation.
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"GROUP" means, at any time, the Original Borrower and its Subsidiaries.
"GUARANTOR" means an Original Guarantor or an Additional Guarantor, unless it
has ceased to be a Guarantor in accordance with Clause 26 (Changes to the
Obligors).
"HOLDING COMPANY" means, in relation to a company, any other company in respect
of which it is a Subsidiary.
"INFORMATION MEMORANDUM" means the document concerning the Original Obligors
which, at the Original Borrower's request and on its behalf, is to be prepared
in relation to this transaction, approved by the Original Borrower and
distributed by the Arrangers prior to the Syndication Date in connection with
syndication.
"INTEREST PERIOD" means:
1.26 in relation to a Loan, each period determined in accordance with Clause
11 (Interest Periods); and
1.27 in relation to an Unpaid Sum, each period determined in accordance with
Clause 10.3 (Default interest).
"LENDER" means:
1.28 any Original Lender; and
1.29 any bank or financial institution which has become a Party in
accordance with Clause 25 (Changes to the Lenders),
which in each case has not ceased to be a Party in accordance with the terms of
this Agreement.
"LIBOR" means, in relation to any Loan:
1.30 the applicable Screen Rate; or
1.31 (if no Screen Rate is available for the currency or Interest Period of
that Loan) the arithmetic mean of the rates (rounded upwards to four
decimal places) as supplied to the Agent at its request quoted by the
Reference Banks to leading banks in the London interbank market,
as of the Specified Time on the Quotation Day for the offering of deposits in
the currency of that Loan and for a period comparable to the Interest Period for
that Loan.
"LOAN" means a Revolving Loan or a Term Loan.
"LMA" means the Loan Market Association.
"MAJORITY LENDERS" means:
1.32 if there are no Loans outstanding, a Lender or Lenders whose
Commitments aggregate more than 66 2/3 per cent. of the Total
Commitments (or, if the Total
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Commitments have been reduced to zero, aggregated more than 66 2/3 per
cent. of the Total Commitments immediately prior to the reduction); or
1.33 at any other time, a Lender or Lenders whose participations in the
Loans then outstanding aggregate more than 66 2/3 per cent. of all the
Loans then outstanding.
"MANDATORY COST" means the percentage rate per annum calculated by the Agent in
accordance with Schedule 4 (Mandatory Cost formulae).
"MARGIN" means, prior to the delivery of the Compliance Certificate in relation
to the Relevant Period ending 30 November 2001 pursuant to Clause 21.2
(Compliance Certificate), 0.80 per cent. per annum, and thereafter the rate per
annum determined by reference to the table below:
RATIO OF NET BORROWINGS TO ADJUSTED EBITDA MARGIN
(%)
Greater than or equal to 2.5:1 0.80
Greater than or equal to 2.0:1 but less than 2.5:1 0.65
Less than 2.0:1 0.50
For the purpose of determining the Margin:
1.1 each of "ADJUSTED EBITDA", "NET BORROWINGS" and "RELEVANT PERIOD" has
the meaning given to it in Clause 22.1 (Financial definitions);
1.2 the ratio of Net Borrowings to Adjusted EBITDA shall be determined for
each Relevant Period by reference to each set of financial statements
and/or each Compliance Certificate delivered to the Agent pursuant to
Clause 21.2 (Compliance Certificate); and
1.3 any adjustment to the Margin shall take effect from the date falling
five Business Days after receipt by the Agent of the Compliance
Certificate and financial statements for that Relevant Period delivered
to it pursuant to Clause 21.2 (Compliance Certificate)).
"MARGIN REGULATIONS" means Regulations T, U and X of the Board of Governors of
the Federal Reserve System of the United States (or any successor).
"MARGIN STOCK" means margin stock or "MARGIN SECURITY" within the meaning of the
Margin Regulations.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on:
1.4 the business, assets or financial condition of the Group taken as a
whole; or
1.5 the ability of the Obligors taken as a whole to perform their payment
obligations under the Finance Documents.
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"MONTH" means a period starting on one day in a calendar month and ending on the
numerically corresponding day in the next calendar month, except that:
1.6 (subject to paragraph (c) below) if the numerically corresponding day
is not a Business Day, that period shall end on the next Business Day
in that calendar month in which that period is to end if there is one,
or if there is not, on the immediately preceding Business Day;
1.7 if there is no numerically corresponding day in the calendar month in
which that period is to end, that period shall end on the last Business
Day in that calendar month; and
1.8 if an Interest Period begins on the last Business Day of a calendar
month, that Interest Period shall end on the last Business Day in the
calendar month in which that Interest Period is to end.
The above rules will only apply to the last Month of any period.
"OBLIGOR" means a Borrower or a Guarantor.
"OFFER" means the proposed offer to be made by the Original Borrower or one of
its Subsidiaries to acquire issued share capital of the company which is the
subject of that Acquisition which is not already owned by the Original Borrower,
as such offer may be amended, renewed or waived from time to time.
"OPTIONAL CURRENCY" means a currency (other than the Base Currency) which
complies with the conditions set out in Clause 4.3 (Conditions relating to
Optional Currencies).
"ORIGINAL FINANCIAL STATEMENTS" means:
1.9 in relation to the Original Borrower, its audited consolidated
financial statements for its financial year ended 31 May 2000; and
1.10 in relation to each Additional Obligor, its financial statements
delivered by it pursuant to Part II of Schedule 2 (Conditions
precedent), if any, or the first set of audited financial statements
delivered pursuant to Clause 21.1 (Financial statements).
"ORIGINAL OBLIGOR" means the Original Borrower or an Original Guarantor.
"PARTICIPATING MEMBER STATE" means any member state of the European Communities
that adopts or has adopted the euro as its lawful currency in accordance with
legislation of the European Union relating to European Monetary Union.
"PARTY" means a party to this Agreement and includes its successors in title,
permitted assigns and permitted transferees.
"PRINCIPAL SUBSIDIARY" means, at any time, a Subsidiary of the Original Borrower
whose gross revenues or operating profits represent at least five per cent. of
the consolidated gross revenues or operating profits of the Group.
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For the purpose of determining whether or not a member of the Group is a
Principal Subsidiary:
1.11 in the case of a member of the Group which itself has Subsidiaries, the
calculation shall be made by comparing the consolidated gross revenues
or operating profits of it and its Subsidiaries to those of the Group;
1.12 revenues which arise from transactions between members of the Group and
which would be eliminated in the consolidated accounts of the Group
shall be excluded;
1.13 the gross revenues or operating profits of a member of the Group shall
be calculated by reference to its Original Financial Statements or its
most recent financial statements delivered pursuant to Clause 21.1
(Financial statements);
1.14 the gross revenues or operating profits of the Group shall be
calculated by reference to the Original Financial Statements of the
Original Borrower or its most recent consolidated audited financial
statements delivered pursuant to Clause 21.1 (Financial statements),
adjusted as appropriate to reflect the gross revenues or operating
profits of any person which has become or ceased to be a member of the
Group after the end of the financial period to which those accounts
relate;
1.15 on a Principal Subsidiary transferring all or substantially all of its
assets to another member of the Group, the transferor (if it is not the
Holding Company of the transferee) shall cease to be a Principal
Subsidiary and (if the transferee is not the Original Borrower or a
Principal Subsidiary) the transferee shall become a Principal
Subsidiary;
1.16 a member of the Group (if not already a Principal Subsidiary) shall
become a Principal Subsidiary on completion of any other intra-Group
transfer or reorganisation if it would fulfil any of the tests in the
first paragraph of this definition, were all relevant accounts to be
prepared as at the completion of that transfer or reorganisation on the
basis of the Original Financial Statements of the Original Borrower or
its most recent consolidated audited financial statements delivered
pursuant to Clause 21.1 (Financial statements), adjusted as appropriate
to reflect the matters referred to in paragraph (d) above and to
reflect all such transfers or reorganisations after the date of those
then latest audited consolidated accounts of the Group;
1.17 except as provided in paragraph (e) above, once a person has become a
Principal Subsidiary, it shall remain one until it has been
demonstrated to the reasonable satisfaction of the Majority Lenders
that it has ceased to fulfil the requirements of this definition; and
1.18 a certificate signed by a director of the Original Borrower that a
member of the Group is or is not a Principal Subsidiary or certifying
any adjustment referred to in paragraph (d) above shall, in the absence
of manifest error, be conclusive and binding on all Parties.
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"QUALIFYING LENDER" has the meaning given to it in Clause 14 (Tax gross-up and
indemnities).
"QUOTATION DAY" means, in relation to any period for which an interest rate is
to be determined:
1.19 (if the currency is sterling) the first day of that period;
1.20 (if the currency is euro) two TARGET Days before the first day of that
period; or
1.21 (for any other currency) two Business Days before the first day of that
period,
unless market practice differs in the Relevant Interbank Market for a currency,
in which case the Quotation Day for that currency will be determined by the
Agent in accordance with market practice in the Relevant Interbank Market (and
if quotations would normally be given by leading banks in the Relevant Interbank
Market on more than one day, the Quotation Day will be the last of those days).
"REFERENCE BANKS" means, in relation to LIBOR, the principal London offices of
The Chase Manhattan Bank and Lloyds TSB Bank Plc, and after the Syndication
Date, at least one other Lender which shall be agreed between the Agent and the
Original Borrower.
"RELEVANT INTERBANK MARKET" means the London interbank market.
"REPEATING REPRESENTATIONS" means each of the representations set out in Clauses
20.1 (Status) to 20.6 (Governing law and enforcement), and subject to paragraph
(a) of Clause 20 (Representations), Clause 20.16 (US matters).
"RESIGNATION LETTER" means a letter substantially in the form set out in
Schedule 7 (Form of Resignation Letter).
"REVOLVING COMMITMENT" means:
1.22 in relation to an Original Lender, the amount in the Base Currency set
opposite its name under the heading "REVOLVING COMMITMENT" in Part II
of Schedule 1 (Original Parties) and the amount of any other Revolving
Commitment transferred to it under this Agreement; and
1.23 in relation to any other Lender, the amount in the Base Currency 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 364 day revolving loan facility made available
under this Agreement as described in Clause 2 (The Facility).
"REVOLVING FACILITY TERMINATION DATE" means the date falling 364 days after the
date of this Agreement.
"REVOLVING LOAN" means a loan made or to be made under the Revolving Facility or
the principal amount outstanding for the time being of that loan.
14
"ROLLOVER LOAN" means one or more Revolving Loans:
1.24 made or to be made on the same day that a maturing Revolving Loan is
due to be repaid;
1.25 the aggregate amount of which is equal to or less than the maturing
Revolving Loan;
1.26 in the same currency as the maturing Revolving Loan (unless it arose as
a result of the operation of Clause 6.2 (Unavailability of a
Currency)); and
1.27 made or to be made to the same Borrower for the purpose of refinancing
a maturing Revolving Loan.
"SCREEN RATE" means, in relation to LIBOR, the British Bankers' Association
Interest Settlement Rate for the relevant currency and period and displayed on
the appropriate page of the Reuters screen. If the agreed page is replaced or
service ceases to be available, the Agent may specify another page or service
displaying the appropriate rate after consultation with the Original Borrower
and the Lenders.
"SECURITY" means a mortgage, charge, pledge, lien or other security interest
securing any obligation of any person or any other agreement or arrangement
having a similar effect.
"SELECTION NOTICE" means a notice substantially in the form set out in Part II
of Schedule 3 (Requests).
"SPECIFIED TIME" means a time determined in accordance with Schedule 10
(Timetables).
"SUBSIDIARY" means, in relation to any company, a company:
1.28 which is controlled, directly or indirectly, by the first mentioned
company;
1.29 more than half the issued share capital of which is beneficially owned,
directly or indirectly by the first mentioned company; or
1.30 which is a Subsidiary of another Subsidiary of the first mentioned
company,
and for this purpose, a company or corporation shall be treated as being
controlled by another if that other company or corporation is able to direct its
affairs and/or to control the composition of its board of directors or
equivalent body.
"SUNSHINE ACQUISITION" means the acquisition of the issued shares of Sunquest
Information Systems, Inc. (including any shares of (and American Depositary
Shares representing shares of) Sunquest Information Systems, Inc. issued or to
be issued whilst the Offer to purchase the shares remains open) and the
subsequent merger of a Subsidiary of the Original Borrower with and into
Sunquest Information Systems, Inc.
"SYNDICATION DATE" means the date falling 30 days after the date of this
Agreement or such later date as may be agreed between the Arrangers and the
Original Borrower.
15
"TARGET" means Trans-European Automated Real-time Gross Settlement Express
Transfer payment system.
"TARGET DAY" means any day on which TARGET is open for the settlement of
payments in euro.
"TAX" means any tax, levy, impost, duty or other charge or withholding of a
similar nature (including any penalty or interest payable in connection with any
failure to pay or any delay in paying any of the same).
"TAXES ACT" means the Income and Corporation ▇▇▇▇▇ ▇▇▇ ▇▇▇▇.
"TERM COMMITMENT" means:
1.31 in relation to a Lender party to this Agreement on the Revolving
Facility Termination Date, the aggregate principal amount in Base
Currency of that Lender's participation in each Revolving Loan
converted to a Term Loan pursuant to Clause 7 (Term Out Option) and the
amount of any other Term Commitment transferred to it under this
Agreement; and
1.32 in relation to any other Lender, the amount in the Base Currency of any
Term Commitment transferred to it under this Agreement,
to the extent not cancelled, reduced or transferred by it under this Agreement.
"TERM FACILITY" means the term loan facility made available under this Agreement
as described in Clause 2 (The Facility).
"TERM FACILITY TERMINATION DATE" means the date falling 12 Months after the
Revolving Facility Termination Date.
"TERM LOAN" means a loan made or to be made under the Term Facility or the
principal amount outstanding for the time being of that loan.
"TERM OUT OPTION" means the right granted to the Original Borrower in Clause 7.1
(Grant of Term Out Option) to request (at its sole discretion) that one or more
of the Revolving Loans outstanding on the Revolving Facility Termination Date be
converted into one or more Term Loans.
"TOTAL COMMITMENTS" means:
1.33 prior to the Revolving Facility Termination Date, the Total Revolving
Commitments; or
1.34 on or after the Revolving Facility Termination Date, the Total Term
Commitments.
"TOTAL REVOLVING COMMITMENTS" means the aggregate of the Revolving Commitments
being $700,000,000 at the date of this Agreement.
"TOTAL TERM COMMITMENTS" means the aggregate of the Term Commitments.
16
"TRANSFER CERTIFICATE" means a certificate substantially in one of the forms set
out in Schedule 5 (Form of Transfer Certificates) or any other form agreed
between the Agent and the Original Borrower.
"TRANSFER DATE" means, in relation to a transfer, the later of:
1.35 the proposed Transfer Date specified in the Transfer Certificate; and
1.36 the date on which the Agent executes the Transfer Certificate.
"UNPAID SUM" means any sum due and payable but unpaid by an Obligor under the
Finance Documents.
"UTILISATION" means a utilisation of the Facility.
"UTILISATION DATE" means:
1.37 in relation to a Revolving Loan, the date on which that Revolving Loan
is to be made; and
1.38 in relation to a Term Loan, the Revolving Facility Termination Date.
"UTILISATION REQUEST" means a notice substantially in the form set out in Part I
of Schedule 3 (Requests).
"VAT" means value added tax as provided for in the Value Added Tax ▇▇▇ ▇▇▇▇ and
any other tax of a similar nature.
1.2 CONSTRUCTION
1.1 Unless a contrary indication appears a reference in this
Agreement to:
1.1.1 "ASSETS" includes present and future properties,
revenues and rights of every description;
1.1.2 a "FINANCE DOCUMENT" or any other agreement or
instrument is a reference to that Finance Document or
other agreement or instrument as amended or novated;
1.1.3 "INDEBTEDNESS" includes any obligation (whether
incurred as principal or as surety) for the payment
or repayment of money, whether present or future,
actual or contingent;
1.1.4 a "PERSON" includes any person, firm, company,
corporation, government, state or agency of a state
or any association, trust or partnership (whether or
not having separate legal personality) of two or more
of the foregoing;
1.1.5 a "REGULATION" includes any regulation, rule,
official directive, request or guideline (whether or
not having the force of law) of any governmental,
intergovernmental or supranational body, agency,
department or regulatory, self-regulatory or other
authority or organisation;
17
1.1.6 the "EQUIVALENT" on any date in one currency (the
"FIRST CURRENCY") of an amount denominated in another
currency (the "SECOND CURRENCY") is a reference to
the amount of the first currency which could be
purchased with the amount of the second currency at
the spot rate of exchange quoted by the Agent at or
about 11.00 a.m. on such date for the purchase of the
first currency with the second currency;
1.1.7 a provision of law is a reference to that provision
as amended or re-enacted; and
1.1.8 a time of day is a reference to London time.
1.2 Mentioning anything after "INCLUDE", "INCLUDES" or "INCLUDING"
does not limit what else might be included.
1.3 Where a word or phrase is defined, its other grammatical forms
have a corresponding meaning.
1.4 Section, Clause and Schedule headings are for ease of
reference only.
1.5 Unless a contrary indication appears, a term used in any other
Finance Document or in any notice given under or in connection
with any Finance Document has the same meaning in that Finance
Document or notice as in this Agreement.
1.6 A Default (other than an Event of Default) is "CONTINUING" if
it has not been remedied or waived and an Event of Default or
Certain Funds Event of Default is "CONTINUING" if it has not
been remedied or waived.
1.3 CURRENCY SYMBOLS AND DEFINITIONS
A reference to:
1.1 "$" and "DOLLARS" is a reference to the lawful currency of the
United States of America;
1.2 "L" and "STERLING" is a reference to the lawful currency of
the United Kingdom; and
1.3 "EUR" and "EURO" is a reference to the single currency unit of
the Participating Member States.
1.4 THIRD PARTY RIGHTS
1.1 Except as provided in a Finance Document, the terms of a
Finance Document may be enforced only by a party to it and the
operation of the Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇
is excluded.
1.2 Notwithstanding any provision of any Finance Document, the
Parties to a Finance Document do not require the consent of
any third party to rescind or vary any Finance Document at any
time.
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SECTION 2
THE FACILITY
2. THE FACILITY
2.1 THE FACILITY
Subject to the terms of this Agreement, the Lenders make available to
the Borrowers:
1.1 a multicurrency revolving loan facility in a principal
aggregate amount equal to the Total Revolving Commitments; and
1.2 if the Term Out Option is exercised, a multicurrency term loan
facility in a principal aggregate amount equal to the Total
Term Commitments.
2.2 LENDERS' RIGHTS AND OBLIGATIONS
1.1 The obligations of each Lender under the Finance Documents are
several. Failure by a Lender to perform its obligations under
the Finance Documents does not affect the obligations of any
other Party under the Finance Documents. No Finance Party is
responsible for the obligations of any other Finance Party
under the Finance Documents.
1.2 The rights of each Lender under or in connection with the
Finance Documents are separate and independent rights and any
debt arising under the Finance Documents to a Lender from an
Obligor shall be a separate and independent debt.
1.3 A Finance Party may, except as otherwise stated in the Finance
Documents, separately enforce its rights under the Finance
Documents.
2.3 NO LENDING THROUGH US
1.1 No Lender shall provide credit under the Finance Documents
through an office located in the United States of America.
1.2 Each Lender shall take all reasonable steps to ensure that any
extension of credit under the Finance Documents is made and
maintained "outside the United States" as that phrase is used
in section 221.6(c) of Regulation U of the Board of Governors
of the Federal Reserve System of the United States and in
Regulation X Board of Governors of the Federal Reserve System
of the United States.
3. PURPOSE
3.1 PURPOSE
Each Borrower shall apply all amounts borrowed by it under the Facility
towards:
1.1 its general corporate purposes;
1.2 repayment of existing Financial Indebtedness; and/or
1.3 acquisitions permitted by the Finance Documents and the
Acquisitions and any liabilities and costs connected with
them.
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3.2 MONITORING
No Finance Party is bound to monitor or verify the application of any
amount borrowed pursuant to this Agreement.
4. CONDITIONS OF UTILISATION
4.1 INITIAL CONDITIONS PRECEDENT
No Borrower may deliver a Utilisation Request unless the Agent has
received all of the documents and other evidence listed in Part I of
Schedule 2 (Conditions precedent) in form and substance satisfactory to
the Agent. The Agent shall notify the Original Borrower and the Lenders
promptly upon being so satisfied.
4.2 FURTHER CONDITIONS PRECEDENT
1.1 Subject to Clause 4.5 (Certain funds), the Lenders will only
be obliged to comply with Clause 5.4 (Lenders' participation
in Revolving Loans) and the Original Borrower will only be
entitled to deliver a Conversion Notice under Clause 7.2
(Conversion Notice) if on each of the date of the Utilisation
Request and the proposed Utilisation Date (in the case of a
Revolving Loan) or on each of the date of the Conversion
Notice and the Revolving Facility Termination Date (in the
case of a Term Loan):
1.1.1 in relation to a Rollover Loan, no Event of Default
is continuing or would result from the proposed Loan,
and, in relation to any other Loan, no Default is
continuing or would result from the proposed Loan;
and
1.1.2 the Repeating Representations to be made by each
Obligor are true in all material respects.
1.2 The Lenders will only be obliged to comply with Clause 6.3
(Change of currency) if, on the first day of an Interest
Period, no Default is continuing or would result from the
change of currency and the Repeating Representations to be
made by each Obligor are true in all material respects.
4.3 CONDITIONS RELATING TO OPTIONAL CURRENCIES
1.1 A currency will constitute an Optional Currency in relation to
a Loan if:
1.1.1 it is readily available in the amount required and
freely convertible into the Base Currency in the
Relevant Interbank Market on the Quotation Day and
the Utilisation Date for that Loan; and
1.1.2 it has been approved by the Agent (acting on the
instructions of all the Lenders) on or prior to
receipt by the Agent of the relevant Utilisation
Request for that Loan except that no such approval
shall be required for that Loan if it is to be
denominated in sterling or euro.
1.2 If the Agent has received a written request from the Original
Borrower for a currency to be approved under paragraph (a)(ii)
above, the Agent will confirm to the Original Borrower by the
Specified Time:
1.2.1 whether or not the Lenders have granted their
approval; and
20
1.2.2 if approval has been granted, the minimum amount
(and, if required, whole multiples) for any
subsequent Utilisation in that currency.
1.3 If the euro constitutes an Optional Currency at any time, a
Loan will only be made available in the euro unit.
4.4 MAXIMUM NUMBER OF LOANS
1.1 A Borrower may not deliver a Utilisation Request if as a
result of the proposed Utilisation more than 5 Revolving Loans
would be outstanding.
1.2 The Original Borrower may not request that more than 5
Revolving Loans be converted to Term Loans under the Term Out
Option.
1.3 A Borrower may not request that a Term Loan be divided if, as
a result of the proposed division, more than 7 Term Loans
would be outstanding.
1.4 Any Loan made by a single Lender under Clause 6.2
(Unavailability of a currency) shall not be taken into account
in this Clause 4.4.
4.5 CERTAIN FUNDS
In relation to any Revolving Loan requested to be made during the
Certain Funds Period, the Lenders agree that, without prejudice to
Clause 24.18 (Certain Funds Period):
1.1 paragraph (a)(i) of Clause 4.2 (Further conditions precedent)
shall only apply if a Certain Funds Event of Default has
occurred which is continuing; and
1.2 paragraph (a)(ii) of Clause 4.2 (Further conditions precedent)
shall only apply to the Certain Funds Repeating
Representations.
21
SECTION 3
UTILISATION
5. UTILISATION OF REVOLVING FACILITY
5.1 DELIVERY OF A UTILISATION REQUEST
A Borrower may utilise the Revolving Facility by delivery to the Agent
of a duly completed Utilisation Request not later than the Specified
Time.
5.2 COMPLETION OF A UTILISATION REQUEST
1.1 Each Utilisation Request is irrevocable and will not be
regarded as having been duly completed unless:
1.1.1 the proposed Utilisation Date is a Business Day
within the Availability Period;
1.1.2 the currency and amount of the Utilisation comply
with Clause 5.3 (Currency and amount); and
1.1.3 the proposed Interest Period complies with Clause 11
(Interest Periods).
1.2 Only one Revolving Loan may be requested in each Utilisation
Request.
5.3 CURRENCY AND AMOUNT
1.1 The currency specified in a Utilisation Request must be the
Base Currency or an Optional Currency.
1.2 The amount of the proposed Revolving Loan must be an amount
whose Base Currency Amount is not more than the Available
Revolving Facility and which is:
1.2.1 if the currency selected is the Base Currency, a
minimum of $15,000,000 and a whole multiple of
$5,000,000 (or such other amount as may be agreed
between the Original Borrower and the Agent);
1.2.2 if the currency selected is sterling, a minimum of
L10,000,000 and a whole multiple of L5,000,000 (or
such other amount as may be agreed between the
Original Borrower and the Agent);
1.2.3 if the currency selected is euro, a minimum of EUR
10,000,000 and a whole multiple of EUR 5,000,000 (or
such other amount as may be agreed between the
Original Borrower and the Agent); or
1.2.4 if the currency selected is an Optional Currency
other than sterling or euro, the minimum amount (or a
whole multiple, if required) specified by the Agent
pursuant to paragraph (b)(ii) of Clause 4.3
(Conditions relating to Optional Currencies).
5.4 LENDERS' PARTICIPATION IN REVOLVING LOANS
1.1 If the conditions set out in this Agreement have been met,
each Lender shall make its participation in each Revolving
Loan available through its Facility Office.
22
1.2 The amount of each Lender's participation in each Revolving
Loan will be equal to the proportion borne by its Available
Revolving Commitment to the Available Revolving Facility
immediately prior to making the Revolving Loan.
1.3 The Agent shall notify each Lender of the amount, currency and
the Base Currency Amount of each Revolving Loan at the
Specified Time.
6. OPTIONAL CURRENCIES
6.1 SELECTION OF CURRENCY
1.1 A Borrower (or the Original Borrower on behalf of a Borrower)
shall select the currency of a Loan:
1.1.1 (in the case of a Revolving Loan) in a Utilisation
Request; and
1.1.2 (in the case of a Term Loan) in the Conversion Notice
or a Selection Notice.
1.2 If a Borrower (or the Original Borrower on behalf of a
Borrower) fails to issue a Selection Notice in relation to a
Term Loan, that Term Loan will remain denominated for its next
Interest Period in the same currency in which it is then
outstanding.
1.3 If a Borrower (or the Original Borrower on behalf of a
Borrower) issues a Selection Notice requesting a change of
currency and the first day of the requested Interest Period is
not a Business Day for the new currency, the Agent shall
promptly notify the relevant Borrower and the Lenders and the
Loan will remain in the existing currency (with Interest
Periods running from one Business Day until the next Business
Day) until the next day which is a Business Day for both
currencies, on which day the requested Interest Period will
begin.
6.2 UNAVAILABILITY OF A CURRENCY
If before the Specified Time on the relevant date specified in Schedule
10 (Timetables):
1.1 the Agent has received notice from a Lender that the Optional
Currency requested (unless that Optional Currency is sterling
or euro) is not readily available to it in the amount
required; or
1.2 a Lender notifies the Agent that compliance with its
obligation to participate in a Loan in the proposed Optional
Currency would contravene a law or regulation applicable to
it,
the Agent will give notice to the relevant Borrower to that effect by
the Specified Time on that day. In this event, any Lender that gives
notice pursuant to this Clause 6.2 will be required to participate in
the Loan in the Base Currency (in an amount equal to that Lender's
proportion of the Base Currency Amount or, in respect of a Rollover
Loan, an amount equal to that Lender's proportion of the Base Currency
Amount of the maturing Revolving Loan that is due to be repaid) and its
participation will be treated as a separate Loan denominated in the
Base Currency during that Interest Period.
23
6.3 CHANGE OF CURRENCY
1.1 If a Term Loan is to be denominated in different currencies
during two successive Interest Periods:
1.1.1 if the currency for the second Interest Period is an
Optional Currency, the amount of the Loan in that
Optional Currency will be calculated by the Agent as
the amount of that Optional Currency equal to the
Base Currency Amount of the Loan at the Agent's Spot
Rate of Exchange at the Specified Time;
1.1.2 if the currency for the second Interest Period is the
Base Currency, the amount of the Loan will be equal
to the Base Currency Amount;
1.1.3 (unless the Agent and the relevant Borrower agree
otherwise in accordance with paragraph (b) below) the
Borrower that has borrowed the Term Loan shall repay
it on the last day of the first Interest Period in
the currency in which it was denominated for that
Interest Period; and
1.1.4 (subject to Clause 4.2 (Further conditions
precedent)) the Lenders shall re-advance that term
Loan in the new currency in accordance with Clause
6.5 (Agent's calculations).
1.2 If the Agent and the Borrower that has borrowed the Term Loan
agree, the Agent shall:
1.2.1 apply the amount paid to it by the Lenders pursuant
to paragraph (a)(iv) above (or so much of that amount
as is necessary) in or towards purchase of an amount
in the currency in which the Term Loan is outstanding
for the first Interest Period; and
1.2.2 use the amount it purchases in or towards
satisfaction of the relevant Borrower's obligations
under paragraph (a)(iii) above.
1.3 If the amount purchased by the Agent pursuant to paragraph
(b)(i) above is less than the amount required to be repaid by
the relevant Borrower, the Agent shall promptly notify that
Borrower and that Borrower shall, on the last day of the first
Interest Period, pay an amount to the Agent (in the currency
of the outstanding Term Loan for the first Interest Period)
equal to the difference.
1.4 If any part of the amount paid to the Agent by the Lenders
pursuant to paragraph (a)(iv) above is not needed to purchase
the amount required to be repaid by the relevant Borrower, the
Agent shall promptly notify that Borrower and pay that
Borrower, on the last day of the first Interest Period that
part of that amount (in the new currency).
6.4 SAME OPTIONAL CURRENCY DURING SUCCESSIVE INTEREST PERIODS
1.1 If a Term Loan is to be denominated in the same Optional
Currency during two successive Interest Periods, the Agent
shall calculate the amount of the Term Loan in the Optional
Currency for the second of those Interest Periods (by
calculating the amount of Optional Currency equal to the Base
Currency Amount of that Term
24
Loan at the Agent's Spot Rate of Exchange at the Specified
Time) and (subject to paragraph (b) below):
1.1.1 if the amount calculated is less than the existing
amount of that Term Loan in the Optional Currency
during the first Interest Period, promptly notify the
Borrower that has borrowed that Term Loan and that
Borrower shall pay, on the last day of the first
Interest Period, an amount equal to the difference;
or
1.1.2 if the amount calculated is more than the existing
amount of that Term Loan in the Optional Currency
during the first Interest Period, promptly notify
each Lender and, if no Event of Default is
continuing, each Lender shall, on the last day of the
first Interest Period, pay its participation in an
amount equal to the difference.
1.2 If the calculation made by the Agent pursuant to paragraph (a)
above shows that the amount of the Term Loan in the Optional
Currency has increased or decreased by less than five per
cent. compared to its Base Currency Amount, no notification
shall be made by the Agent and no payment shall be required
under paragraph (a) above.
6.5 AGENT'S CALCULATIONS
1.1 All calculations made by the Agent pursuant to this Clause 6
will take into account any repayment, prepayment,
consolidation or division of Term Loans to be made on the last
day of the first Interest Period.
1.2 Each Lender's participation in a Loan will, subject to
paragraph (a) above, be determined in accordance with
paragraph (b) of Clause 5.4 (Lenders' participation in
Revolving Loans) in the case of Revolving Loans, and Clause
7.4 (Lenders' participation in Term Loans) in the case of Term
Loans.
7. TERM OUT OPTION
7.1 GRANT OF TERM OUT OPTION
The Lenders grant the Term Out Option to the Original Borrower on the
terms and subject to the conditions of this Agreement.
7.2 CONVERSION NOTICE
The Original Borrower shall be entitled to exercise the Term Out Option
by giving a Conversion Notice to the Agent no more than 30 and no less
than 10 Business Days' prior to the Revolving Facility Termination
Date. Such Conversion Notice shall be irrevocable. The Agent shall
promptly send a copy of the Conversion Notice to each Lender.
7.3 TERM OUT
If:
1.1 the Original Borrower has delivered a Conversion Notice to the
Agent under Clause 7.2 (Conversion Notice); and
1.2 the provisions of Clause 4.2 (Further conditions precedent)
have been satisfied,
25
then on the Revolving Facility Termination Date, each Revolving Loan
referred to in the Conversion Notice shall:
1.3 automatically be converted into a Term Loan to the relevant
Borrower of an amount and in the currency in which that
Revolving Loan was denominated; and
1.4 shall not be repaid on the last day of its Interest Period but
instead shall be repaid on the Term Facility Termination Date.
7.4 LENDERS' PARTICIPATION IN TERM LOANS
Each Lender party to this Agreement on the Revolving Facility
Termination Date shall be deemed to participate through its Facility
Office in each Term Loan made pursuant to this Clause 7 in the same
proportion as it participated in each corresponding Revolving Loan.
7.5 CANCELLATION OF REVOLVING COMMITMENTS
On the Revolving Facility Termination Date, the Revolving Commitment of
each Lender shall be automatically cancelled and reduced to zero.
26
SECTION 4
REPAYMENT, PREPAYMENT AND CANCELLATION
8. REPAYMENT
8.1 REPAYMENT OF REVOLVING LOANS
Each Borrower that has drawn a Revolving Loan that is not being
converted to a Term Loan under Clause 7 (Term Out Option), shall repay
that Revolving Loan in full on the last day of its Interest Period.
8.2 REPAYMENT OF TERM LOANS
Each Borrower that has drawn a Term Loan shall repay that Term Loan in
full on the Term Facility Termination Date.
9. PREPAYMENT AND CANCELLATION
9.1 ILLEGALITY
If it becomes unlawful in any jurisdiction for a Lender to perform any
of its obligations as contemplated by this Agreement or to fund its
participation in any Loan:
1.1 that Lender shall promptly notify the Agent upon becoming
aware of that event;
1.2 upon the Agent notifying the Original Borrower, the Commitment
of that Lender will be immediately cancelled; and
1.3 each Borrower shall repay that Lender's participation in the
Loans made to that Borrower on the last day of the Interest
Period for each Loan occurring after the Agent has notified
the Original Borrower or, if earlier, the date specified by
the Lender in the notice delivered to the Agent (being no
earlier than the last day of any applicable grace period
permitted by law).
9.2 VOLUNTARY CANCELLATION
The Original Borrower may, if it gives the Agent not less than 10
Business Days' (or such shorter period as the Majority Lenders may
agree) prior notice, cancel the whole or any part (being a minimum
amount of $10,000,000 and a whole multiple of $5,000,000) of the
Available Revolving Facility. Any cancellation under this Clause 9.2
shall reduce the Revolving Commitments of the Lenders rateably.
9.3 VOLUNTARY PREPAYMENT OF LOANS
The Borrower to whom a Loan has been made may, if it gives the Agent
not less than 10 Business Days' (or such shorter period as the Majority
Lenders may agree) prior notice, prepay the whole or any part of a Loan
(but, if in part, being an amount that reduces the Base Currency Amount
of the Loan by a minimum amount of $10,000,000 and a whole multiple of
$5,000,000).
9.4 RIGHT OF REPAYMENT AND CANCELLATION IN RELATION TO A SINGLE LENDER
1.1 If:
1.1.1 any sum payable to any Lender by an Obligor is
required to be increased under paragraph (c) of
Clause 14.2 (Tax gross-up); or
27
1.1.2 any Lender claims indemnification from the Original
Borrower under Clause 14.3 (Tax indemnity) or Clause
15.1 (Increased costs),
the Original Borrower may, whilst the circumstance giving rise
to the requirement or indemnification continues, give the
Agent notice of cancellation of the Commitment of that Lender
and its intention to procure the repayment of that Lender's
participation in the Loans.
1.2 On receipt of a notice referred to in paragraph (a) above, the
Commitment of that Lender shall immediately be reduced to
zero.
1.3 On the last day of each Interest Period which ends after the
Original Borrower has given notice under paragraph (a) above
(or, if earlier, the date specified by the Original Borrower
in that notice), each Borrower to whom a Loan is outstanding
shall repay that Lender's participation in that Loan.
9.5 RESTRICTIONS
1.1 Any notice of cancellation or prepayment given by any Party
under this Clause 9 shall be irrevocable and, unless a
contrary indication appears in this Agreement, shall specify
the date or dates upon which the relevant cancellation or
prepayment is to be made and the amount of that cancellation
or prepayment.
1.2 Any prepayment under this Agreement shall be made together
with accrued interest on the amount prepaid and, subject to
any Break Costs, without premium or penalty.
1.3 No Borrower may reborrow any part of the Term Facility which
is prepaid.
1.4 Unless a contrary indication appears in this Agreement, any
part of the Revolving Facility which is prepaid may be
reborrowed in accordance with the terms of this Agreement.
1.5 The Borrowers shall not repay or prepay all or any part of the
Loans or cancel all or any part of the Commitments except at
the times and in the manner expressly provided for in this
Agreement.
1.6 No amount of the Total Commitments cancelled under this
Agreement may be subsequently reinstated.
1.7 If the Agent receives a notice under this Clause 9 it shall
promptly forward a copy of that notice to either the Original
Borrower or the affected Lender, as appropriate.
28
SECTION 5
COSTS OF UTILISATION
10. INTEREST
10.1 CALCULATION OF INTEREST
The rate of interest on each Loan for each Interest Period is the
percentage rate per annum which is the aggregate of the applicable:
1.1 Margin;
1.2 LIBOR; and
1.3 Mandatory Cost, if any.
10.2 PAYMENT OF INTEREST
The Borrower to whom a Loan has been made shall pay accrued interest on
that Loan on the last day of each Interest Period, (and, if the
Interest Period is longer than six Months, on the dates falling at six
Monthly intervals after the first day of the Interest Period).
10.3 DEFAULT INTEREST
1.1 If an Obligor fails to pay any amount payable by it under a
Finance Document on its due date, interest shall accrue on the
overdue amount from the due date up to the date of actual
payment (both before and after judgment) at a rate one per
cent higher than the rate which would have been payable if the
overdue amount had, during the period of non-payment,
constituted a Loan in the currency of the overdue amount for
successive Interest Periods, each of a duration selected by
the Agent (acting reasonably). Any interest accruing under
this Clause 10.3 shall be immediately payable by the Obligor
on demand by the Agent.
1.2 Default interest (if unpaid) arising on an overdue amount will
be compounded with the overdue amount at the end of each
Interest Period applicable to that overdue amount but will
remain immediately due and payable.
10.4 NOTIFICATION OF RATES OF INTEREST
The Agent shall promptly notify the Lenders and the relevant Borrower
of the determination of a rate of interest under this Agreement.
11. INTEREST PERIODS
11.1 SELECTION OF INTEREST PERIODS
1.1 A Borrower (or the Original Borrower on behalf of a Borrower)
may select an Interest Period for a Loan in the Utilisation
Request (in the case of a Revolving Loan) or a Selection
Notice or the Conversion Notice (in the case of a Term Loan)
for that Loan.
1.2 Each Selection Notice for a Term Loan is irrevocable and must
be delivered to the Agent by the Borrower (or the Original
Borrower on behalf of a Borrower) to whom that Term Loan was
made not later than the Specified Time.
29
1.3 If a Borrower (or the Original Borrower) fails to deliver a
Selection Notice to the Agent in accordance with paragraph (b)
above, the relevant Interest Period will, be one Month.
1.4 Subject to this Clause 11, a Borrower (or the Original
Borrower) may select an Interest Period of one, three or six
Months or any other period agreed between the Original
Borrower and the Agent (acting on the instructions of all the
Lenders).
1.5 An Interest Period for a Revolving Loan shall not extend
beyond the Revolving Facility Termination Date and an Interest
Period for a Term Loan shall not extend beyond the Term
Facility Termination Date.
1.6 The first Interest Period for each Term Loan shall start on
the Utilisation Date and each subsequent Interest Period for
that Term Loan shall start on the last day of the immediately
preceding Interest Period.
1.7 A Revolving Loan has one Interest Period only.
1.8 Prior to the Syndication Date, Interest Periods shall be one
month or such other period as the Agent and the relevant
Borrower (or the Original Borrower) may agree.
11.2 NON-BUSINESS DAYS
If an Interest Period would otherwise end on a day which is not a
Business Day, that Interest Period will instead end on the next
Business Day in that calendar month (if there is one) or the preceding
Business Day (if there is not).
11.3 CONSOLIDATION AND DIVISION OF TERM LOANS
1.1 Subject to paragraph (b) below, if two or more Interest
Periods:
1.1.1 relate to Term Loans in the same currency;
1.1.2 end on the same date; and
1.1.3 are made to the same Borrower,
those Term Loans will, unless that Borrower (or the Original
Borrower on its behalf) specifies to the contrary in the
Selection Notice for the next Interest Period, be consolidated
into, and treated as, a single Term Loan on the last day of
the Interest Period.
1.2 Subject to Clause 4.4 (Maximum number of Loans) and Clause 5.3
(Currency and amount), if a Borrower (or the Original Borrower
on its behalf) requests in a Selection Notice that a Term Loan
be divided into two or more Term Loans, that Term Loan will,
on the last day of its Interest Period, be so divided with
Base Currency Amounts specified in that Selection Notice,
being an aggregate Base Currency Amount equal to the Base
Currency Amount of the Term Loan immediately before its
division.
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12. CHANGES TO THE CALCULATION OF INTEREST
12.1 ABSENCE OF QUOTATIONS
Subject to Clause 12.2 (Market disruption), if LIBOR is to be
determined by reference to the Reference Banks but a Reference Bank
does not supply a quotation by the Specified Time on the Quotation Day,
the applicable LIBOR shall be determined on the basis of the quotations
of the remaining Reference Banks.
12.2 MARKET DISRUPTION
1.1 If a Market Disruption Event occurs in relation to a Loan for
any Interest Period, then the rate of interest on each
Lender's share of that Loan for the Interest Period shall be
the rate per annum which is the sum of:
1.1.1 the Margin;
1.1.2 the rate notified to the Agent by that Lender as soon
as practicable and in any event before interest is
due to be paid in respect of that Interest Period, to
be that which expresses as a percentage rate per
annum the cost to that Lender of funding its
participation in that Loan from whatever source it
may reasonably select; and
1.1.3 the Mandatory Cost, if any, applicable to that
Lender's participation in the Loan.
1.2 In this Agreement "MARKET DISRUPTION EVENT" means:
1.2.1 at or about noon on the Quotation Day for the
relevant Interest Period the Screen Rate is not
available and none or only one of the Reference Banks
supplies a rate to the Agent to determine LIBOR for
the relevant currency and Interest Period; or
1.2.2 before close of business in London on the Quotation
Day for the relevant Interest Period, the Agent
receives notifications from a Lender or Lenders
(whose participations in a Loan exceed 35 per cent.
of that Loan) that the cost to it of obtaining
matching deposits in the Relevant Interbank Market
would be in excess of LIBOR.
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12.3 ALTERNATIVE BASIS OF INTEREST OR FUNDING
1.1 If a Market Disruption Event occurs and the Agent or the
Original Borrower so requires, the Agent and the Original
Borrower shall enter into negotiations (for a period of not
more than thirty days) with a view to agreeing a substitute
basis for determining the rate of interest.
1.2 Any alternative basis agreed pursuant to paragraph (a) above
shall, with the prior consent of all the Lenders and the
Original Borrower, be binding on all Parties.
12.4 BREAK COSTS
1.1 Each Borrower shall, within three Business Days of demand by
the Agent on behalf of a Finance Party, pay to the Agent on
behalf of that Finance Party its Break Costs attributable to
all or any part of a Loan or Unpaid Sum being paid by that
Borrower on a day other than the last day of an Interest
Period for that Loan or Unpaid Sum.
1.2 Each Lender shall, as soon as reasonably practicable after a
demand by the Original Borrower, provide a certificate
confirming the amount of its Break Costs for any Interest
Period in which they accrue.
13. FEES
13.1 COMMITMENT FEE
1.1 The Original Borrower shall pay to the Agent (for the account
of each Lender) a fee in the Base Currency computed at the
rate of 0.15 per cent. per annum on that Lender's Available
Revolving Commitment for the Availability Period.
1.2 The accrued commitment fee is payable on the last day of each
successive period of three Months which ends during the
Availability Period, on the last day of the Availability
Period and on the cancelled amount of the relevant Lender's
Commitment at the time the cancellation is effective.
13.2 FRONT END FEE
The Original Borrower shall pay to the Arrangers for distribution
between the Lenders in the manner determined by the Arrangers, a front
end fee in the Base Currency in the amount and at the time agreed in a
Fee Letter.
13.3 AGENCY FEE
The Original Borrower shall pay to the Agent (for its own account) an
agency fee in the amount and at the times agreed in a Fee Letter.
13.4 TERM OUT FEE
If the Term Out Option is exercised, the Original Borrower shall,
within 5 Business Days of the Revolving Facility Termination Date, pay
to the Agent (for the account of each Lender), a term out fee in the
Base Currency computed at the rate of 0.1 per cent. per annum of the
amount of the Term Loans.
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SECTION 6
ADDITIONAL PAYMENT OBLIGATIONS
14. TAX GROSS UP AND INDEMNITIES
14.1 DEFINITIONS
1.1 In this Clause 14:
"EXEMPTION" means the disapplication pursuant to section 349A
of the Taxes Act of an obligation to deduct Tax.
"PROTECTED PARTY" means a Finance Party which is or will be,
for or on account of Tax, subject to any liability or required
to make any payment in relation to a sum received or
receivable (or any sum deemed for the purposes of Tax to be
received or receivable) under a Finance Document.
"QUALIFYING LENDER" means, on the date a payment falls due, a
Lender which is:
1.1.1 beneficially entitled to that payment and is:
1.1.2 a company resident in the United Kingdom for tax
purposes;
1.1.3 a partnership each member of which is a company
resident in the United Kingdom for tax purposes; or
1.1.4 a company not resident in the United Kingdom which
carries on a trade in the United Kingdom through a
branch or agency and which brings into account that
payment in computing its chargeable profits (within
the meaning given by section 11(2) of the Taxes Act),
and has provided to the Original Borrower, and has not
retracted, a Tax Confirmation with respect to itself;
1.1.5 within the charge to United Kingdom corporation tax
as respects that payment and that is a Lender in
respect of an advance made by a person that was a
bank (as defined for the purpose of section 349 of
the Taxes Act in section 840A of the Taxes Act) at
the time that advance was made; or
1.1.6 a Treaty Lender.
"TAX CONFIRMATION" means a confirmation by a Lender that the
person beneficially entitled to a payment under a Finance
Document is either:
1.1.7 a company resident in the United Kingdom or a
partnership each member of which is a company
resident in the United Kingdom; or
1.1.8 a company not resident in the United Kingdom which
carries on a trade through a branch or agency in the
United Kingdom and that payment falls to be brought
into account in computing the chargeable profits of
that company for the purposes of section 11(2) of the
Taxes Act.
33
"TAX CREDIT" means a credit against, relief or remission for,
or repayment of, any Tax.
"TAX DEDUCTION" means a deduction or withholding for or on
account of Tax from a payment under a Finance Document.
"TAX PAYMENT" means an increased payment made by an Obligor to
a Finance Party under Clause 14.2 (Tax gross-up) or a payment
under Clause 14.3 (Tax indemnity).
"TREATY LENDER" means a Lender which is, on the date a payment
falls due, entitled to that payment under a double taxation
agreement in force on that date (subject to the completion of
any necessary procedural formalities) without a Tax Deduction.
"UK NON-BANK LENDER" means a Lender which becomes a Party to
this Agreement after the date of this Agreement and which is
identified as a UK Non-Bank Lender in the relevant Transfer
Certificate.
1.2 In this Clause 14 a reference to "DETERMINES" or "DETERMINED"
means a determination made in the absolute discretion of the
person making the determination.
14.2 TAX GROSS-UP
1.1 Each Obligor shall make all payments to be made by it without
any Tax Deduction, unless a Tax Deduction is required by law.
1.2 The Original Borrower or a Lender shall promptly upon becoming
aware that an Obligor must make a Tax Deduction (or that there
is any change in the rate or the basis of a Tax Deduction)
notify the Agent accordingly. If the Agent receives such
notification from a Lender it shall notify the Original
Borrower and that Obligor.
1.3 If a Tax Deduction is required by law to be made by an Obligor
in one of the circumstances set out in paragraph (d) below,
the amount of the payment due from that Obligor shall be
increased to an amount which (after making any Tax Deduction)
leaves an amount equal to the payment which would have been
due if no Tax Deduction had been required.
1.4 The circumstances referred to in paragraph (c) above are where
a person entitled to the payment:
1.4.1 is the Agent or an Arranger (on its own behalf);
1.4.2 is a Qualifying Lender, unless that Qualifying Lender
is a Treaty Lender and the Obligor making the payment
is able to demonstrate the Tax Deduction is required
to be made as a result of the failure of that
Qualifying Lender to comply with paragraph (g) below;
or
1.4.3 is not or has ceased to be a Qualifying Lender to the
extent that this altered status results from any
change after the date of this Agreement in (or in the
34
interpretation, administration, or application of)
any law or double taxation agreement or any published
practice or published concession of any relevant
taxing authority.
1.5 If an Obligor is required to make a Tax Deduction, that
Obligor shall make that Tax Deduction and any payment required
in connection with that Tax Deduction within the time allowed
and in the minimum amount required by law.
1.6 Within thirty days of making either a Tax Deduction or any
payment required in connection with that Tax Deduction, the
Obligor making that Tax Deduction shall deliver to the Agent
for the Finance Party entitled to the payment evidence
reasonably satisfactory to that Finance Party that the Tax
Deduction has been made or (as applicable) any appropriate
payment paid to the relevant taxing authority.
1.7 A Treaty Lender and each Obligor which makes a payment to
which that Treaty Lender is entitled shall co-operate in
completing any procedural formalities necessary for that
Obligor to obtain authorisation to make that payment without a
Tax Deduction.
1.8 A UK Non-Bank Lender shall:
1.8.1 give a Tax Confirmation to the Original Borrower in
the Transfer Certificate signed by it; and
1.8.2 promptly notify the Original Borrower and the Agent
if there is any change in the position from that set
out in its Tax Confirmation.
1.9 If an Obligor incurs any loss or liability for or on account
of Tax solely as a result of any Tax Confirmation being
incorrect at the time it was made then, unless this is caused
by any change after the date of this Agreement in, or in the
interpretation, administration or application of, any law or
regulation, the Lender must pay to the Obligor an amount equal
to the loss or liability incurred.
14.3 TAX INDEMNITY
1.1 The Original Borrower shall (within three Business Days of
demand by the Agent) pay to a Protected Party an amount equal
to the loss, liability or cost which that Protected Party
determines will be or has been (directly or indirectly)
suffered for or on account of Tax by that Protected Party.
1.2 Paragraph (a) above shall not apply with respect to any Tax
assessed on a Finance Party:
1.2.1 under the law of the jurisdiction in which that
Finance Party is incorporated or, if different, the
jurisdiction (or jurisdictions) in which that Finance
Party is treated as resident for tax purposes; or
1.2.2 under the law of the jurisdiction in which that
Finance Party's Facility Office is located in respect
of amounts received or receivable in that
jurisdiction,
35
if that Tax is imposed on or calculated by reference
to the net income received or receivable (but not any
sum deemed to be received or receivable) by that
Finance Party.
1.3 Paragraph (a) above shall not apply to any Tax assessed on a
Finance Party for which it has been compensated under Clause
14.2 (Tax gross-up) or in respect of which that Finance Party
would be entitled to be so compensated but for the fact that
the circumstances set out in paragraph (d) of that Clause do
not apply.
1.4 A Protected Party making, or intending to make a claim
pursuant to paragraph (a) above shall promptly notify the
Agent of the event which will give, or has given, rise to the
claim, following which the Agent shall notify the Original
Borrower.
1.5 A Protected Party shall, on receiving a payment from an
Obligor under this Clause 14.3, notify the Agent.
14.4 TAX CREDIT
If an Obligor makes a Tax Payment and the relevant Finance Party
determines that:
1.1 a Tax Credit is attributable to that Tax Payment; and
1.2 that Finance Party has obtained, utilised and retained that
Tax Credit,
the Finance Party shall pay an amount to the Obligor which that Finance
Party determines will leave it (after that payment) in the same
after-Tax position as it would have been in had the Tax Payment not
been made by the Obligor.
14.5 STAMP TAXES
The Original Borrower shall pay and, within three Business Days of
demand, indemnify each Finance Party against any cost, loss or
liability that Finance Party incurs in relation to all stamp duty,
registration and other similar Taxes payable in respect of any Finance
Document.
14.6 VALUE ADDED TAX
1.1 All consideration expressed to be payable under a Finance
Document by any Party to a Finance Party shall be deemed to be
exclusive of any VAT. If VAT is chargeable on any supply made
by a Finance Party to any Party in connection with a Finance
Document, that Party shall pay to the Finance Party (in
addition to and at the same time as paying the consideration)
an amount equal to the amount of the VAT.
1.2 Where a Finance Document requires any Party to reimburse a
Finance Party for any costs or expenses, that Party shall also
at the same time pay and indemnify that Finance Party against
all VAT incurred by that Finance Party in respect of the costs
or expenses to the extent that that Finance Party determines
that it is not entitled to repayment or credit in respect of
the VAT.
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15. INCREASED COSTS
15.1 INCREASED COSTS
1.1 Subject to Clause 15.3 (Exceptions), the Original Borrower
shall within three Business Days of a demand by the Agent, pay
for the account of a Finance Party the amount of any Increased
Costs incurred by that Finance Party or any of its Affiliates
as a result of (i) the introduction of or any change in (or in
the interpretation or application of) any law or regulation or
(ii) compliance with any law or regulation made after the date
of this Agreement.
1.2 In this Agreement "INCREASED COSTS" means:
1.2.1 a reduction in the rate of return from the Facility
or on a Finance Party's (or its Affiliate's) overall
capital;
1.2.2 an additional or increased cost; or
1.2.3 a reduction of any amount due and payable under any
Finance Document,
which is incurred or suffered by a Finance Party or any of its
Affiliates to the extent that it is attributable to that
Finance Party having entered into its Commitment or funding or
performing its obligations under any Finance Document.
15.2 INCREASED COST CLAIMS
1.1 A Finance Party intending to make a claim pursuant to Clause
15.1 (Increased costs) shall notify the Agent of the event
giving rise to the claim, following which the Agent shall
promptly notify the Original Borrower.
1.2 Each Finance Party shall, as soon as practicable after a
demand by the Agent, provide a certificate confirming the
amount of its Increased Costs which provides reasonable
details of the calculation of those Increased Costs.
15.3 EXCEPTIONS
1.1 Clause 15.1 (Increased costs) does not apply to the extent any
Increased Cost is:
1.1.1 attributable to a Tax Deduction required by law to be
made by an Obligor;
1.1.2 compensated for by Clause 14.3 (Tax indemnity) (or
would have been compensated for under Clause 14.3
(Tax indemnity) but was not so compensated solely
because the exclusion in paragraph (b) of Clause 14.3
(Tax indemnity) applied);
1.1.3 compensated for by the payment of the Mandatory Cost;
or
1.1.4 attributable to the wilful breach by the relevant
Finance Party or its Affiliates of any law or
regulation.
1.2 In this Clause 15.3, a reference to a "TAX DEDUCTION" has the
same meaning given to the term in Clause 14.1 (Definitions).
37
16. OTHER INDEMNITIES
16.1 CURRENCY INDEMNITY
1.1 If any sum due from an Obligor under the Finance Documents (a
"SUM"), or any order, judgment or award given or made in
relation to a Sum, has to be converted from the currency (the
"FIRST CURRENCY") in which that Sum is payable into another
currency (the "SECOND CURRENCY") for the purpose of:
1.1.1 making or filing a claim or proof against that
Obligor;
1.1.2 obtaining or enforcing an order, judgment or award in
relation to any litigation or arbitration
proceedings, that Obligor shall as an independent
obligation, within three Business Days of demand,
indemnify each Finance Party to whom that Sum is due
against any cost, loss or liability arising out of or
as a result of the conversion including any
discrepancy between (A) the rate of exchange used to
convert that Sum from the First Currency into the
Second Currency and (B) the rate or rates of exchange
available to that person at the time of its receipt
of that Sum.
1.2 Each Obligor waives any right it may have in any jurisdiction
to pay any amount under the Finance Documents in a currency or
currency unit other than that in which it is expressed to be
payable.
16.2 OTHER INDEMNITIES
The Original Borrower shall (or shall procure that an Obligor shall),
within three Business Days of demand, indemnify each Lender against any
cost, loss or liability incurred by that Lender as a result of:
1.1 the occurrence of any Event of Default;
1.2 a failure by an Obligor to pay any amount due under a Finance
Document on its due date, including without limitation, any
cost, loss or liability arising as a result of Clause 29
(Sharing among the Lenders);
1.3 funding, or making arrangements to fund, its participation in
a Loan requested by a Borrower in a Utilisation Request but
not made by reason of the operation of any one or more of the
provisions of this Agreement (other than by reason of default
or negligence by that Lender alone); or
1.4 a Loan (or part of a Loan) not being prepaid in accordance
with a notice of prepayment given by a Borrower or the
Original Borrower.
16.3 INDEMNITY TO THE AGENT
The Original Borrower shall promptly indemnify the Agent against any
cost, loss or liability incurred by the Agent (acting reasonably) as a
result of:
1.1 investigating any event which it reasonably believes is a
Default;
38
1.2 entering into or performing any foreign exchange contract for
the purposes of Clause 6 (Optional Currencies); or
1.3 acting or relying on any notice, request or instruction from
an Obligor which it reasonably believes to be (but which is
not) genuine, correct and appropriately authorised.
17. MITIGATION BY THE LENDERS
17.1 MITIGATION
1.1 Each Finance Party shall, in consultation with the Original
Borrower, take all reasonable steps to mitigate any
circumstances which arise and which would result in any amount
becoming payable under, or cancelled pursuant to, any of
Clause 9.1 (Illegality), Clause 14 (Tax gross-up and
indemnities) or Clause 15 (Increased costs) including (but not
limited to) transferring its rights and obligations under the
Finance Documents to another Affiliate or Facility Office.
1.2 Paragraph (a) above does not in any way limit the obligations
of any Obligor under the Finance Documents.
17.2 LIMITATION OF LIABILITY
1.1 The Original Borrower shall indemnify each Finance Party for
all costs and expenses reasonably incurred by that Finance
Party as a result of steps taken by it under Clause 17.1
(Mitigation).
1.2 A Finance Party is not obliged to take any steps under Clause
17.1 (Mitigation) if, in the opinion of that Finance Party
(acting reasonably), to do so might be prejudicial to it.
18. COSTS AND EXPENSES
18.1 TRANSACTION EXPENSES
The Original Borrower shall promptly on demand pay the Agent and the
Arrangers the amount of all costs and expenses (including legal fees)
reasonably incurred by any of them in connection with the negotiation,
preparation, printing, execution and syndication of:
1.1 this Agreement and any other documents referred to in this
Agreement; and
1.2 any other Finance Documents executed at the request of an
Obligor after the date of this Agreement.
18.2 AMENDMENT COSTS
If:
1.1 an Obligor requests an amendment, waiver or consent; or
1.2 an amendment is required pursuant to Clause 30.9 (Change of
currency),
the Original Borrower shall, within three Business Days of demand,
reimburse the Agent for the amount of all costs and expenses (including
legal fees) reasonably incurred by the Agent in responding to,
evaluating, negotiating or complying with that request or requirement.
39
18.3 ENFORCEMENT COSTS
The Original Borrower shall, within three Business Days of demand, pay
to each Finance Party the amount of all costs and expenses (including
legal fees) incurred by that Finance Party in connection with the
enforcement of, or the preservation of any rights under, any Finance
Document.
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SECTION 7
GUARANTEE
19. GUARANTEE AND INDEMNITY
19.1 GUARANTEE AND INDEMNITY
Each Guarantor irrevocably and unconditionally jointly and severally:
1.1 guarantees to each Finance Party punctual performance by each
Borrower of all that Borrower's obligations under the Finance
Documents;
1.2 undertakes with each Finance Party that whenever a Borrower
does not pay any amount when due under or in connection with
any Finance Document, that Guarantor shall immediately on
demand pay that amount as if it was the principal obligor; and
1.3 indemnifies each Finance Party immediately on demand against
any cost, loss or liability suffered by that Finance Party if
any obligation guaranteed by it is or becomes unenforceable,
invalid or illegal. The amount of the cost, loss or liability
shall be equal to the amount which that Finance Party would
otherwise have been entitled to recover.
19.2 CONTINUING GUARANTEE
This guarantee is a continuing guarantee and will extend to the
ultimate balance of sums payable by any Obligor under the Finance
Documents, regardless of any intermediate payment or discharge in whole
or in part.
19.3 REINSTATEMENT
If any payment by an Obligor or any discharge given by a Finance Party
(whether in respect of the obligations of any Obligor or any security
for those obligations or otherwise) is avoided or reduced as a result
of insolvency or any similar event:
1.1 the liability of each Obligor shall continue as if the
payment, discharge, avoidance or reduction had not occurred;
and
1.2 each Finance Party shall be entitled to recover the value or
amount of that security or payment from each Obligor, as if
the payment, discharge, avoidance or reduction had not
occurred.
19.4 WAIVER OF DEFENCES
The obligations of each Guarantor under this Clause 19 will not be
affected by an act, omission, matter or thing which, but for this
Clause, would reduce, release or prejudice any of its obligations under
this Clause 19 (without limitation and whether or not known to it or
any Finance Party) including:
1.1 any time, waiver or consent granted to, or composition with,
any Obligor or other person;
1.2 the release of any other Obligor or any other person under the
terms of any composition or arrangement with any creditor of
any member of the Group;
41
1.3 the taking, variation, compromise, exchange, renewal or
release of, or refusal or neglect to perfect, take up or
enforce, any rights against, or security over assets of, any
Obligor or other person or any non-presentation or
non-observance of any formality or other requirement in
respect of any instrument or any failure to realise the full
value of any security;
1.4 any incapacity or lack of power, authority or legal
personality of or dissolution or change in the members or
status of an Obligor or any other person;
1.5 any amendment (however fundamental) or replacement of a
Finance Document or any other document or security;
1.6 any unenforceability, illegality or invalidity of any
obligation of any person under any Finance Document or any
other document or security; or
1.7 any insolvency or similar proceedings.
19.5 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 19.
This waiver applies irrespective of any law or any provision of a
Finance Document to the contrary.
19.6 APPROPRIATIONS
Until all amounts which may be or become payable by the Obligors under
or in connection with the Finance Documents have been irrevocably paid
in full, each Finance Party (or any trustee or agent on its behalf)
may:
1.1 refrain from applying or enforcing any other moneys, security
or rights held or received by that Finance Party (or any
trustee or agent on its behalf) in respect of those amounts,
or apply and enforce the same in such manner and order as it
sees fit (whether against those amounts or otherwise) and no
Guarantor shall be entitled to the benefit of the same; and
1.2 hold in an interest-bearing suspense account any moneys
received from any Guarantor or on account of any Guarantor's
liability under this Clause 19 (with interest being credited
to such account).
19.7 DEFERRAL OF GUARANTORS' RIGHTS
Until all amounts which may be or become payable by the Obligors under
or in connection with the Finance Documents have been irrevocably paid
in full and unless the Agent otherwise directs, no Guarantor will
exercise any rights which it may have by reason of performance by it of
its obligations under the Finance Documents:
1.1 to be indemnified by an Obligor;
1.2 to claim any contribution from any other Guarantor of any
Obligor's obligations under the Finance Documents; and/or
42
1.3 to take the benefit (in whole or in part and whether by way of
subrogation or otherwise) of any rights of the Finance Parties
under the Finance Documents or of any other guarantee or
security taken pursuant to, or in connection with, the Finance
Documents by any Finance Party.
19.8 ADDITIONAL SECURITY
This guarantee is in addition to and is not in any way prejudiced by
any other guarantee or security now or subsequently held by any Finance
Party.
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SECTION 8
REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT
20. REPRESENTATIONS
Each Obligor makes in respect of itself, and the Original Borrower
makes in respect of itself and each other Obligor, the representations
and warranties set out in this Clause 20 to each Finance Party on the
date of this Agreement, except that the representations and warranties
set out in:
1.1 Clause 20.16 (US matters) shall be made by the Original Borrower
only; and
1.2 paragraphs (a) to (c) of Clause 20.9 (No misleading information)
shall be made on the date on which the Information Memorandum is
approved by the Original Borrower.
20.1 STATUS
1.1 It is a corporation, duly incorporated and validly existing under
the law of its jurisdiction of incorporation.
1.2 It and each of its Subsidiaries has the power to own its assets and
carry on its business as it is being conducted.
20.2 BINDING OBLIGATIONS
The obligations expressed to be assumed by it in each Finance Document
are, subject to any qualifications as to matters of law as at the date
of this Agreement which are referred to in any legal opinion delivered
pursuant to Clause 4 (Conditions of Utilisation) or Clause 26 (Changes
to the Obligors), legal, valid, binding and enforceable obligations.
20.3 NON-CONFLICT WITH OTHER OBLIGATIONS
The entry into and performance by it of, and the transactions
contemplated by, the Finance Documents do not and will not conflict
with:
1.1 any law or regulation applicable to it;
1.2 its constitutional documents; or
1.3 any agreement or instrument binding upon it or any member of the
Group or any of its or any member of the Group's assets to an extent
or in a manner which might reasonably be expected to have a Material
Adverse Effect.
20.4 POWER AND AUTHORITY
It has the power to enter into, perform and deliver, and has taken all
necessary corporate action to authorise its entry into, performance and
delivery of, the Finance Documents to which it is a party and the
transactions contemplated by those Finance Documents.
20.5 VALIDITY AND ADMISSIBILITY IN EVIDENCE
All Authorisations required or desirable:
1.1 to enable it lawfully to enter into, exercise its rights and comply
with its obligations in the Finance Documents to which it is a
party; and
44
1.2 to make the Finance Documents to which it is a party admissible in
evidence in its jurisdiction of incorporation,
have been obtained or effected and are in full force and effect.
20.6 GOVERNING LAW AND ENFORCEMENT
The choice of English law as the governing law of the Finance Documents
will be recognised and enforced in its jurisdiction of incorporation.
20.7 NO FILING OR STAMP TAXES
Under the law of its jurisdiction of incorporation it is not necessary
that the Finance Documents be filed, recorded or enrolled with any
court or other authority in that jurisdiction or that any stamp,
registration or similar tax be paid on or in relation to the Finance
Documents.
20.8 NO DEFAULT
1.1 No Event of Default is continuing or might reasonably be expected to
result from the making of any Utilisation.
1.2 No other event or circumstance is outstanding which constitutes a
default by it or any of its Subsidiaries under any other agreement
relating to Financial Indebtedness which is binding on it or any of
its Subsidiaries or to which its (or its Subsidiaries') assets are
subject which might have a Material Adverse Effect.
20.9 NO MISLEADING INFORMATION
1.1 Any factual information provided by an Obligor for the purposes of
the Information Memorandum is true and accurate in all material
respects as at the date the Information Memorandum is approved by
the Original Borrower.
1.2 The financial projections contained in the Information Memorandum
have been prepared on the basis of recent historical information and
on the basis of assumptions made after careful consideration.
1.3 Nothing has occurred or been omitted from the Information Memorandum
and no information has been given or withheld that results in the
information contained in the Information Memorandum being untrue or
misleading in any material respect.
1.4 All written information (other than the Information Memorandum)
supplied by the Original Borrower to a Finance Party after the date
of this Agreement is true, complete and accurate in all material
respects as at the date it was given and is not misleading in any
material respect at that date PROVIDED THAT any non-wilful breach of
this paragraph shall not give rise to an Event of Default.
20.10 FINANCIAL STATEMENTS
1.1 Its Original Financial Statements were prepared in accordance with
GAAP consistently applied unless expressly disclosed to the
contrary.
45
1.2 Its Original Financial Statements fairly represent its financial
condition and operations (consolidated in the case of any Obligor
which has Subsidiaries) during the relevant financial year.
1.3 There has been no material adverse change in its business or
financial condition (or the business or consolidated financial
condition of the Group, in the case of the Original Borrower) since
the date on which its Original Financial Statements are stated to
have been prepared.
20.11 PARI PASSU RANKING
Its payment obligations under the Finance Documents rank at least pari
passu with the claims of all its other unsecured and unsubordinated
creditors, except for obligations mandatorily preferred by law.
20.12 NO PROCEEDINGS PENDING OR THREATENED
No litigation, arbitration or administrative proceedings of or before
any court, arbitral body or agency which are reasonably likely to be
adversely determined and, if so, would have a Material Adverse Effect
have (to the best of its knowledge and belief) been started or
threatened against it or any of its Subsidiaries.
20.13 ENVIRONMENTAL COMPLIANCE
Each member of the Group has performed and observed in all material
respects all Environmental Law, Environmental Permits and all other
material covenants, conditions, restrictions or agreements directly or
indirectly concerned with any contamination, pollution or waste or the
release or discharge of any toxic or hazardous substance in connection
with any real property which is or was at any time owned, leased or
occupied by any member of the Group or on which any member of the Group
has conducted any activity where failure to do so would have a Material
Adverse Effect.
20.14 ENVIRONMENTAL CLAIMS
No Environmental Claim has been commenced or (to the best of its
knowledge and belief) is threatened against any member of the Group
where that claim would be reasonably likely to be determined against
that member of the Group and, if so, would have a Material Adverse
Effect.
20.15 TAXATION
1.1 It has duly and punctually paid and discharged all Taxes shown in
its Tax returns or any assessment made against it to be due and
payable within the time period allowed without incurring penalties
except to the extent that (i) payment is being contested in good
faith by appropriate proceedings, (ii) it has maintained adequate
reserves for those Taxes in accordance with GAAP, (iii) payment can
be lawfully withheld and (iv) failure to pay would not have a
Material Adverse Effect.
1.2 It is not materially overdue in the filing of any Tax returns except
where failure to do so would not have a Material Adverse Effect.
1.3 No claims are being asserted against it with respect to Taxes except
to the extent that (i) payment is being contested in good faith by
appropriate proceedings, (ii) it
46
has maintained adequate reserves for those Taxes in accordance with
GAAP, (iii) payment can be lawfully withheld and (iv) those claims
would not have a Material Adverse Effect.
20.16 US MATTERS
1.1 (COMPLIANCE WITH ERISA)
1.1.1 The Original Borrower and each Subsidiary and ERISA Affiliate
of the Original Borrower has fulfilled all its material
contribution obligations under the minimum funding standards
of ERISA, and the Code, with respect to any employee pension
benefit plan covered by Title IV of ERISA or subject to the
minimum funding standards under section 412 of the Code
maintained by it, that Subsidiary or ERISA Affiliate or to
which it, that Subsidiary or ERISA Affiliate makes
contributions, has within the previous five years made
contributions or has an obligation to make contributions (a
"PLAN").
1.1.2 Each Plan is in compliance in all material respect with the
presently applicable provisions of ERISA and the Code, and
neither the Original Borrower nor any Subsidiary or ERISA
Affiliate of the Original Borrower has incurred or expects to
incur any material liability to the Pension Benefit Guaranty
Corporation of the United States (or any entity succeeding to
any or all of its functions under ERISA) or to a Plan under
Title IV of ERISA.
1.1.3 Neither the Original Borrower nor any of its Subsidiaries or
ERISA Affiliates has incurred any material liability to or on
account of a Plan pursuant to the penalty provisions of Title
I or Title IV of ERISA or expects to incur any such material
liability thereunder with respect to any such Plan.
1.2 (INVESTMENT COMPANY ACT) Neither the Original Borrower nor any of
its Subsidiaries is an "INVESTMENT COMPANY" or a "COMPANY CONTROLLED
BY AN INVESTMENT COMPANY" within the meaning of the United States
Investment Company Act of 1940.
1.3 (MARGIN STOCK) No part of the proceeds of any Loan will be used (i)
for any purpose which violates the provisions of the Margin
Regulations, or (ii) to purchase or carry any Margin Stock or to
extend credit to others for the purpose of purchasing or carrying
any Margin Stock, other than in the case of (ii), that portion of
the proceeds of any Loan applied towards financing an Acquisition.
20.17 REPETITION
1.1 The Repeating Representations are deemed to be made by each Obligor
(by reference to the facts and circumstances then existing) on:
1.1.1 the date of each Utilisation Request or Selection Notice, the
first day of each Interest Period and the date of the
Conversion Notice; and
1.1.2 in the case of an Additional Obligor, the day on which the
company becomes (or it is proposed that the company becomes)
an Additional Obligor.
47
1.2 During the Certain Funds Period, only the Certain Funds Repeating
Representations are be deemed to be made by each Obligor or
Additional Obligor on the dates specified in paragraph (a) above.
21. INFORMATION UNDERTAKINGS
The undertakings in this Clause 21 remain in force from the date of
this Agreement for so long as any amount is outstanding under the
Finance Documents or any Commitment is in force.
21.1 FINANCIAL STATEMENTS
The Original Borrower shall supply to the Agent in sufficient copies
for all the Lenders:
1.1 as soon as the same become available, but in any event within 120
days after the end of each of its financial years:
1.1.1 its audited consolidated financial statements for that
financial year; and
1.1.2 the audited financial statements of each Obligor for that
financial year (consolidated, where available) except that if
any Obligor is incorporated in a jurisdiction in which it is
not required to produce audited accounts or in which it is not
customary to do so, the Original Borrower may instead supply
unaudited accounts in respect of that Obligor; and
1.2 as soon as the same become available, but in any event within 90
days after the end of each half of each of its financial years:
1.2.1 its consolidated financial statements for that financial half
year; and
1.2.2 the financial statements of each Obligor for that financial
half year (consolidated, where available).
21.2 COMPLIANCE CERTIFICATE
1.1 The Original Borrower shall supply to the Agent, with each set of
financial statements delivered by it pursuant to paragraph (a)(i) or
(b)(i) of Clause 21.1 (Financial statements), a Compliance
Certificate as to compliance with Clause 22 (Financial covenants) as
at the date as at which those financial statements were drawn up.
1.2 Each Compliance Certificate shall be signed by a director of the
Original Borrower.
21.3 PRINCIPAL SUBSIDIARIES
The Original Borrower shall supply to the Agent with each set of
financial statements delivered by it pursuant to paragraph (a)(i) or
(b)(i) of Clause 21.1 (Financial statements) or, within 14 days after
any request made by the Agent (acting reasonably), a certificate signed
on its behalf by a director of the Original Borrower:
1.1 listing the Principal Subsidiaries as at the end of the Relevant
Period (or, as at the date specified in the Agent's request, which
date must be not less than 15 nor more
48
than 45 days before the date of the request and which must be at the
end of a month); and
1.2 setting out in reasonable detail and in a form satisfactory to the
Agent the computations necessary to justify the inclusions in, and
exclusions from, that list.
21.4 REQUIREMENTS AS TO FINANCIAL STATEMENTS
1.1 The Original Borrower shall ensure that each set of its financial
statements delivered by it pursuant to Clause 21.1 (Financial
statements) is prepared using GAAP and accounting practices and
financial reference periods consistent with those applied in the
preparation of its Original Financial Statements unless, in relation
to any set of financial statements, it notifies the Agent that there
has been a change in GAAP or the accounting practices or reference
periods and it delivers to the Agent a certificate signed by a
director setting out:
1.1.1 a description of any change necessary for those financial
statements to reflect the GAAP, accounting practices and
reference periods upon which its Original Financial Statements
were prepared; and
1.1.2 sufficient information, in form and substance as may be
reasonably required by the Agent, to enable the Lenders to
determine whether Clause 22 (Financial covenants) has been
complied with and make an accurate comparison between the
financial position indicated in those financial statements and
its Original Financial Statements.
1.2 If the Original Borrower notifies the Agent of a change in
accordance with paragraph (a) above then the Original Borrower and
Agent shall enter into negotiations in good faith with a view to
agreeing:
1.2.1 whether or not the change might result in any material
alteration in the commercial effect of any of the terms of
this Agreement; and
1.2.2 if so, any amendments to this Agreement which may be necessary
to ensure that the change does not result in any material
alteration in the commercial effect of those terms,
and if any amendments are agreed they shall take effect and be
binding on each of the Parties in accordance with their terms.
Any reference in this Agreement to the Original Borrower's
financial statements shall be construed as a reference to those
financial statements as adjusted to reflect the basis upon which
the Original Borrower's Original Financial Statements were
prepared.
21.5 INFORMATION: MISCELLANEOUS
The Original Borrower shall supply to the Agent (in sufficient copies
for all the Lenders, if the Agent so requests):
49
1.1 all documents dispatched by the Original Borrower to its
shareholders (or any class of them) or its creditors generally at
the same time as they are dispatched;
1.2 promptly upon becoming aware of them, the details of any litigation,
arbitration or administrative proceedings which are current,
threatened or pending against any member of the Group, and which are
reasonably likely to be adversely determined and, if so, would have
a Material Adverse Effect; and
1.3 promptly, such further information regarding the financial
condition, business and operations of any member of the Group as any
Finance Party (through the Agent) may reasonably request.
21.6 NOTIFICATION OF DEFAULT
1.1 Each Obligor shall notify the Agent of any Default (and the steps,
if any, being taken to remedy it) promptly upon becoming aware of
its occurrence (unless that Obligor is aware that a notification has
already been provided by another Obligor).
1.2 Promptly upon a request by the Agent, the Original Borrower shall
supply to the Agent a certificate signed by a director or two senior
officers on its behalf certifying that no Default is continuing (or
if a Default is continuing, specifying the Default and the steps, if
any, being taken to remedy it).
22. FINANCIAL COVENANTS
22.1 FINANCIAL DEFINITIONS
In this Clause 22:
"ADJUSTED EBITDA" means, in respect of any Relevant Period, EBITDA for
that Relevant Period adjusted by:
1.1 crediting EBITDA for that Relevant Period (on an annualised basis)
for any Subsidiaries acquired during that Relevant Period; and
1.2 debiting EBITDA for that Relevant Period (on an annualised basis)
for any Subsidiaries disposed of during that Relevant Period,
and where amounts are denominated in a currency other than sterling,
using an exchange rate determined in accordance with GAAP.
"BORROWINGS" means, in respect of any Relevant Period without double
counting, the aggregate outstanding principal, capital or nominal
amount of Financial Indebtedness on the last day of that Relevant
Period (determined on a consolidated basis and calculated using the
exchange rate applying on the calculation date) of the members of the
Group and shall include:
1.3 the outstanding amount of any bills of exchange or promissory notes
on which any member of the Group is liable as drawer (but only if
the relevant ▇▇▇▇ is not beneficially owned by it), acceptor,
issuer, endorser or otherwise (but excluding any ▇▇▇▇ or note drawn,
accepted or issued by that member of the Group in the ordinary
course of trading and which is payable at sight or not more than 90
days
50
after sight or has a final maturity of not more than 90 days from
its issue date and is not re-financing another ▇▇▇▇ or note relating
to the same underlying transaction);
1.4 to the extent paid up or credited as paid up, the nominal amount of
any redeemable shares issued by any member of the Group;
1.5 any fixed or minimum premium payable on redemption or repayment of
any Financial Indebtedness; and
1.6 the amount of any Financial Indebtedness consisting of deferred
consideration but only where the amount payable can be determined at
such time or, where the amount cannot be determined at such time but
the Financial Indebtedness consisting of deferred consideration will
not be less than an amount which can be determined, the amount so
determined,
but excluding:
1.7 any indebtedness referred to in paragraph (b)(iii) of Clause 23.12
(Loans and guarantees);
1.8 any Financial Indebtedness owed by one member of the Group to
another; and
1.9 any moneys borrowed from any member of the Group by the trustee of
an employee share option scheme for the benefit of employees of any
member of the Group required to be recognised as a liability of any
member of the Group by Financial Reporting Standard 5 (Reporting the
Substance of Transactions).
For this purpose, moneys borrowed or raised which are on a particular
day outstanding or repayable in a currency other than sterling shall on
that day be taken into account (i) if that day is a date as at which
the Original Borrower's audited consolidated balance sheet has been
prepared, in their sterling equivalent at the rate of exchange used for
the purpose of preparing that balance sheet and (ii) in any other case
in their sterling equivalent as at 11.00 a.m. on the last Business Day
of the previous month.
"CASH AND CASH EQUIVALENTS" means, in respect of any Relevant Period,
the sum of:
1.10 the then current market value of marketable debt securities issued
or guaranteed by the government of the United States of America or
the United Kingdom;
1.11 deposits for a term of 3 months or less and money at call with the
Agent or a recognised bank, building society or financial
institution incorporated or established in the OECD having a rating
of at least A granted by Standard & Poor's Rating Services or at
least A2 by ▇▇▇▇▇'▇ Investors Service Inc., except to the extent
they constitute Excluded Cash;
1.12 the then current market value of any certificate of deposit the term
of which has 3 months or less remaining to maturity issued by the
Agent or a recognised bank, building society or financial
institution incorporated or established in the OECD having a rating
of A granted by Standard & Poor's Rating Services, or at least A2 by
▇▇▇▇▇'▇ Investors Service Inc.;
51
1.13 (if positive) the marked to market value of any derivative
transaction entered into in connection with protection against or
benefit from fluctuation in any rate or price; and
1.14 any cash in hand or cash at bank other than Excluded Cash,
held by or for a member of the Group on the last day of that Relevant
Period.
"EBITDA" means, for any Relevant Period, PBIT before deduction of any
amount attributable to the amortisation of intangible assets and
depreciation of tangible assets.
"EXCLUDED CASH" means, in respect of any member of the Group on the
last day of a Relevant Period, the amount (if any) of any Cash or Cash
Equivalents of that member of the Group held outside the United Kingdom
which, or the proceeds of which, is or are prohibited at that time by
applicable foreign exchange or other laws from being applied to meet
any indebtedness included in the calculation of Borrowings or to be
remitted to the United Kingdom.
"NET BORROWINGS" means, in respect of any Relevant Period, Borrowings
less Cash and Cash Equivalents.
"NET INTEREST PAYABLE" means, in respect of any Relevant Period:
1.15 the aggregate amount of the interest (including the interest element
of leasing and hire purchase payments and capitalised interest),
commission, fees, discounts and other finance payments payable by
any member of the Group (including any commission, fees, discounts
and other finance payments payable by any member of the Group under
any interest rate hedging arrangement) but deducting any amount
deemed to be interest in accordance with Financial Reporting
Standard 12 (Provisions, Contingent Liabilities and Contingent
Assets) and any interest in respect of any indebtedness referred to
in paragraph (b)(iii) of Clause 23.12 (Loans and guarantees);
less:
1.16 the aggregate of any interest receivable by any member of the Group
on any deposit or bank account and any commission, fees, discounts
and other finance payments receivable by any member of the Group
under any interest rate hedging instrument.
"PBIT" means, in relation to any Relevant Period, the consolidated
operating profit of the Group from continuing operations but before tax
and excluding:
1.17 any exceptional or extraordinary items; and
1.18 Net Interest Payable for that Relevant Period.
For this purpose, the consolidated operating profit of the Group shall
be determined in accordance with the definition of "HEADLINE EARNINGS"
set out in paragraphs 21 and 22 of Statement of Investment Practice No.
1 published by the Institute of Investment Management and Research,
including any adjustments to exclude any profits or losses arising on:
52
1.19 the termination or sale of any discontinued operation; and
1.20 the sale of fixed assets or businesses or on their permanent
diminution or write-off (including the write-off and amortisation of
goodwill).
"RELEVANT PERIOD" means:
1.21 each period of twelve months ending on the last day of the Original
Borrower's financial year; and
1.22 each period of twelve months ending on the last day of the first
half of the Original Borrower's financial year.
22.2 FINANCIAL CONDITION
The Original Borrower shall ensure that:
1.1 the ratio of Net Borrowings to Adjusted EBITDA for each Relevant
Period shall not exceed 3:1; and
1.2 the ratio of EBITDA to Net Interest Payable for each Relevant Period
shall not be less than 4.5:1.
22.3 FINANCIAL TESTING
The financial covenants set out in Clause 22.2 (Financial condition)
shall be tested for each Relevant Period by reference to each of the
financial statements and/or each Compliance Certificate delivered
pursuant to Clause 21.2 (Compliance Certificate).
23. GENERAL UNDERTAKINGS
The undertakings in this Clause 23 remain in force from the date of
this Agreement for so long as any amount is outstanding under the
Finance Documents or any Commitment is in force.
23.1 AUTHORISATIONS
Each Obligor shall promptly:
1.1 obtain, comply with and do all that is necessary to maintain in full
force and effect; and
1.2 supply certified copies to the Agent of,
any Authorisation required under any law or regulation of its
jurisdiction of incorporation to enable it to perform its obligations
under the Finance Documents and to ensure the legality, validity,
enforceability or admissibility in evidence in its jurisdiction of
incorporation of any Finance Document.
23.2 COMPLIANCE WITH LAWS
Each Obligor shall comply in all respects with all laws to which it may
be subject, if failure so to comply would materially impair its ability
to perform its obligations under the Finance Documents.
53
23.3 PARI PASSU RANKING
Each Obligor shall ensure that at all times its payment obligations
under the Finance Documents rank at least pari passu with the claims of
all its other unsecured and unsubordinated creditors, except for
obligations mandatorily preferred by law.
23.4 NEGATIVE PLEDGE
1.1 No Obligor shall (and the Original Borrower shall ensure that no
other member of the Group shall) create or permit to subsist any
Security over any of its assets.
1.2 No Obligor shall (and the Original Borrower shall ensure that no
other member of the Group shall):
1.2.1 sell, transfer or otherwise dispose of any of its assets on
terms whereby they are or may be leased to or re-acquired by
an Obligor or any other member of the Group;
1.2.2 sell, transfer or otherwise dispose of any of its receivables
on recourse terms;
1.2.3 enter into any arrangement under which money or the benefit of
a bank or other account may be applied, set-off or made
subject to a combination of accounts; or
1.2.4 enter into any other preferential arrangement having a similar
effect,
in circumstances where the arrangement or transaction is entered
into primarily as a method of raising Financial Indebtedness or
of financing the acquisition of an asset.
1.3 Paragraphs (a) and (b) above do not apply to:
1.3.1 any netting or set-off arrangement entered into by any member
of the Group in the ordinary course of its banking
arrangements for the purpose of netting debit and credit
balances;
1.3.2 any lien arising by operation of law and in the ordinary
course of trading;
1.3.3 except where the supplier is another member of the Group, any
title transfer or retention of title arrangement entered into
by any member of the Group in the normal course of trading on
the supplier's standard or usual terms;
1.3.4 any Security over or affecting (or transaction
("QUASI-SECURITY") described in paragraph (b) above affecting)
any asset acquired by a member of the Group (except any asset
acquired from another member of the Group) after the date of
this Agreement if:
1.3.5 the Security or Quasi-Security was not created in
contemplation of the acquisition of that asset by a member of
the Group;
54
1.3.6 the principal amount secured has not been increased in
contemplation of, or since the acquisition of, that asset by a
member of the Group; and
1.3.7 the Security or Quasi-Security is removed or discharged within
nine months of the date of acquisition of such asset unless
the Original Borrower has demonstrated to the satisfaction of
the Agent that that member of the Group (1) is not
contractually entitled to repay the Financial Indebtedness
secured by that Security, and (2) has used reasonable
endeavours to procure the discharge of that Security,
unless the Majority Lenders consent otherwise;
1.3.8 any Security or Quasi-Security over or affecting any asset of
any company which becomes a member of the Group after the date
of this Agreement, where the Security or Quasi-Security is
created prior to the date on which that company becomes a
member of the Group, if:
1.3.9 the Security or Quasi-Security was not created in
contemplation of the acquisition of that company;
1.3.10 the principal amount secured has not increased in
contemplation of, or since the acquisition of, that company;
and
1.3.11 the Security or Quasi-Security is removed or discharged
within nine months of that company becoming a member of the
Group unless the Original Borrower has demonstrated to the
satisfaction of the Agent that that member of the Group (1) is
not contractually entitled to repay the Financial Indebtedness
secured by that Security, and (2) has used reasonable
endeavours to procure the discharge of that Security,
unless the Majority Lenders consent otherwise;
1.3.12 any Security or Quasi-Security securing indebtedness the
principal amount of which (when aggregated with the principal
amount of any other indebtedness which has the benefit of
Security or Quasi-Security other than any permitted under this
paragraph (c)) does not exceed L5,000,000 (or its equivalent);
1.3.13 any Security created in connection with escrow arrangements
for source codes agreed with the customers of any member of
the Group in the ordinary course of business;
1.3.14 any Security over goods, documents of title to goods and
related documents and insurances and their proceeds arising or
created in the ordinary course of its business as security for
indebtedness to a bank or financial institution directly
relating to the assets over which that Security exists;
55
1.3.15 any Security over any assets of a member of the Group in
favour of an Obligor, or a wholly-owned Subsidiary of the
Original Borrower; and
1.3.16 any Security or Quasi-Security created over any asset with
the prior written consent of the Majority Lenders.
23.5 DISPOSALS
1.1 No Obligor shall (and the Original Borrower shall ensure that no
other member of the Group shall), enter into a single transaction or
a series of transactions (whether related or not) and whether
voluntary or involuntary to sell, lease, transfer or otherwise
dispose of any asset.
1.2 Paragraph (a) above does not apply to any sale, lease, transfer or
other disposal:
1.2.1 made in the ordinary course of trading of the disposing
entity;
1.2.2 of assets in exchange for other assets comparable or superior
as to type, value and quality;
1.2.3 of obsolete assets at arm's length and on normal commercial
terms;
1.2.4 of cash as consideration for the acquisition of any asset at
arm's length and on normal commercial terms;
1.2.5 of assets at arm's length and on normal commercial terms,
which in the reasonable view of the board of directors of the
Original Borrower, are not required in the operation of the
disposing entity's business and which were acquired by the
disposing entity as the result of the acquisition of another
person;
1.2.6 of assets for a consideration not exceeding a normal
commercial consideration by any member of the Group to an
Obligor, or by one wholly-owned Subsidiary of the Original
Borrower to another, or (if the interest of the Original
Borrower in the transferee is not less than its interest in
the transferor) by any other Subsidiary to another;
1.2.7 of cash dividends by the Original Borrower to its ordinary
shareholders from its distributable profits and reserves in
the usual and ordinary course of its business;
1.2.8 of assets for cash in any financial year of the Original
Borrower having an aggregate fair market value of less than
L100,000,000 (or its equivalent);
1.2.9 of assets for cash in any financial year of the Original
Borrower having an aggregate fair market value exceeding
L100,000,000 (or its equivalent) if either:
1.2.10 the proceeds from that disposal in excess of L100,000,000 (or
its equivalent) are applied within 6 Months of the date of
that disposal to prepay on a pro rata basis any outstanding
Loans, in which case the
56
Revolving Commitments (if any) shall automatically be reduced
on a pro rata basis by an amount equal to the amount of that
prepayment; or
1.2.11 the proceeds of that disposal are applied towards an
acquisition permitted by this Agreement within six Months of
the date of that disposal or, within six Months of the date of
that disposal, a member of the Group enters into a legally
binding contract, or makes a bona fide offer, to make an
acquisition permitted by this Agreement and, to the extent
that the proceeds of that disposal in excess of L100,000,000
(or its equivalent) (the "REQUIRED PAYMENT AMOUNT") are not so
applied within that time period or pursuant to that contract
or offer, the Required Payment Amount shall be applied within
10 Business Days of the expiry of that period or the expiry,
termination or lapse of that contract or offer, to prepay on a
pro rata basis any outstanding Loans and the Revolving
Commitments (if any) shall automatically be reduced on a pro
rata basis by an amount equal to the Required Prepayment
Amount; or
1.2.12 made with the prior written consent of the Majority Lenders.
23.6 CHANGE OF BUSINESS
The Original Borrower shall procure that no substantial change is made
to the general nature of the business of the Original Borrower or the
Group from that carried on at the date of this Agreement.
23.7 INSURANCE
Each Obligor shall (and the Original Borrower shall ensure that each
member of the Group shall) maintain insurances on and in relation to
its business and assets with reputable underwriters or insurance
companies against those risks and to the extent that it reasonably
considers is usual for companies carrying on the same or substantially
similar business.
23.8 ENVIRONMENTAL COMPLIANCE
Each Obligor shall (and the Original Borrower shall ensure that each
member of the Group shall) comply in all material respects with all
Environmental Law and obtain and maintain any Environmental Permits
where failure to do so would have a Material Adverse Effect.
23.9 ENVIRONMENTAL CLAIMS
The Original Borrower shall inform the Agent in writing as soon as
reasonably practicable upon becoming aware of the same if any
Environmental Claim has been commenced or (to the best of the Original
Borrower's knowledge and belief) is threatened against any member of
the Group where the claim would be reasonably likely to be determined
against that member of the Group and, if so, would have a Material
Adverse Effect.
23.10 TAXATION
Each Obligor shall (and the Original Borrower shall ensure that each
member of the Group shall) duly and punctually pay and discharge all
Taxes shown in its Tax returns or in any assessment made against it to
be due and payable within the time period allowed without incurring
penalties except to the extent that (i) payment is being contested in
good faith by
57
appropriate proceedings, (ii) it has maintained adequate reserves for
those Taxes in accordance with GAAP, (iii) payment can be lawfully
withheld and (iv) failure to pay would not have a Material Adverse Effect.
23.11 PROHIBITED ACQUISITIONS
1.1 No Obligor shall (and the Original Borrower shall ensure that no
other member of the Group shall), without the prior written consent
of the Majority Lenders, acquire any company, business, assets or
undertaking.
1.2 Paragraph (a) above shall not apply to:
1.2.1 the Acquisitions;
1.2.2 an acquisition for a consideration not exceeding a normal
commercial consideration by any member of the Group from an
Obligor, or by one wholly-owned Subsidiary of the Original
Borrower from another, or (if the interest of the Original
Borrower in the transferee is not less than its interest in
the transferor) by any other Subsidiary from another;
1.2.3 an acquisition by an Obligor for a consideration of less than
L20,000,000 (or its equivalent); or
1.2.4 an acquisition by an Obligor for a consideration of more than
L20,000,000 (or its equivalent) if:
1.2.5 it is made at fair market value;
1.2.6 it is of a company, business or undertaking, or assets used,
in the same type of business as that carried on by the Group
at the date of this Agreement;
1.2.7 all Authorisations required in relation to that acquisition
have been obtained;
1.2.8 it does not involve any member of the Group entering into a
partnership or joint venture arrangement with any person other
than a member of the Group for the purposes of that
acquisition;
1.2.9 the Original Borrower has provided the Agent with a
certificate prepared on the basis of pro forma financial
statements for the Original Borrower taking into account the
proposed acquisition (which are based on (1) management
accounts for the Original Borrower prepared as at the end of
the Month immediately preceding the proposed acquisition date
and (2) the most recent audited annual financial statements of
the company to be acquired) demonstrating, as of the proposed
date of that acquisition, compliance with paragraph (a) of
Clause 22.2 (Financial condition);
58
1.2.10 that acquisition does not constitute a "Class 1" transaction
within the meaning of Chapter 10 (Transactions) of the
Financial Services Authority Listing Rules; and
1.2.11 as a result of that acquisition, the Net External Debt of the
Group will not increase by more than $400,000,000 (or its
equivalent).
1.3 For the purposes of this Clause 23.11:
1.3.1 an acquisition shall not constitute a "Class 1" transaction if
the UK Listing Authority determines that it is not a "Class 1"
transaction or waives the requirement to despatch an
explanatory circular to the Original Borrower's shareholders
or to obtain their prior approval in general meeting;
1.3.2 if an acquisition would otherwise result in an increase in Net
External Debt by more than $400,000,000 (or its equivalent)
(such amount in excess of $400,000,000 being referred to as
the "EXCESS AMOUNT") this shall be deemed not to be the case,
if as at the date of determining Net External Debt, the
Unutilised Net Equity Proceeds are greater than or equal to
the Excess Amount;
1.3.3 each of "BORROWINGS", "CASH AND CASH EQUIVALENTS" and
"EXCLUDED CASH" has the meaning given to it in Clause 22.1
(Financial definitions);
1.3.4 "NET EQUITY PROCEEDS" means the aggregate net proceeds of any
equity capital or irredeemable share capital issued after the
date of this Agreement by any member of the Group to persons
(other than members of the Group);
1.3.5 "NET EXTERNAL DEBT" means Borrowings less Cash and Cash
Equivalents (without deducting Excluded Cash from Cash and
Cash Equivalents); and
1.3.6 "UNUTILISED NET EQUITY PROCEEDS" means an amount equal to Net
Equity Proceeds less an amount equal to any part thereof which
has previously been taken into account under paragraph (ii)
above in determining whether an acquisition would otherwise
result in an increase in Net External Debt by more than
$400,000,000 (or its equivalent).
23.12 LOANS AND GUARANTEES
1.1 Except as permitted by paragraph (b) below, no Obligor shall (and
the Original Borrower shall ensure that no member of the Group
shall) (i) make any loans or grant any credit or (ii) give any
guarantee or indemnity (except as required under any of the Finance
Documents) or otherwise voluntarily assume any liability, whether
actual or contingent, in respect of any indebtedness of any person
(together, a "GUARANTEE").
1.2 Paragraph (a) above shall not prohibit any Obligor or any other
member of the Group from granting any loan or credit or giving any
Guarantee:
1.2.1 in the ordinary course of business;
59
1.2.2 to, or in respect of, any member of the Group;
1.2.3 to any person to finance , directly or indirectly, the
purchase by that person or any other person of any
indebtedness of any member of the Group if the Obligor
disclosed to the Agent its intention to grant that loan or
credit prior to the date of this Agreement;
1.2.4 to any trustee of an employee share option scheme provided in
the ordinary course of business for the benefit of employees
of any member of the Group; or
(v) where the aggregate principal amount of all loans or credit
granted by the members of the Group does not exceed L500,000.
23.13 ACCESSION OF ADDITIONAL GUARANTORS
1.1 Without prejudice to Clause 26.6 (Resignation of a Guarantor), the
Original Borrower shall ensure that:
1.1.1 (unless the Original Borrower demonstrates to the reasonable
satisfaction of the Agent that it is unlawful for a member of
the Group to become an Additional Guarantor), each company
which becomes a member of the Group and which satisfies the
Relevant Criteria shall within 120 days of it becoming a
member of the Group, become an Additional Guarantor in
accordance with the provisions of Clause 26.4 (Additional
Guarantors);
1.1.2 within 120 days of the end of each Relevant Period, the
aggregate unconsolidated operating profit of all Guarantors
(without double counting and excluding any dividend or other
distribution received by that Guarantor from any of its
Subsidiaries) is at least equal to 75 per cent. of the
operating profit of the Group; and
1.1.3 within 120 days of the end of each Relevant Period, the
aggregate unconsolidated gross revenue of all Guarantors
(without double counting and excluding any dividend or other
distribution received by that Guarantor from any of its
Subsidiaries) is at least equal to 50 per cent. of the gross
revenue of the Group.
1.2 Where a member of the Group which satisfies the Relevant Criteria at
the date of this Agreement is not an Original Guarantor, the
Original Borrower shall procure that that member of the Group shall
promptly (and in any event within 120 days of the date of this
Agreement) become an Additional Guarantor in accordance with the
provisions of Clause 26.4 (Additional Guarantors).
1.3 For the purposes of this Clause 23.13:
1.3.1 "RELEVANT CRITERIA" means that the gross revenue or operating
profit of the relevant member of the Group represents at least
10 per cent. of the consolidated gross revenues or operating
profits of the Group, determined using the applicable
principles set out in the definition of "PRINCIPAL
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Subsidiary" in Clause 1.1 (Definitions) after making all
necessary changes except that paragraph (a) of that definition
shall not apply and, for the purposes of paragraph (c) of that
definition, the reference to Original Financial Statements
shall be construed as a reference to the most recent audited
financial statements of the relevant member of the Group; and
1.3.2 "RELEVANT PERIOD" has the meaning given to it in Clause 22.1
(Financial definitions).
23.14 SYNDICATION
The Original Borrower shall provide reasonable assistance to the
Arrangers in the preparation of the Information Memorandum and the
primary syndication of the Facility (including, without limitation, by
making senior management available for the purpose of making
presentations to, or meeting, potential lending institutions) and will
comply with all reasonable requests for information from potential
syndicate members prior to completion of syndication.
24. EVENTS OF DEFAULT
Each of the events or circumstances set out in Clause 24 is an Event of
Default.
24.1 NON-PAYMENT
An Obligor does not pay in the manner provided in a Finance Document:
1.1 any principal payable by it when due, unless that Obligor satisfies
the Agent that non-payment is due solely to administrative error
(whether by that Obligor or a bank involved in transferring funds to
the Agent) and payment is made within 2 Business Days after notice
of that non-payment has been given to it by the Agent; or
1.2 any other sum payable by it under any Finance Document within 3
Business Days after notice of that non-payment has been given to it
by the Agent.
24.2 FINANCIAL COVENANTS
Any requirement of Clause 22 (Financial covenants) is not satisfied.
24.3 OTHER OBLIGATIONS
1.1 An Obligor does not comply with any provision of the Finance
Documents (other than those referred to in Clause 24.1 (Non-payment)
and Clause 22.2 (Financial condition).
1.2 No Event of Default will occur under paragraph (a) above if the
failure to comply is capable of remedy and is remedied within 30
days of the Agent giving notice to the Original Borrower or the
Original Borrower becoming aware of the failure to comply.
24.4 MISREPRESENTATION
Any representation or statement made or deemed to be made by an Obligor
in the Finance Documents or any other document delivered by or on
behalf of any Obligor under or in
61
connection with any Finance Document is or proves to have been incorrect
or misleading in any material respect when made or deemed to be made.
24.5 CROSS DEFAULT
1.1 Any Financial Indebtedness of any Obligor or Principal Subsidiary is
not paid when due nor within any originally applicable grace period.
1.2 Any Financial Indebtedness of any Obligor or Principal Subsidiary is
declared to be or otherwise becomes due and payable prior to its
specified maturity as a result of an event of default (however
described).
1.3 Any commitment to make available any Financial Indebtedness of any
Obligor or Principal Subsidiary is cancelled or suspended by a
creditor of any member of the Group as a result of an event of
default (however described).
1.4 Any creditor of any Obligor or Principal Subsidiary becomes entitled
to declare any Financial Indebtedness of any Obligor or Principal
Subsidiary due and payable prior to its specified maturity as a
result of an event of default (however described).
1.5 No Event of Default will occur under this Clause 24.5 if the
aggregate amount of Financial Indebtedness or commitment for
Financial Indebtedness falling within paragraphs (a) to (d) above is
less than L5,000,000 (or its equivalent).
24.6 INSOLVENCY
Any Obligor or Principal Subsidiary:
1.1 is (or is, or could be, deemed by law or a court to be) insolvent or
unable to pay its debts, stops, suspends or threatens to stop or
suspend payment of all or a material part of (or of a particular
type of) its indebtedness;
1.2 begins negotiations or takes any other step with a view to agreeing
a moratorium in respect of all of (or all of a particular type of)
its indebtedness (or of any part which it will or might otherwise be
unable to pay when due); or
1.3 proposes or makes a general assignment or an arrangement or
composition with or for the benefit of the relevant creditors or a
moratorium is agreed or declared in respect of or affecting all or a
material part of (or of a particular type of) the indebtedness of
that Obligor or Principal Subsidiary.
24.7 WINDING-UP
1.1 Any Obligor or Principal Subsidiary takes any corporate action, or
other steps or legal proceedings are started, for its winding-up,
dissolution, administration or reconstruction (whether by voluntary
arrangement, scheme of arrangement or otherwise) or for the
appointment of a liquidator, receiver administrator, administrative
receiver, conservator, custodian, trustee or similar officer of it
or a material part of its of its assets or revenues and assets.
1.2 Paragraph (a) above shall not apply to:
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1.2.1 any step which is vexatious or frivolous and which is
discharged or stayed within 7 days of being taken; or
1.2.2 any re-organisation to which the Majority Lenders have
previously consented in writing.
24.8 CREDITORS' PROCESS
A distress, attachment, execution or other similar legal process is
levied, enforced or sued out on or against the assets of any Obligor or
Principal Subsidiary having an aggregate book value of more than
L5,000,000 (or its equivalent) and is not discharged or stayed within
14 days.
24.9 ANALOGOUS EVENTS
Any event occurs which, under the laws of any jurisdiction, has an
analogous effect to any event mentioned in Clause 24.6 (Insolvency) or
Clause 24.7 (Winding-up).
24.10 OWNERSHIP OF THE OBLIGORS
An Obligor (other than the Original Borrower) is not or ceases to be a
Subsidiary of the Original Borrower.
24.11 UNLAWFULNESS
It is or becomes unlawful for an Obligor to perform any of its
obligations under the Finance Documents unless the Majority Lenders
determine that such unlawfulness is immaterial.
24.12 PROCEEDINGS COMMENCED
Any litigation, arbitration or administrative proceeding has commenced
which is reasonably likely to be determined adversely and if adversely
determined would have a Material Adverse Effect.
24.13 REPUDIATION
An Obligor repudiates a Finance Document.
24.14 CHANGE OF CONTROL
Control (as defined in section 416(2) of the income and Corporation
Taxes Act 1988) of the Original Borrower is acquired (or is deemed by
section 416(2) to be held) by any person who does not, or any group of
connected persons (within the meaning of section 839 of that Act) or
any persons acting in concert who do not, have (and would not be so
deemed to have) such control at the date of this Agreement.
24.15 ERISA DEFAULT
Any:
1.1 Plan which is covered by Title IV of ERISA but which is not a
"MULTIEMPLOYER PLAN" (as that term is defined for the purposes of
sections 3(37) and 4001(a)(3) of ERISA) shall terminate under
section 4001(c) or section 4002 of ERISA;
1.2 Obligor or any entity, whether or not incorporated, which is under
common control with any other Obligor (within the meaning of section
4001(a)(14) of ERISA) shall, or in the reasonable opinion of the
Majority Lenders, is likely to, incur any liability in connection
with a withdrawal from, or the insolvency or reorganisation (as
those
63
terms are defined in section 4245 and section 4241 respectively of
ERISA) of, a multiemployer plan; or
1.3 other event or condition shall occur or exist with respect to a
Plan,
and such event or condition, together with all other such events or
conditions, if any, would have a Material Adverse Effect.
24.16 MATERIAL ADVERSE CHANGE
Any event or circumstance occurs which will or might reasonably be
expected to have a material adverse effect on the ability of the
Obligors taken together to perform or comply with their obligations
under the Finance Documents.
24.17 ACCELERATION
1.1 Subject to Clause 24.18 (Certain Funds Period), on and at any time
after the occurrence of an Event of Default which is continuing the
Agent may, and shall if so directed by the Majority Lenders, by
notice to the Original Borrower:
1.1.1 cancel the Total Commitments whereupon they shall immediately
be cancelled;
1.1.2 declare that all or part of the Loans, together with accrued
interest, and all other amounts accrued under the Finance
Documents be immediately due and payable, whereupon they shall
become immediately due and payable; and/or
1.1.3 declare that all or part of the Loans be payable on demand,
whereupon they shall immediately become payable on demand by
the Agent on the instructions of the Majority Lenders.
1.2 Until the date falling four Months after the date of an Acquisition,
the Events of Default set out in Clause 24.3 (Other obligations) to
Clause 24.5 (Cross default) shall not apply to the company that is
the subject of that Acquisition or any of its Subsidiaries.
1.3 Until the date falling four Months after the date of its acquisition
by the Group, the Event of Default set out in Clause 24.5 (Cross
Default) shall not apply to a company or any of its Subsidiaries
provided the same is caused by such acquisition and not for any
other reason.
24.18 CERTAIN FUNDS PERIOD
Despite any provision to the contrary in this Agreement, during the
Certain Funds Period unless a Certain Funds Event of Default is
continuing, no Finance Party shall be entitled to:
1.1 cancel any of its Commitment;
1.2 rescind, terminate or cancel this Agreement;
1.3 require repayment of any Loan;
1.4 refuse to participate in the making of any Loan; or
64
1.5 exercise any right of set-off or counterclaim in respect of any
Loan,
24.18.1 but immediately upon the expiry of the Certain Funds Period
all such rights, remedies and entitlements shall be
available to the Finance Parties notwithstanding that they
may not have been used or been available for use during the
Certain Funds Period.
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SECTION 9
CHANGES TO PARTIES
25. CHANGES TO THE LENDERS
25.1 ASSIGNMENTS AND TRANSFERS BY THE LENDERS
Subject to this Clause 25, a Lender (the "EXISTING LENDER") may:
1.1 assign any of its rights; or
1.2 transfer by novation any of its rights and obligations,
to another bank or financial institution (the "NEW LENDER").
25.2 CONDITIONS OF ASSIGNMENT OR TRANSFER
1.1 The consent of the Original Borrower is required for an assignment
or transfer by a Lender, unless the assignment or transfer is to:
1.1.1 another Lender or an Affiliate of a Lender; or
1.1.2 a bank or financial institution whose long term unsecured debt
is rated at least A- by Standard and Poor's Rating Services or
A3 by ▇▇▇▇▇'▇ Investor Service Inc.
1.2 The consent of the Original Borrower to an assignment or transfer
must not be unreasonably withheld or delayed. The Original Borrower
will be deemed to have given its consent five Business Days after
the Lender has requested it unless consent is expressly refused by
the Original Borrower within that time.
1.3 The consent of the Original Borrower to an assignment or transfer
must not be withheld solely because the assignment or transfer may
result in an increase to the Mandatory Cost.
1.4 An assignment will only be effective on receipt by the Agent of
written confirmation from the New Lender (in form and substance
satisfactory to the Agent) that the New Lender will assume the same
obligations to the other Finance Parties as it would have been under
if it was an Original Lender.
1.5 A transfer will only be effective if the procedure set out in Clause
25.5 (Procedure for transfer) is complied with.
1.6 If:
1.6.1 a Lender assigns or transfers any of its rights or obligations
under the Finance Documents or changes its Facility Office;
and
1.6.2 as a result of circumstances existing at the date the
assignment, transfer or change occurs, an Obligor would be
obliged to make a payment to the New Lender or Lender acting
through its new Facility Office under Clause 14 (Tax gross-up
and indemnities) or Clause 15 (Increased costs),
66
then the New Lender or Lender acting through its new Facility
Office is only entitled to receive payment under those Clauses
to the same extent as the Existing Lender or Lender acting
through its previous Facility Office would have been if the
assignment, transfer or change had not occurred.
25.3 ASSIGNMENT OR TRANSFER FEE
The New Lender shall, on the date upon which an assignment or transfer
takes effect, pay to the Agent (for its own account) a fee of L1,000.
25.4 LIMITATION OF RESPONSIBILITY OF EXISTING LENDERS
1.1 Unless expressly agreed to the contrary, an Existing Lender makes no
representation or warranty and assumes no responsibility to a New
Lender for:
1.1.1 the legality, validity, effectiveness, adequacy or
enforceability of the Finance Documents or any other
documents;
1.1.2 the financial condition of any Obligor;
1.1.3 the performance and observance by any Obligor of its
obligations under the Finance Documents or any other
documents; or
1.1.4 the accuracy of any statements (whether written or oral) made
in or in connection with any Finance Document or any other
document,
and any representations or warranties implied by law are excluded.
1.2 Each New Lender confirms to the Existing Lender and the other
Finance Parties that it:
1.2.1 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 Finance Document; and
1.2.2 will continue to make its own independent appraisal of the
creditworthiness of each Obligor and its related entities
whilst any amount is or may be outstanding under the Finance
Documents or any Commitment is in force.
1.3 Nothing in any Finance Document obliges an Existing Lender to:
1.3.1 accept a re-transfer from a New Lender of any of the rights
and obligations assigned or transferred under this Clause 25;
or
1.3.2 support any losses directly or indirectly incurred by the New
Lender by reason of the non-performance by any Obligor of its
obligations under the Finance Documents or otherwise.
25.5 PROCEDURE FOR TRANSFER
1.1 Subject to the conditions set out in Clause 25.2 (Conditions of
assignment or transfer) a transfer is effected in accordance with
paragraph (b) below when the
67
Agent executes an otherwise duly completed Transfer Certificate
delivered to it by the Existing Lender and the New Lender. The Agent
shall, as soon as reasonably practicable after receipt by it of a
duly completed Transfer Certificate appearing on its face to comply
with the terms of this Agreement and delivered in accordance with
the terms of this Agreement, execute that Transfer Certificate.
1.2 On the Transfer Date:
1.2.1 to the extent that in the Transfer Certificate the Existing
Lender seeks to transfer by novation its rights and
obligations under the Finance Documents each of the Obligors
and the Existing Lender shall be released from further
obligations towards one another under the Finance Documents
and their respective rights against one another shall be
cancelled (being the "DISCHARGED RIGHTS AND OBLIGATIONS");
1.2.2 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;
1.2.3 the Agent, the Arrangers, the New Lender and other Lenders
shall acquire the same rights and assume the same obligations
between themselves as they would have acquired and assumed had
the New Lender been an Original Lender with the rights and/or
obligations acquired or assumed by it as a result of the
transfer and to that extent the Agent, the Arrangers and the
Existing Lender shall each be released from further
obligations to each other under this Agreement; and
1.2.4 the New Lender shall become a Party as a "LENDER".
25.6 DISCLOSURE OF INFORMATION
Any Lender may disclose to any of its Affiliates and any other person:
1.1 to (or through) whom that Lender assigns or transfers (or may
potentially assign or transfer) all or any of its rights and
obligations under this Agreement;
1.2 with (or through) whom that Lender enters into (or may potentially
enter into) any sub-participation in relation to, or any other
transaction under which payments are to be made by reference to,
this Agreement or any Obligor; or
1.3 to whom, and to the extent that, information is required to be
disclosed by any applicable law or regulation or judicial or
administrative proceedings,
any information about any Obligor, the Group and the Finance Documents
as that Lender shall consider appropriate if, in relation to paragraphs
(a) and (b) above, the person to whom the information is to be given
has entered into a Confidentiality Undertaking.
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26. CHANGES TO THE OBLIGORS
26.1 ASSIGNMENTS AND TRANSFER BY OBLIGORS
No Obligor may assign any of its rights or transfer any of its rights
or obligations under the Finance Documents.
26.2 ADDITIONAL BORROWERS
1.1 The Original Borrower may request that any of its wholly owned
Subsidiaries becomes an Additional Borrower. That Subsidiary shall
become an Additional Borrower if:
1.1.1 all the Lenders approve the addition of that Subsidiary;
1.1.2 the Original Borrower delivers to the Agent a duly completed
and executed Accession Letter;
1.1.3 the Original Borrower confirms that no Default is continuing
or would occur as a result of that Subsidiary becoming an
Additional Borrower; and
1.1.4 the Agent has received all of the documents and other evidence
listed in Part II of Schedule 2 (Conditions precedent) in
relation to that Additional Borrower, each in form and
substance satisfactory to the Agent.
1.2 No consent shall be required under paragraph (a)(i) above if the
relevant Subsidiary is incorporated in the United Kingdom.
1.3 The Agent shall notify the Original Borrower and the Lenders
promptly upon being satisfied that it has received (in form and
substance satisfactory to it) all the documents and other evidence
listed in Part II of Schedule 2 (Conditions precedent).
26.3 RESIGNATION OF A BORROWER
1.1 The Original Borrower may request that a Borrower (other than the
Original Borrower) ceases to be a Borrower by delivering to the
Agent a Resignation Letter.
1.2 The Agent shall accept a Resignation Letter and notify the Original
Borrower and the Lenders of its acceptance if:
1.2.1 no Default is continuing or would result from the acceptance
of the Resignation Letter (and the Original Borrower has
confirmed this is the case); and
1.2.2 the Borrower is under no actual or contingent obligations as a
Borrower under any Finance Documents,
whereupon that company shall cease to be a Borrower and shall
have no further rights or obligations under the Finance Documents.
26.4 ADDITIONAL GUARANTORS
1.1 The Original Borrower may request that any of its Subsidiaries
become an Additional Guarantor. That Subsidiary shall become an
Additional Guarantor if:
69
1.1.1 the Original Borrower delivers to the Agent a duly completed
and executed Accession Letter; and
1.1.2 the Agent has received all of the documents and other evidence
listed in Part II of Schedule 2 (Conditions precedent) in
relation to that Additional Guarantor, each in form and
substance satisfactory to the Agent.
1.2 The Agent shall notify the Original Borrower and the Lenders
promptly upon being satisfied that it has received (in form and
substance satisfactory to it) all the documents and other evidence
listed in Part II of Schedule 2 (Conditions precedent).
26.5 REPETITION OF REPRESENTATIONS
Delivery of an Accession Letter constitutes confirmation by the
relevant Subsidiary that the Repeating Representations are true and
correct in relation to it as at the date of delivery as if made by
reference to the facts and circumstances then existing.
26.6 RESIGNATION OF A GUARANTOR
1.1 The Original Borrower may request that a Guarantor (other than the
Original Borrower) ceases to be a Guarantor by delivering to the
Agent a Resignation Letter.
1.2 The Agent shall accept a Resignation Letter and promptly notify the
Original Borrower and the Lenders of its acceptance if no Default is
continuing or would result from the acceptance of the Resignation
Letter (and the Original Borrower has confirmed this is the case).
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SECTION 10
THE FINANCE PARTIES
27. ROLE OF THE AGENT AND THE ARRANGERS
27.1 APPOINTMENT OF THE AGENT
1.1 Each of the Arrangers and the Lenders appoints the Agent to act as
its agent under and in connection with the Finance Documents.
1.2 Each of the Arrangers and the Lenders authorises the Agent to
exercise the rights, powers, authorities and discretions
specifically given to the Agent under or in connection with the
Finance Documents together with any other incidental rights, powers,
authorities and discretions.
27.2 DUTIES OF THE AGENT
1.1 The Agent shall promptly forward to a Party the original or a copy
of any document which is delivered to the Agent for that Party by
any other Party.
1.2 If the Agent receives notice from a Party referring to this
Agreement, describing a Default and stating that the circumstance
described is a Default, it shall promptly notify the Lenders.
1.3 The Agent shall promptly notify the Lenders of any Default arising
under Clause 24.1 (Non-payment).
1.4 The Agent's duties under the Finance Documents are solely mechanical
and administrative in nature.
27.3 ROLE OF THE ARRANGERS
Except as specifically provided in the Finance Documents, the Arrangers
have no obligations of any kind to any other Party under or in
connection with any Finance Document.
27.4 NO FIDUCIARY DUTIES
1.1 Nothing in this Agreement constitutes the Agent or an Arranger as a
trustee or fiduciary of any other person.
1.2 Neither the Agent nor the Arrangers shall be bound to account to any
Lender for any sum or the profit element of any sum received by it
for its own account.
27.5 BUSINESS WITH THE GROUP
The Agent and the Arrangers may accept deposits from, lend money to and
generally engage in any kind of banking or other business with, any
member of the Group.
27.6 RIGHTS AND DISCRETIONS OF THE AGENT
1.1 The Agent may rely on:
1.1.1 any representation, notice or document believed by it to be
genuine, correct and appropriately authorised; and
71
1.1.2 any statement made by a director, authorised signatory or
employee of any person regarding any matters which may
reasonably be assumed to be within his knowledge or within his
power to verify.
1.2 The Agent may assume (unless it has received notice to the contrary
in its capacity as agent for the Lenders) that:
1.2.1 no Default has occurred (unless it has actual knowledge of a
Default arising under Clause 24.1 (Non-payment));
1.2.2 any right, power, authority or discretion vested in any Party
or the Majority Lenders has not been exercised; and
1.2.3 any notice or request made by the Original Borrower (other
than a Utilisation Request, Conversion Notice or Selection
Notice) is made on behalf of and with the consent and
knowledge of all the Obligors.
1.3 The Agent may engage, pay for and rely on the advice or services of
any lawyers, accountants, surveyors or other experts.
1.4 The Agent may act in relation to the Finance Documents through its
personnel and agents.
27.7 MAJORITY LENDERS' INSTRUCTIONS
1.1 Unless a contrary indication appears in a Finance Document, the
Agent shall:
1.1.1 act in accordance with any instructions given to it by the
Majority Lenders (or, if so instructed by the Majority
Lenders, refrain from acting or exercising any right, power,
authority or discretion vested in it as Agent); and
1.1.2 not be liable for any act (or omission) if it acts (or
refrains from taking any action) in accordance with such an
instruction of the Majority Lenders.
1.2 Unless a contrary indication appears in a Finance Document, any
instructions given by the Majority Lenders will be binding on all
the Lenders and the Arrangers.
1.3 The Agent may refrain from acting in accordance with the
instructions of the Majority Lenders (or, if appropriate, the
Lenders) until it has received such security as it may require for
any cost, loss or liability (together with any associated VAT) which
it may incur in complying with the instructions.
1.4 In the absence of instructions from the Majority Lenders, (or, if
appropriate, the Lenders) the Agent may act (or refrain from taking
action) as it considers to be in the best interest of the Lenders.
1.5 The Agent is not authorised to act on behalf of a Lender (without
first obtaining that Lender's consent) in any legal or arbitration
proceedings relating to any Finance Document.
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27.8 RESPONSIBILITY FOR DOCUMENTATION
Neither the Agent nor either Arranger is responsible for:
1.1 the adequacy, accuracy and/or completeness of any information
(whether oral or written) supplied by the Agent, an Arranger, an
Obligor or any other person given in or in connection with any
Finance Document or the Information Memorandum; or
1.2 the legality, validity, effectiveness, adequacy or enforceability of
any Finance Document or any other agreement, arrangement or document
entered into, made or executed in anticipation of or in connection
with any Finance Document.
27.9 EXCLUSION OF LIABILITY
1.1 Without limiting paragraph (b) below, the Agent will not be liable
for any action taken by it under or in connection with any Finance
Document, unless directly caused by its gross negligence or wilful
misconduct.
1.2 No Party may take any proceedings against any officer, employee or
agent of the Agent in respect of any claim it might have against the
Agent or in respect of any act or omission of any kind by that
officer, employee or agent in relation to any Finance Document and
any officer, employee or agent of the Agent may rely on this Clause.
Any third party referred to in this paragraph (b) may enjoy the
benefit of and enforce the terms of this paragraph in accordance
with the provisions of the Contracts (Rights of Third Parties) ▇▇▇
▇▇▇▇.
1.3 The Agent will not be liable for any delay (or any related
consequences) in crediting an account with an amount required under
the Finance Documents to be paid by the Agent if the Agent has taken
all necessary steps as soon as reasonably practicable to comply with
the regulations or operating procedures of any recognised clearing
or settlement system used by the Agent for that purpose.
27.10 LENDERS' INDEMNITY TO THE AGENT
Each Lender shall (in proportion to its share of the Total Commitments
or, if the Total Commitments are then zero, to its share of the Total
Commitments immediately prior to their reduction to zero) indemnify the
Agent, within three Business Days of demand, against any cost, loss or
liability incurred by the Agent (otherwise than by reason of the
Agent's gross negligence or wilful misconduct) in acting as Agent under
the Finance Documents (unless the Agent has been reimbursed by an
Obligor pursuant to a Finance Document).
27.11 RESIGNATION OF THE AGENT
1.1 The Agent may resign and appoint one of its Affiliates as successor
by giving notice to the Lenders and the Original Borrower.
1.2 Alternatively the Agent may resign by giving notice to the Lenders
and the Original Borrower, in which case the Majority Lenders (after
consultation with the Original Borrower) may appoint a successor
Agent.
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1.3 If the Majority Lenders have not appointed a successor Agent in
accordance with paragraph (b) above within 30 days after notice of
resignation was given, the Agent (after consultation with the
Original Borrower) may appoint a successor Agent.
1.4 The retiring Agent shall, at its own cost, make available to the
successor Agent such documents and records and provide such
assistance as the successor Agent may reasonably request for the
purposes of performing its functions as Agent under the Finance
Documents.
1.5 The Agent's resignation notice shall only take effect upon the
appointment of a successor.
1.6 Upon the appointment of a successor, the retiring Agent shall be
discharged from any further obligation in respect of the Finance
Documents but shall remain entitled to the benefit of this Clause
27. Its successor and each of the other Parties shall have the same
rights and obligations amongst themselves as they would have had if
such successor had been an original Party.
1.7 After consultation with the Original Borrower, the Majority Lenders
may, by notice to the Agent, require it to resign in accordance with
paragraph (b) above. In this event, the Agent shall resign in
accordance with paragraph (b) above.
27.12 CONFIDENTIALITY
1.1 In acting as agent for the Finance Parties, the Agent shall be
regarded as acting through its agency division which shall be
treated as a separate entity from any other of its divisions or
departments.
1.2 If information is received by another division or department of the
Agent, it may be treated as confidential to that division or
department and the Agent shall not be deemed to have notice of it.
1.3 Notwithstanding any other provision of any Finance Document to the
contrary, neither the Agent nor either Arranger is obliged to
disclose to any other person:
1.3.1 any confidential information; or
1.3.2 any other information if the disclosure would or might in its
reasonable opinion constitute a breach of any law or a breach
of a fiduciary duty.
27.13 RELATIONSHIP WITH THE LENDERS
1.1 The Agent may treat each Lender as a Lender, entitled to payments
under this Agreement and acting through its Facility Office unless
it has received not less than five Business Days prior notice from
that Lender to the contrary in accordance with the terms of this
Agreement.
1.2 Each Lender shall supply the Agent with any information required by
the Agent in order to calculate the Mandatory Cost in accordance
with Schedule 4 (Mandatory Cost formulae).
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27.14 CREDIT APPRAISAL BY THE LENDERS
Without affecting the responsibility of any Obligor for information
supplied by it or on its behalf in connection with any Finance
Document, each Lender confirms to the Agent and the Arrangers that it
has been, and will continue to be, solely responsible for making its
own independent appraisal and investigation of all risks arising under
or in connection with any Finance Document including but not limited to:
1.1 the financial condition, status and nature of each member of the
Group;
1.2 the legality, validity, effectiveness, adequacy or enforceability of
any Finance Document and any other agreement, arrangement or
document entered into, made or executed in anticipation of, under or
in connection with any Finance Document;
1.3 whether that Lender has recourse, and the nature and extent of that
recourse, against any Party or any of its respective assets under or
in connection with any Finance Document, the transactions
contemplated by the Finance Documents or any other agreement,
arrangement or document entered into, made or executed in
anticipation of, under or in connection with any Finance Document;
and
1.4 the adequacy, accuracy and/or completeness of the Information
Memorandum and any other information provided by the Agent, any
Party or by any other person under or in connection with any Finance
Document, the transactions contemplated by the Finance Documents or
any other agreement, arrangement or document entered into, made or
executed in anticipation of, under or in connection with any Finance
Document.
27.15 REFERENCE BANKS
If a Reference Bank (or, if a Reference Bank is not a Lender, the
Lender of which it is an Affiliate) ceases to be a Lender, the Agent
shall (in consultation with the Original Borrower) appoint another
Lender or an Affiliate of a Lender to replace that Reference Bank.
27.16 AGENT'S MANAGEMENT TIME
Any amount payable to the Agent under Clause 16.3 (Indemnity to the
Agent) (other than under paragraph (b) of that Clause), Clause 18
(Costs and expenses) (other than under Clause 18.1 (Transaction
expenses)) or Clause 27.10 (Lenders' indemnity to the Agent) shall
include the cost of utilising the Agent's management time or other
resources and will be calculated on the basis of such reasonable daily
or hourly rates as the Agent may notify to the Original Borrower and
the Lenders, and is in addition to any fee paid or payable to the Agent
under Clause 13 (Fees).
28. CONDUCT OF BUSINESS BY THE FINANCE PARTIES
No provision of this Agreement shall:
1.1 interfere with the right of any Finance Party to arrange its affairs
(tax or otherwise) in whatever manner it thinks fit;
1.2 oblige any Finance Party to investigate or claim any credit, relief,
remission or repayment available to it or the extent, order and
manner of any claim; or
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1.3 oblige any Finance Party to disclose any information relating to its
affairs (tax or otherwise) or any computations in respect of Tax.
29. SHARING AMONG THE LENDERS
29.1 PAYMENTS TO LENDERS
If a Lender (a "RECOVERING LENDER") receives or recovers any amount
from an Obligor other than in accordance with Clause 30 (Payment
mechanics) or Clause 14.3 (Tax indemnity) and applies that amount to a
payment due under the Finance Documents then:
1.1 the Recovering Lender shall, within three Business Days, notify
details of the receipt or recovery, to the Agent;
1.2 the Agent shall determine whether the receipt or recovery is in
excess of the amount the Recovering Lender would have been paid had
the receipt or recovery been received or made by the Agent and
distributed in accordance with Clause 30 (Payment mechanics),
without taking account of any Tax which would be imposed on the
Agent in relation to the receipt, recovery or distribution; and
1.3 the Recovering Lender shall, within three Business Days of demand by
the Agent, pay to the Agent an amount (the "SHARING PAYMENT") equal
to such receipt or recovery less any amount which the Agent
determines may be retained by the Recovering Lender as its share of
any payment to be made, in accordance with Clause 30.5 (Partial
payments).
29.2 REDISTRIBUTION OF PAYMENTS
The Agent shall treat the Sharing Payment as if it had been paid by the
relevant Obligor and distribute it between the Finance Parties (other
than the Recovering Lender) in accordance with Clause 30.5 (Partial
payments).
29.3 RECOVERING LENDER'S RIGHTS
1.1 On a distribution by the Agent under Clause 29.2 (Redistribution of
payments), the Recovering Lender will be subrogated to the rights of
the Finance Parties which have shared in the redistribution.
1.2 If and to the extent that the Recovering Lender is not able to rely
on its rights under paragraph (a) above, the relevant Obligor shall
be liable to the Recovering Lender for a debt equal to the Sharing
Payment which is immediately due and payable.
29.4 REVERSAL OF REDISTRIBUTION
If any part of the Sharing Payment received or recovered by a
Recovering Lender becomes repayable and is repaid by that Recovering
Lender, then:
1.1 each Lender which has received a share of the relevant Sharing
Payment pursuant to Clause 29.2 (Redistribution of payments) shall,
upon request of the Agent, pay to the Agent for account of that
Recovering Lender an amount equal to its share of the Sharing
Payment (together with an amount as is necessary to reimburse that
Recovering Lender for its proportion of any interest on the Sharing
Payment which that Recovering Lender is required to pay); and
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1.2 that Recovering Lender's rights of subrogation in respect of any
reimbursement shall be cancelled and the relevant Obligor will be
liable to the reimbursing Lender for the amount so reimbursed.
29.5 EXCEPTIONS
1.1 This Clause 29 shall not apply to the extent that the Recovering
Lender would not, after making any payment pursuant to this Clause,
have a valid and enforceable claim against the relevant Obligor.
1.2 A Recovering Lender is not obliged to share with any other Lender
any amount which the Recovering Lender has received or recovered as
a result of taking legal or arbitration proceedings, if:
1.2.1 it notified the other Lenders of the legal or arbitration
proceedings; and
1.2.2 the other Lender had an opportunity to participate in those
legal or arbitration proceedings but did not do so as soon as
reasonably practicable having received notice or did not take
separate legal or arbitration proceedings.
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SECTION 11
ADMINISTRATION
30. PAYMENT MECHANICS
30.1 PAYMENTS TO THE AGENT
1.1 On each date on which an Obligor or a Lender is required to make a
payment under a Finance Document, that Obligor or Lender shall make
the same available to the Agent (unless a contrary indication
appears in a Finance Document) for value on the due date at the time
and in such funds specified by the Agent as being customary at the
time for settlement of transactions in the relevant currency in the
place of payment.
1.2 Payment shall be made to such account in the principal financial
centre of the country of that currency (or, in relation to euro, in
a principal financial centre in a Participating Member State or
London) with such bank as the Agent specifies.
30.2 DISTRIBUTIONS BY THE AGENT
Each payment received by the Agent under the Finance Documents for
another Party shall, subject to Clause 30.3 (Distributions to an
Obligor) and Clause 30.4 (Clawback) be made available by the Agent as
soon as practicable after receipt to the Party entitled to receive
payment in accordance with this Agreement (in the case of a Lender, for
the account of its Facility Office), to such account as that Party may
notify to the Agent by not less than five Business Days' notice with a
bank in the principal financial centre of the country of that currency
(or, in relation to euro, in the principal financial centre of a
Participating Member State or London).
30.3 DISTRIBUTIONS TO AN OBLIGOR
The Agent may (with the consent of the relevant Obligor or in
accordance with Clause 31 (Set-off)) apply any amount received by it
for that Obligor in or towards payment (on the date and in the currency
and funds of receipt) of any amount due from that Obligor under the
Finance Documents or in or towards purchase of any amount of any
currency to be so applied.
30.4 CLAWBACK
1.1 Where a sum is to be paid to the Agent under the Finance Documents
for another Party, the Agent is not obliged to pay that sum to that
other Party (or to enter into or perform any related exchange
contract) until it has been able to establish to its satisfaction
that it has actually received that sum.
1.2 If the Agent pays an amount to another Party and it proves to be the
case that the Agent had not actually received that amount, then the
Party to whom that amount (or the proceeds of any related exchange
contract) was paid by the Agent shall on demand refund the same to
the Agent together with interest on that amount from the date of
payment to the date of receipt by the Agent, calculated by the Agent
to reflect its cost of funds.
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30.5 PARTIAL PAYMENTS
1.1 If the Agent receives a payment that is insufficient to discharge
all the amounts then due and payable by an Obligor under the Finance
Documents, the Agent shall apply that payment towards the
obligations of that Obligor under the Finance Documents in the
following order:
1.1.1 FIRST, in or towards payment pro rata of any unpaid fees,
costs and expenses of the Agent and the Arrangers under the
Finance Documents;
1.1.2 SECONDLY, in or towards payment pro rata of any accrued
interest or commission due but unpaid under this Agreement;
1.1.3 THIRDLY, in or towards payment pro rata of any principal due
but unpaid under this Agreement; and
1.1.4 FOURTHLY, in or towards payment pro rata of any other sum due
but unpaid under the Finance Documents.
1.2 The Agent shall, if so directed by the Majority Lenders, vary the
order set out in paragraphs (a)(ii) to (iv) above.
1.3 Paragraphs (a) and (b) above will override any appropriation made by
an Obligor.
30.6 NO SET-OFF BY OBLIGORS
All payments to be made by an Obligor under the Finance Documents shall
be calculated and be made without (and free and clear of any deduction
for) set-off or counterclaim.
30.7 BUSINESS DAYS
1.1 Any payment which is due to be made on a day that is not a Business
Day shall be made on the next Business Day in the same calendar
month (if there is one) or the preceding Business Day (if there is
not).
1.2 During any extension of the due date for payment of any principal or
an Unpaid Sum under this Agreement interest is payable on the
principal at the rate payable on the original due date.
30.8 CURRENCY OF ACCOUNT
1.1 Subject to paragraphs (b) to (e) below, the Base Currency is the
currency of account and payment for any sum due from an Obligor
under any Finance Document.
1.2 A repayment of a Loan or Unpaid Sum or a part of a Loan or Unpaid
Sum shall be made in the currency in which that Loan or Unpaid Sum
is denominated on its due date.
1.3 Each payment of interest shall be made in the currency in which the
sum in respect of which the interest is payable was denominated when
that interest accrued.
1.4 Each payment in respect of costs, expenses or Taxes shall be made in
the currency in which the costs, expenses or Taxes are incurred.
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1.5 Any amount expressed to be payable in a currency other than the Base
Currency shall be paid in that other currency.
30.9 CHANGE OF CURRENCY
1.1 Unless otherwise prohibited by law, if more than one currency or
currency unit are at the same time recognised by the central bank of
any country as the lawful currency of that country, then:
1.1.1 any reference in the Finance Documents to, and any obligations
arising under the Finance Documents in, the currency of that
country shall be translated into, or paid in, the currency or
currency unit of that country designated by the Agent (after
consultation with the Original Borrower); and
1.1.2 any translation from one currency or currency unit to another
shall be at the official rate of exchange recognised by the
central bank for the conversion of that currency or currency
unit into the other, rounded up or down by the Agent (acting
reasonably).
1.2 If a change in any currency of a country occurs, this Agreement
will, to the extent the Agent (acting reasonably and after
consultation with the Original Borrower) specifies to be necessary,
be amended to comply with any generally accepted conventions and
market practice in the Relevant Interbank Market and otherwise to
reflect the change in currency.
31. SET-OFF
A Finance Party may set off any matured obligation due from an Obligor
under the Finance Documents (to the extent beneficially owned by that
Finance Party) against any matured obligation owed by that Finance
Party to that Obligor, regardless of the place of payment, booking
branch or currency of either obligation. If the obligations are in
different currencies, the Finance Party may convert either obligation
at a market rate of exchange in its usual course of business for the
purpose of the set-off.
32. NOTICES
32.1 COMMUNICATIONS IN WRITING
Any communication to be made under or in connection with the Finance
Documents shall be made in writing and, unless otherwise stated, may be
made by fax or letter.
32.2 ADDRESSES
The address and fax number (and the department or officer, if any, for
whose attention the communication is to be made) of each Party for any
communication or document to be made or delivered under or in
connection with the Finance Documents is:
1.1 in the case of the Original Borrower, that identified with its name
below;
1.2 in the case of each Lender or any other Obligor, that notified in
writing to the Agent on or prior to the date on which it becomes a
Party; and
1.3 in the case of the Agent and each Arranger, that identified with its
name below,
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or any substitute address, fax number, or department or officer as
the Party may notify to the Agent (or the Agent may notify to the
other Parties, if a change is made by the Agent) by not less than
five Business Days' notice.
32.3 DELIVERY
1.1 Any communication or document made or delivered by one person to
another under or in connection with the Finance Documents will only
be effective:
1.1.1 if by way of fax, when received in legible form; or
1.1.2 if by way of letter, when it has been left at the relevant
address or five Business Days after being deposited in the
post postage prepaid in an envelope addressed to it at that
address,
and, if a particular department or officer is specified as part
of its address details provided under Clause 32.2 (Addresses), if
addressed to that department or officer.
1.2 Any communication or document to be made or delivered to the Agent
will be effective only when actually received by the Agent and then
only if it is expressly marked for the attention of the department
or officer identified with the Agent's signature below (or any
substitute department or officer as the Agent shall specify for this
purpose).
1.3 All notices from or to an Obligor shall be sent through the Agent.
1.4 Any communication or document made or delivered to the Original
Borrower in accordance with this Clause will be deemed to have been
made or delivered to each of the Obligors.
32.4 NOTIFICATION OF ADDRESS AND FAX NUMBER
Promptly upon receipt of notification of an address and number or
change of address or fax number pursuant to Clause 32.2 (Addresses) or
changing its own address or fax number, the Agent shall notify the
other Parties.
32.5 ENGLISH LANGUAGE
1.1 Any notice given under or in connection with any Finance Document
must be in English.
1.2 All other documents provided under or in connection with any Finance
Document must be:
1.2.1 in English; or
1.2.2 if not in English, and if so required by the Agent,
accompanied by a certified English translation and, in this
case, the English translation will prevail unless the document
is a constitutional, statutory or other official document.
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33. CALCULATIONS AND CERTIFICATES
33.1 ACCOUNTS
In any litigation or arbitration proceedings arising out of or in
connection with a Finance Document, the entries made in the accounts
maintained by a Finance Party are prima facie evidence of the matters
to which they relate.
33.2 CERTIFICATES AND DETERMINATIONS
Any certification or determination by a Finance Party of a rate or
amount under any Finance Document is, in the absence of manifest error,
conclusive evidence of the matters to which it relates.
33.3 DAY COUNT CONVENTION
Any interest, commission or fee accruing under a Finance Document will
accrue from day to day and is calculated on the basis of the actual
number of days elapsed and a year of 360 days or, in any case where the
practice in the Relevant Interbank Market differs, in accordance with
that market practice.
34. PARTIAL INVALIDITY
If, at any time, any provision of the Finance Documents is or becomes
illegal, invalid or unenforceable in any respect under any law of any
jurisdiction, neither the legality, validity or enforceability of the
remaining provisions nor the legality, validity or enforceability of
such provision under the law of any other jurisdiction will in any way
be affected or impaired.
35. REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of any
Finance Party, any right or remedy under the Finance Documents shall
operate as a waiver, nor shall any single or partial exercise of any
right or remedy prevent any further or other exercise or the exercise
of any other right or remedy. The rights and remedies provided in this
Agreement are cumulative and not exclusive of any rights or remedies
provided by law.
36. AMENDMENTS AND WAIVERS
36.1 REQUIRED CONSENTS
1.1 Subject to Clause 36.2 (Exceptions) any term of the Finance
Documents may be amended or waived only with the consent of the
Majority Lenders and the Obligors and any such amendment or waiver
will be binding on all Parties.
1.2 The Agent may effect, on behalf of any Finance Party, any amendment
or waiver permitted by this Clause.
36.2 EXCEPTIONS
1.1 An amendment or waiver that has the effect of changing or which
relates to:
1.1.1 the definition of "MAJORITY LENDERS" in Clause 1.1
(Definitions);
1.1.2 an extension to the date of payment of any amount under the
Finance Documents;
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1.1.3 a reduction in the Margin or the amount of any payment of
principal, interest, fees or commission payable;
1.1.4 an increase in Commitment;
1.1.5 a change to the Borrowers or Guarantors other than in
accordance with Clause 25 (Changes to the Obligors);
1.1.6 any provision which expressly requires the consent of all the
Lenders; or
1.1.7 Clause 2.2 (Lenders' rights and obligations), Clause 25
(Changes to the Lenders) or this Clause 36,
shall not be made without the prior consent of all the Lenders.
1.2 An amendment or waiver which relates to the rights or obligations of
the Agent or the Arrangers may not be effected without the consent
of the Agent or the Arrangers.
37. COUNTERPARTS
Each Finance Document may be executed in any number of counterparts,
and this has the same effect as if the signatures on the counterparts
were on a single copy of the Finance Document.
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SECTION 12
GOVERNING LAW AND ENFORCEMENT
38. GOVERNING LAW
This Agreement is governed by English law.
39. ENFORCEMENT
39.1 JURISDICTION OF ENGLISH COURTS
1.1 The courts of England have exclusive jurisdiction to settle any
dispute arising out of or in connection with this Agreement
(including a dispute regarding the existence, validity or
termination of this Agreement) (a "DISPUTE").
1.2 The Parties agree that the courts of England are the most
appropriate and convenient courts to settle Disputes and accordingly
no Party will argue to the contrary.
1.3 This Clause 39.1 is for the benefit of the Finance Parties only. As
a result, no Finance Party shall be prevented from taking
proceedings relating to a Dispute in any other courts with
jurisdiction. To the extent allowed by law, the Finance Parties may
take concurrent proceedings in any number of jurisdictions.
39.2 SERVICE OF PROCESS
Without prejudice to any other mode of service allowed under any
relevant law, each Additional Obligor (other than an Additional Obligor
incorporated in England and Wales):
1.1 irrevocably appoints the Original Borrower as its agent for service
of process in relation to any proceedings before the English courts
in connection with any Finance Document; and
1.2 agrees that failure by a process agent to notify the relevant
Additional Obligor of the process will not invalidate the
proceedings concerned.
The Original Borrower irrevocably and unconditionally accepts that
appointment.
THIS AGREEMENT HAS BEEN ENTERED INTO ON THE DATE STATED AT THE BEGINNING OF
THIS AGREEMENT.
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SCHEDULE 8
ORIGINAL PARTIES
PART I
ORIGINAL OBLIGORS
NAME OF ORIGINAL GUARANTOR REGISTRATION NUMBER
(OR EQUIVALENT, IF ANY)
MISYS plc 1360027
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PART II
ORIGINAL LENDERS
NAME OF ORIGINAL LENDER REVOLVING
COMMITMENT
($)
The Chase Manhattan Bank 350,000,000
Lloyds TSB Bank Plc 350,000,000
TOTAL 700,000,000
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SCHEDULE 9
CONDITIONS PRECEDENT
PART I
CONDITIONS PRECEDENT TO INITIAL UTILISATION
1. ORIGINAL OBLIGORS
1.1 A copy of the constitutional documents of each Original Obligor.
1.2 A copy of a resolution of the board of directors of each Original
Obligor:
1.2.1 approving the terms of, and the transactions contemplated by,
the Finance Documents to which it is a party and resolving
that it execute the Finance Documents to which it is a party;
1.2.2 authorising a specified person or persons to execute the
Finance Documents to which it is a party on its behalf; and
1.2.3 authorising a specified person or persons, on its behalf, to
sign and/or despatch all documents and notices (including, if
relevant, any Utilisation Request, Conversion Notice or
Selection Notice) to be signed and/or despatched by it under
or in connection with the Finance Documents to which it is a
party.
1.3 A specimen of the signature of each person authorised by the
resolution referred to in paragraph (b) above.
1.4 A copy of a resolution signed by all the holders of the issued
shares in each Original Guarantor (other than the Original
Borrower), approving the terms of, and the transactions contemplated
by, the Finance Documents to which the Original Guarantor is a
party.
1.5 A certificate of the Original Borrower (signed by a director)
confirming that borrowing and/or guaranteeing the Total Commitments
would not cause any borrowing, guaranteeing or similar limit binding
on any Original Obligor to be exceeded.
1.6 A certificate of an authorised signatory of the relevant Original
Obligor certifying that each copy document relating to it specified
in this Part I of Schedule 2 is correct, complete and in full force
and effect as at a date no earlier than the date of this Agreement.
2. LEGAL OPINION
A legal opinion of ▇▇▇▇▇▇▇▇ Chance LLP, legal advisers to the Arrangers
and the Agent in England, substantially in the form distributed to the
Original Lenders prior to signing this Agreement.
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3. OTHER DOCUMENTS AND EVIDENCE
3.1 The Original Financial Statements of each Original Obligor.
3.2 Evidence that the Original Borrower's multicurrency revolving credit
agreement dated 5 September 1997 has been cancelled.
3.3 A certificate of an authorised signatory of the Original Borrower
certifying that, as at the date of this Agreement, the only
Principal Subsidiaries are those set out in that certificate.
3.4 Evidence that the fees, costs and expenses then due from the
Original Borrower pursuant to Clause 13 (Fees) and Clause 18 (Costs
and expenses) have been paid or will be paid on or before the first
Utilisation Date.
3.5 The Agent's standard form of payment instruction duly completed by
the Original Borrower.
88
PART II
CONDITIONS PRECEDENT REQUIRED TO BE DELIVERED
BY AN ADDITIONAL OBLIGOR
4. An Accession Letter, duly executed by the Additional Obligor and the
Original Borrower.
5. A copy of the constitutional documents of the Additional Obligor.
6. A copy of a resolution of the board of directors of the Additional
Obligor:
6.1 approving the terms of, and the transactions contemplated by, the
Accession Letter and the Finance Documents and resolving that it
execute the Accession Letter;
6.2 authorising a specified person or persons to execute the Accession
Letter on its behalf; and
6.3 authorising a specified person or persons, on its behalf, to sign
and/or despatch all other documents and notices (including, in
relation to an Additional Borrower, any Utilisation Request or
Selection Notice) to be signed and/or despatched by it under or in
connection with the Finance Documents.
7. A specimen of the signature of each person authorised by the resolution
referred to in paragraph 3 above.
8. A copy of a resolution signed by all the holders of the issued shares
of the Additional Guarantor, approving the terms of, and the
transactions contemplated by, the Finance Documents to which the
Additional Guarantor is a party.
9. A certificate of the Additional Obligor (signed by a director)
confirming that borrowing or guaranteeing, as appropriate, the Total
Commitments would not cause any borrowing, guaranteeing or similar
limit binding on it to be exceeded.
10. A certificate of an authorised signatory of the Additional Obligor
certifying that each copy document listed in this Part II of Schedule 2
is correct, complete and in full force and effect as at a date no
earlier than the date of the Accession Letter.
11. A copy of any other Authorisation (including in relation to any
prohibition on the giving of financial assistance) which the Agent
considers to be necessary or desirable in connection with the entry
into and performance of the Additional Obligor's obligations under the
Accession Letter or for the validity and enforceability of any Finance
Document.
12. If available, the latest audited financial statements (consolidated,
where available) of the Additional Obligor.
13. A legal opinion of ▇▇▇▇▇▇▇▇ Chance LLP, legal advisers to the Arrangers
and the Agent in England.
89
14. If the Additional Obligor is incorporated in a jurisdiction other than
England and Wales, a legal opinion of the legal advisers to the
Arrangers and the Agent in the jurisdiction in which the Additional
Obligor is incorporated.
15. If the Additional Obligor is an Additional Borrower, the Agent's
standard form of payment instruction duly completed by the Additional
Borrower.
90
SCHEDULE 10
REQUESTS
PART I
UTILISATION REQUEST
From: [Borrower]
To: [Agent]
Dated:
Dear Sirs
$700,000,000 MULTICURRENCY FACILITY AGREEMENT DATED [-] JUNE 2001
(THE "FACILITY AGREEMENT")
UTILISATION REQUEST
1. We refer to the Facility Agreement. Definitions in the Facility
Agreement apply in this Utilisation Request.
2. We give you notice that we wish to borrow a Revolving Loan on the
following terms:
Proposed Utilisation Date: [-] (or, if that is not a
Business Day, the next Business Day)
Currency of Loan: [-]
Amount: [-] or, if less, the Available Revolving
Facility
Interest Period: [-]
2. We confirm that each condition specified in Clause 4.2 (Further
conditions precedent) is satisfied on the date of this Utilisation
Request.
3. The proceeds of this Revolving Loan should be credited to [account].
3. This Utilisation Request is irrevocable [and relates to the
Sunshine/Derwent Acquisition].
Yours faithfully
.......................................
authorised signatory for
[name of relevant Borrower]
91
PART II
SELECTION NOTICE
From: [Borrower]
To: [Agent]
Dated:
Dear Sirs
$700,000,000 MULTICURRENCY FACILITY AGREEMENT DATED [-] JUNE 2001
(THE "FACILITY AGREEMENT")
SELECTION NOTICE
1. We refer to the Facility Agreement. Definitions in the Facility
Agreement apply in this Selection Notice.
2. We refer to the following Term Loan[s] in [identify currency] with an
Interest Period ending on [-].*
3. [We request that the above Term Loan[s] be divided into [-] Term Loans
with the following Base Currency Amounts and Interest Periods:]**
or
[We request that the next Interest Period for the above Term Loan[s] is
[-]].***
4. We request that the above Term Loan[s] [is]/[are] [denominated in the same
currency for the next Interest Period]/[denominated in the following
currencies: [-]. As this results in a change of currency we confirm that
each condition specified in Clause 4.2 (Further conditions precedent) is
satisfied on the date of this Selection Notice.
5. The proceeds of any change in currency should be credited to [account].] .
6. This Selection Notice is irrevocable.
Yours faithfully
.....................................
authorised signatory for
[MISYS PLC on behalf of] [name of relevant Borrower]
-----------------------------
* Insert details of all Term Loans in the same currency which have an
Interest Period ending on the same date.
** Use this option if division of Term Loans is requested.
*** Use this option if sub-division is not required.
92
PART III
CONVERSION NOTICE
From: MISYS plc
To: [Agent]
Dated:
Dear Sirs
$700,000,000 MULTICURRENCY FACILITY AGREEMENT DATED [-] JUNE 2001
(THE "FACILITY AGREEMENT")
CONVERSION NOTICE
7. We refer to the Facility Agreement. Definitions in the Facility
Agreement apply in this Conversion Notice.
8. We give you notice under Clause 7 (Term Out Option) of the Facility
Agreement that on the Revolving Facility Termination Date, we wish to
convert [the Revolving Loan[s] into [a] Term Loan as follows]
BORROWER AMOUNT OF BASE CURRENCY INITIAL
TERM LOAN CURRENCY INTEREST
AMOUNT PERIOD
[-] [-] [-] [-] [-]
OR
[the following Revolving Loan[s] into Term Loans as follows]
[In relation to each Revolving Loan insert amount of each Term Loan
into which it will be converted, the Borrower, the Base Currency
Amount, currency and duration of initial Interest Period]
1. We confirm that each condition specified in Clause 4.2 (Further
conditions precedent) is satisfied on the date of this Conversion
Notice.
2. The proceeds of any change in currency should be credited to
[account].
3. This Conversion Notice is irrevocable.
Yours faithfully
.....................................
authorised signatory for
MISYS PLC
93
SCHEDULE 11
MANDATORY COST FORMULAE
1. The Mandatory Cost is an addition to the interest rate in relation to
the cost of compliance with (a) the requirements of the Bank of England
and/or the Financial Services Authority (or, in either case, any other
authority which replaces all or any of its functions) or (b) the
requirements of the European Central Bank.
2. On the first day of each Interest Period (or as soon as possible
thereafter) the Agent shall calculate, as a percentage rate, a rate
(THE "ADDITIONAL COST RATE") in accordance with the paragraphs set out
below. The Mandatory Cost will be calculated by the Agent as the
average of the rates supplied by the Reference Banks 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 determined by
the Agent as the cost of complying with the minimum reserve
requirements of the European Central Bank.
4. The Additional Cost Rate for any Lender lending from a Facility Office
in the United Kingdom will be calculated by the Agent as follows:
4.1 in relation to a domestic sterling Loan:
AB + C(B-D)+E x 0.01
------------------------ per cent. per annum
100-(A+C)
4.2 in relation to a Loan in any currency other than domestic 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 Reference Bank is
from time to time required to maintain as an interest free cash
ratio deposit with the Bank of England to comply with cash ratio
requirements.
B is the percentage rate of interest (excluding the Margin and the
Mandatory Cost) payable for the relevant Interest Period on the
Loan.
C is the percentage (if any) of Eligible Liabilities which that
Reference Bank is required from time to time to maintain as
interest bearing Special Deposits with the Bank of England.
D is the percentage rate per annum payable by the Bank of England
to the Agent on interest bearing Special Deposits.
94
E is the rate of charge payable by that Reference Bank to the
Financial Services Authority pursuant to the Fees Regulations
(but, for this purpose, ignoring any minimum fee required
pursuant to the Fees Regulations) and expressed in pounds per
(Pounds Sterling)1,000,000 of the Fee Base of that Reference Bank.
5. For the purposes of this Schedule:
5.1 "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;
5.2 "FEES REGULATIONS" means the Banking Supervision (Fees) Regulations
2001 or such other law or regulation as may be in force from time to
time in respect of the payment of fees for banking supervision; and
5.3 "FEE BASE" has the meaning given to it, and will be calculated in
accordance with, the Fees Regulations.
6. In application of the above formulae, A, B, C and D will be included in
the formulae as percentages (i.e. 5 per cent. will be included in the
formula as 5 and not as 0.05). A negative result obtained by
subtracting D from B shall be taken as zero. The resulting figures
shall be rounded to four decimal places.
7. Each Reference Bank shall supply any information required by the Agent
for the purpose of calculating its Additional Cost Rate. In
particular, but without limitation, each Reference Bank shall supply
the following information in writing on or prior to the date on which
it becomes a Reference Bank:
7.1 its jurisdiction of incorporation and the jurisdiction of its
Facility Office; and
7.2 any other information that the Agent may reasonably require for such
purpose.
Each Reference Bank shall promptly notify the Agent in writing of any
change to the information provided by it pursuant to this paragraph.
8. The percentages or rates of charge of each Reference Bank for the
purpose of A, C and E above shall be determined by the Agent based upon
the information supplied to it pursuant to paragraph 7 above and on the
assumption that, unless a Reference Bank notifies the Agent to the
contrary, each Reference Bank's obligations in relation to cash ratio
deposits, Special Deposits and the Fees Regulations are the same as
those of a typical bank from its jurisdiction of incorporation with a
Facility Office in the same jurisdiction as its Facility Office.
9. The Agent shall have no liability to any person if such determination
results in an Additional Cost Rate which over or under compensates any
Lender and shall be entitled to assume that the information provided by
any Reference Bank pursuant to paragraphs 3 and 7 above is true and
correct in all respects.
95
10. Any determination by the Agent pursuant to this Schedule in relation to
a formula, the Mandatory Cost, an Additional Cost Rate or any amount
payable to a Lender shall, in the absence of manifest error, be
conclusive and binding on all Parties.
11. The Agent may from time to time, after consultation with the Original
Borrower and the Lenders, determine and notify to all Parties any
amendments which are required to be made to this Schedule in order to
comply with any change in law, regulation or any requirements from time
to time imposed by the Bank of England, the Financial Services
Authority or the European Central Bank (or, in any case, any other
authority which replaces all or any of its functions) and any such
determination shall, in the absence of manifest error, be conclusive
and binding on all Parties.
96
SCHEDULE 12
FORM OF TRANSFER CERTIFICATES
PART I
To: [ ] as Agent
From: [The Existing Lender] (the "EXISTING LENDER") and [The New Lender] (the
"NEW LENDER")
Dated:
$700,000,000 MULTICURRENCY FACILITY AGREEMENT DATED [-] JUNE 2001
(THE "FACILITY AGREEMENT")
TRANSFER CERTIFICATE
1. We refer to Clause 25.5 (Procedure for transfer):
1.1 The Existing Lender and the New Lender agree to the Existing Lender
and the New Lender transferring by novation all or part of the
Existing Lender's Commitment, rights and obligations referred to in
the Schedule in accordance with Clause 25.5 (Procedure for
transfer).
1.2 The proposed Transfer Date is [-].
1.3 The Facility Office and address, fax number and attention details
for notices of the New Lender for the purposes of Clause 32.2
(Addresses) are set out in the Schedule.
2. The New Lender expressly acknowledges the limitations on the Existing
Lender's obligations set out in paragraph (c) of Clause 25.4
(Limitation of responsibility of Existing Lenders).
3. [The New Lender is a UK Non-Bank Lender and gives the Tax Confirmation
by signing this Transfer Certificate.]
4. This Transfer Certificate is governed by English law.
THE SCHEDULE
COMMITMENT/RIGHTS AND OBLIGATIONS TO BE TRANSFERRED
[insert relevant details]
[Facility Office address, fax number and attention details for notices and
account details for payments,]
[Existing Lender] [New Lender]
By: By:
97
This Transfer Certificate is accepted by the Agent and the Transfer
Date is confirmed as [-].
[Agent]
By:
98
PART II
LMA TRANSFER CERTIFICATE (PAR)
TRANSFEROR: Date: [-]
TRANSFEREE:
This Transfer Certificate is entered into pursuant to (i) the agreement (the
"SALE AGREEMENT") evidenced by the Confirmation dated [-] between the
Transferor and the Transferee (acting directly or through their respective
agents) and (ii) the Credit Agreement.
On the Transfer Date, the transfer by way of novation from the Transferor to
the Transferee on the terms set out herein and in the Credit Agreement shall
become effective subject to:-
5. the Sale Agreement and the terms and conditions incorporated in the
Sale Agreement;
6. the terms and conditions annexed hereto; and
7. the Schedule annexed hereto,
all of which are incorporated herein by reference.
THE TRANSFEROR THE TRANSFEREE
[ ] [ ]
By: By:
99
THE SCHEDULE
CREDIT AGREEMENT DETAILS:
Borrower(s): _________________________________________
Credit Agreement Dated _________________________________________
Guarantor(s): _________________________________________
Agent Bank: [ ] No [ ] Yes (specify)________________
Security: _________________________________________
Total Facility Amount: _________________________________________
Governing Law: _________________________________________
Additional Information: _________________________________________
TRANSFER DETAILS:
Name of Tranche Facility: _________________ __________________
Nature (Revolving, Term, Acceptances
Guarantee/Letter of Credit, Other): _________________ __________________
Final Maturity: _________________ __________________
Participation Transferred
Commitment transferred(1) _________________ __________________
Drawn Amount (details below):(1) _________________ __________________
Undrawn Amount:(1) _________________ __________________
Settlement Date: _________________________________________
Details of outstanding Credits(1)
Specify in respect of each Credit:
Transferred Portion (amount): _________________
Tranche/Facility: _________________
Nature: [ ] Term [ ] Revolver
[ ] Acceptance [ ] Guarantee/Letter of Credit
[ ] Other (specify)_______________________
[ ] Details of other Credits are set out on the attached sheet
ADMINISTRATION DETAILS
Transferor's Receiving Account: ________________________________
Transferee's Receiving Account: ________________________________
ADDRESSES
Transferor Transferee
[ ] [ ]
Address: Address:
Telephone: Telephone:
Facsimile: Facsimile:
Telex: Telex:
Attn/Ref Attn/Ref
----------------
(1) As at the date of the Transfer Certificate
100
TERMS AND CONDITIONS
These are the Terms and Conditions applicable to the transfer certificate
including the Schedule thereto (the "TRANSFER CERTIFICATE") to which they are
annexed.
1. INTERPRETATION
In these Terms and Conditions words and expressions shall (unless
otherwise expressly defined herein) bear the meaning given to them in
the Transfer Certificate, the Credit Agreement or the Sale Agreement.
2. TRANSFER
The Transferor requests the Transferee to accept and procure the
transfer by novation of all or a part (as applicable) of such
participation of the Transferor under the Credit Agreement as is set
out in the relevant part of the Transfer Certificate under the heading
"Participation Transferred" (the "PURCHASED ASSETS") by counter-signing
and delivering the Transfer Certificate to the Agent at its address for
the service of notice specified in the Credit Agreement. On the
Transfer Date the Transferee shall pay to the Transferor the Settlement
Amount as specified in the pricing letter between the Transferor and
the Transferee dated the date of the Transfer Certificate (adjusted, if
applicable, in accordance with the Sale Agreement) and completion of
the transfer will take place.
3. EFFECTIVENESS OF TRANSFER
The Transferee hereby requests the Agent to accept the Transfer
Certificate as being delivered to the Agent pursuant to and for the
purposes of the Credit Agreement so as to take effect in accordance
with the terms of the Credit Agreement on the Transfer Date or on such
later date as may be determined in accordance with the terms thereof.
4. TRANSFEREE'S UNDERTAKING
The Transferee hereby undertakes with the Agent and the Transferor and
each of the other parties to the Credit Documentation that it will
perform in accordance with its terms all those obligations which by the
terms thereof will be assumed by it after delivery of the Transfer
Certificate to the Agent and satisfaction of the conditions (if any)
subject to which the Transfer Certificate is to take effect.
5. PAYMENTS
5.1 PLACE
All payments by either party to the other under the Transfer
Certificate shall be made to the Receiving Account of that other
party. Each party may designate a different account as its Receiving
Account for payment by giving the other not less than five Business
Days notice before the due date for payment.
101
5.2 FUNDS
Payments under the Transfer Certificate shall be made in the currency
in which the amount is denominated for value on the due date at such
times and in such funds as are customary at the time for settlement of
transactions in that currency.
6. THE AGENT
The Agent shall not be required to concern itself with the Sale
Agreement and may rely on the Transfer Certificate without taking
account of the provisions of such agreement.
7. ASSIGNMENT OF RIGHTS
The Transfer Certificate shall be binding upon and enure to the benefit
of each party and its successors and permitted assigns provided that
neither party may assign or transfer its rights thereunder without the
prior written consent of the other party.
8. GOVERNING LAW AND JURISDICTION
The Transfer Certificate (including, without limitation, these Terms
and Conditions) shall be governed by and construed in accordance with
the laws of England, and the parties submit to the non-exclusive
jurisdiction of the English courts.
Each party irrevocably appoints the person described as process agent
(if any) specified in the Sale Agreement to receive on its behalf
service of any action, suit or other proceedings in connection with the
Transfer Certificate. If any person appointed as process agent ceases
to act for any reason the appointing party shall notify the other party
and shall promptly appoint another person incorporated within England
and Wales to act as its process agent.
102
SCHEDULE 13
FORM OF ACCESSION LETTER
To: [ ] as Agent
From: [Subsidiary] and MISYS plc
Dated:
Dear Sirs
$700,000,000 MULTICURRENCY FACILITY AGREEMENT DATED [-] JUNE 2001
(THE "FACILITY AGREEMENT")
ACCESSION LETTER
1. We refer to the Facility Agreement. Definitions in the Facility
Agreement apply in this Accession Letter.
2. [Subsidiary] agrees to become an Additional [Borrower]/[Guarantor] and
to be bound by the terms of the Facility Agreement as an Additional
[Borrower]/[Guarantor] pursuant to Clause [26.2 (Additional
Borrowers)]/[Clause 26.4 (Additional Guarantors)] of the Facility
Agreement. [Subsidiary] is a company duly incorporated under the laws
of [name of relevant jurisdiction].
3. [Subsidiary's] administrative details are as follows:
Address:
Fax No:
Attention:
4. This letter is governed by English law.
[This Guarantor Accession Letter is entered into by deed.]
MISYS PLC [Subsidiary]
By: By:
103
SCHEDULE 14
FORM OF RESIGNATION LETTER
To: [ ] as Agent
From: [resigning Obligor] and MISYS plc
Dated:
Dear Sirs
$700,000,000 MULTICURRENCY FACILITY AGREEMENT DATED [-] JUNE 2001
(THE "FACILITY AGREEMENT")
RESIGNATION LETTER
1. We refer to the Facility Agreement. Definitions in the Facility
Agreement apply in this Resignation Letter.
2. Pursuant to [Clause 26.3 (Resignation of a Borrower)]/[Clause 26.6
(Resignation of a Guarantor)], we request that [resigning Obligor] be
released from its obligations as a [Borrower]/[Guarantor] under the
Facility Agreement.
3. We confirm that no Default is continuing or would result from the
acceptance of this request.
4. This letter is governed by English law.
MISYS PLC [Subsidiary]
By: By:
104
SCHEDULE 15
FORM OF COMPLIANCE CERTIFICATE
To: [ ] as Agent
From: MISYS plc
Dated:
Dear Sirs
$700,000,000 MULTICURRENCY FACILITY AGREEMENT DATED [-] JUNE 2001
(THE "FACILITY AGREEMENT")
COMPLIANCE CERTIFICATE
1. We refer to the Facility Agreement. Definitions in the Facility
Agreement apply in this Compliance Certificate.
2. In relation to the Relevant Period ending on [-], we advise as follows.
2.1 Reported consolidated operating profit before tax for the most
recently completed twelve month period was L[-].
2.2 Exceptional items in accordance with Financial Reporting Standard 3
for the most recently completed twelve month period were; positive
L[-] and negative L[-].
2.3 Net Interest Payable was L[-].
2.4 Adjustment to ensure that consolidated operating profit conforms
with the definition of "Headline Earnings" as described in
paragraphs 21 and 22 of the Statement of Investment Practice No. 1
were L[-] and therefore PBIT for the most recently completed
twelve month period was L[-].
2.5 PBIT for the most recently completed twelve month period was L[-].
2.6 Depreciation and amortisation for the most recently completed twelve
month period was L[-] and therefore EBITDA was L[-].
2.7 EBITDA (on an annualised basis) for Subsidiaries acquired during the
most recent twelve month period was L[-], EBITDA (on an annualised
basis) for Subsidiaries disposed of during the most recent twelve
month period was L[-] and therefore Adjusted EBITDA for the most
recently completed twelve month period was L[-]; Earnings
denominated in currencies other than Sterling were translated in
accordance with paragraph (g) below.
2.8 The exchange rates used for the purpose of determining Adjusted
EBITDA were [-].
2.9 Borrowings at the end of the Relevant Period were L[-].
105
2.10 Cash and Cash Equivalents at the end of the Relevant Period were
L[-].
2.11 Excluded Cash at the end of the Relevant Period was L[-].
2.12 Net Borrowings at the end of the Relevant Period were L[-].
2.13 Interest payable for the most recently completed twelve month period
was L[-].
2.14 Interest receivable for the most recently completed twelve month
period was L[-].
2.15 Net Interest Payable for the most recently completed twelve month
period was L[-].
2.16 A reconciliation between the profit before interest and tax figure
in the relevant accounts and PBIT is attached.
2.17 A reconciliation between the profit before interest and tax figure
in the relevant accounts and EBITDA is attached.
2.18 The amount of Financial Indebtedness referred to in paragraph (d) of
the definition of "BORROWINGS" at the end of the Relevant Period is
L[-].
3. The ratio of Net Borrowings to Adjusted EBITDA for the Relevant Period
was [-] and the covenant contained in Clause 22.2(a) (Financial
condition) has been satisfied.
4. The ratio of EBITDA to Net Interest Payable for the Relevant Period was
[-] and the covenants contained in Clause 22.2(b) (Financial
condition) has been satisfied.
5. Based on the figures set out above, the Margin will be [-] per
cent. per annum.
6. [We confirm that no Default is continuing.]*
_______________________________________
Director
MISYS PLC
---------------------
* If this statement cannot be made, the certificate should identify any
Default that is continuing and the steps, if any, being taken to remedy
it.
106
SCHEDULE 16
LMA FORM OF CONFIDENTIALITY UNDERTAKING
[LETTERHEAD OF SELLER]
To:
===========================================
[insert name of Potential
Purchaser]
===========================================
Re: THE AGREEMENT
===========================================
BORROWER: MISYS plc
DATE: [-] June ▇▇▇▇
▇▇▇▇▇▇: $[700,000,000]
AGENT: [-]
===========================================
Dear Sirs
We understand that you are considering acquiring an interest in the Agreement
(the "ACQUISITION"). In consideration of us agreeing to make available to
you certain information, by your signature of a copy of this letter you agree
as follows:
1. Confidentiality Undertaking You undertake to:
1.1 keep the Confidential Information confidential and not to disclose
it to anyone except as provided for by paragraph 2 below and to
ensure that the Confidential Information is protected with security
measures and a degree of care that would apply to your own
confidential information;
1.2 use the Confidential Information only for the Permitted Purpose;
1.3 use all reasonable endeavours to ensure that any person to whom you
pass any Confidential Information (unless disclosed under paragraph
2(c) below) acknowledges and complies with the provisions of this
letter as if that person were also a party to it; and
1.4 not make enquiries of any member of the Group or any of their
officers, directors, employees or professional advisers relating
directly or indirectly to the Acquisition.
2. Permitted Disclosure We agree that you may disclose Confidential
Information:
2.1 to members of the Purchaser Group and their officers, directors,
employees and professional advisers to the extent necessary for the
Permitted Purpose and to any auditors of members of the Purchaser
Group;
107
2.2 subject to the requirements of the Agreement, to any person to (or
through) whom you assign or transfer (or may potentially assign or
transfer) all or any of the rights, benefits and obligations which
you may acquire under the Agreement or with (or through) whom you
enter into (or may potentially enter into) any sub-participation in
relation to, or any other transaction under which payments are to be
made by reference to, the Agreement or the Borrower or any member of
the Group so long as that person has delivered a letter to you in
equivalent form to this letter; and
2.3 where:
2.3.1 requested or required by any court of competent jurisdiction
or any competent judicial, governmental, supervisory or
regulatory body;
2.3.2 required by the rules of any stock exchange on which the
shares or other securities of any member of the Purchaser
Group are listed; or
2.3.3 required by the laws or regulations of any country with
jurisdiction over the affairs of any member of the Purchaser
Group.
3. Notification of Required or Unauthorised Disclosure You agree (to the
extent permitted by law) to inform us of the full circumstances of any
disclosure under paragraph 2(c) or upon becoming aware that
Confidential Information has been disclosed in breach of this letter.
4. Return of Copies If we so request in writing, you shall return all
Confidential Information supplied to you by us and destroy or
permanently erase all copies of Confidential Information made by you
and use all reasonable endeavours to ensure that anyone to whom you
have supplied any Confidential Information destroys or permanently
erases such Confidential Information and any copies made by them, in
each case save to the extent that you or the recipients are required to
retain any such Confidential Information by any applicable law, rule or
regulation or by any competent judicial, governmental, supervisory or
regulatory body or in accordance with internal policy, or where the
Confidential Information has been disclosed under paragraph 2(c) above.
5. Continuing Obligations The obligations in this letter are continuing
and, in particular, shall survive the termination of any discussions or
negotiations between you and us. Notwithstanding the previous
sentence, the obligations in this letter shall cease:
5.1 if you become a party to or otherwise acquire (by assignment or
sub-participation) an interest, direct or indirect, in the
Agreement; or
5.2 twelve months after you have returned all Confidential Information
supplied to you by us and destroyed or permanently erased all copies
of Confidential Information made by you (other than any such
Confidential Information or copies which have been disclosed under
paragraph 2 above (other than sub-paragraph 2(a)) or which, pursuant
to paragraph 4 above, are not required to be returned or destroyed).
108
6. No Representation; Consequences of Breach, etc You acknowledge and
agree that:
6.1 neither we, nor any member of the Group nor any of our or their
respective officers, employees or advisers (each a "RELEVANT
PERSON"):
6.1.1 make any representation or warranty, express or implied, as
to, or assume any responsibility for, the accuracy,
reliability or completeness of any of the Confidential
Information or any other information supplied by us or the
assumptions on which it is based; or
6.1.2 shall be under any obligation to update or correct any
inaccuracy in the Confidential Information or any other
information supplied by us or be otherwise liable to you or
any other person in respect to the Confidential Information or
any such information; and
6.2 we or members of the Group may be irreparably harmed by the breach
of the terms hereof and damages may not be an adequate remedy; each
Relevant Person may be granted an injunction or specific performance
for any threatened or actual breach of the provisions of this letter
by you.
7. No Waiver; Amendments, etc This letter sets out the full extent of
your obligations of confidentiality owed to us in relation to the
information the subject of this letter. No failure or delay in
exercising any right, power or privilege hereunder will operate as a
waiver thereof nor will any single or partial exercise of any right,
power or privilege preclude any further exercise thereof or the
exercise of any other right, power or privileges hereunder. The terms
of this letter and your obligations hereunder may only be amended or
modified by written agreement between us.
8. Inside Information You acknowledge that some or all of the
Confidential Information is or may be price-sensitive information and
that the use of such information may be regulated or prohibited by
applicable legislation relating to insider dealing and you undertake
not to use any Confidential Information for any unlawful purpose.
9. Nature of Undertakings The undertakings given by you under this letter
are given to us and (without implying any fiduciary obligations on our
part) are also given for the benefit of the Borrower and each other
member of the Group.
10. Third party rights
10.1 Subject to paragraph 6 and paragraph 9 the terms of this letter may
be enforced and relied upon only by you and us and the operation of
the Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ is excluded.
10.2 Notwithstanding any provisions of this letter, the parties to this
letter do not require the consent of any Relevant Person or any
member of the Group to rescind or vary this letter at any time.
11. Governing Law and Jurisdiction This letter (including the agreement
constituted by your acknowledgement of its terms) shall be governed by
and construed in accordance with the
109
laws of England and the parties submit to the non-exclusive jurisdiction
of the English courts.
12. Definitions In this letter (including the acknowledgement set out
below) terms defined in the Agreement shall, unless the context
otherwise requires, have the same meaning and:
"CONFIDENTIAL INFORMATION" means any information relating to the
Borrower, the Group, the Agreement and/or the Acquisition provided to
you by us or any of our affiliates or advisers, in whatever form, and
includes information given orally and any document, electronic file or
any other way of representing or recording information which contains
or is derived or copied from such information but excludes information
that (a) is or becomes public knowledge other than as a direct or
indirect result of any breach of this letter or (b) is known by you
before the date the information is disclosed to you by us or any of our
affiliates or advisers or is lawfully obtained by you thereafter, other
than from a source which is connected with the Group and which, in
either case, as far as you are aware, has not been obtained in
violation of, and is not otherwise subject to, any obligation of
confidentiality;
"GROUP" means the Borrower and each of its holding companies and
subsidiaries and each subsidiary of each of its holding companies (as
each such term is defined in the Companies Act 1985);
"PERMITTED PURPOSE" means considering and evaluating whether to enter
into the Acquisition; and
"PURCHASER GROUP" means you, each of your holding companies and
subsidiaries and each subsidiary of each of your holding companies (as
each such term is defined in the Companies Act 1985).
Please acknowledge your agreement to the above by signing and returning
the enclosed copy.
Yours faithfully
__________________________________
For and on behalf of
[SELLER]
We acknowledge and agree to the above:
__________________________________
For and on behalf of
[Potential Purchaser]
110
SCHEDULE 17
TIMETABLES
LOANS IN EURO LOANS IN STERLING LOANS IN OTHER
CURRENCIES
Agent notifies the Original Borrower if a -- -- U-4
currency is approved as an Optional Currency
in accordance with Clause 4.3 (Conditions
relating to Optional Currencies)
Delivery of a duly completed Utilisation U-3 U-1(1) U-3(2)
Request (Clause 5.1 (Delivery of a Utilisation
Request) or a Selection Notice (Clause 11.1 9.30 a.m. 9.30 a.m. 9.30 a.m.
(Selection of Interest Periods))
Agent determines amount of the Loan in U-3 U-1 U-3(2)
Optional Currency in accordance with Clause
6.3 (Change of currency) or Clause 6.4 (Same 11.00 a.m. 11.00 a.m. 11.00 a.m.
Optional Currency during successive Interest
Periods)
Agent notifies the Lenders of the Loan in U-3 U-1(1) U-3
accordance with Clause 5.4 (Lenders'
participation in Revolving Loans) 2.00 p.m. 2.00 p.m. 2.00 p.m.
Agent receives a notification from a Lender U-3 U-1 U-3
under Clause 6.2 (Unavailability of a currency) 5.00 p.m. 5.00 p.m. 5.00 p.m.
Agent gives notice in accordance with Clause U-2 U U-2
6.2 (Unavailability of a currency) 10.30 a.m. 10.30 a.m. 10.30 a.m.
LIBOR is fixed Quotation Day as of Quotation Day as of Quotation Day as of
11.00 a.m. 11.00 a.m. 11.00 a.m.
1 The Utilisation Request relating to the Derwent Acquisition shall be
delivered on or before 2.00 p.m. on U-1. The Agent shall notify the
Lenders of the relevant Loan by [4.00] p.m. on that day.
2 The Utilisation Request relating to the Sunshine Acquisition shall
be delivered on or before 9.30 a.m. on U-2. The Agent shall
determine the amount of the relevant Loan in dollars by 11.00 a.m.
on U-2.
111
"U" means the date of Utilisation or first day of an Interest Period
specified in a Selection Notice.
"U - X" means X Business Days prior to date of Utilisation or first day of an
Interest Period specified in a Selection Notice.
112
SIGNATURES
ORIGINAL BORROWER
MISYS PLC
By:
Address: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax: ▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Group Treasurer
ORIGINAL GUARANTOR
MISYS PLC
By:
ARRANGERS
▇.▇. ▇▇▇▇▇▇ PLC
By:
Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax: ▇▇▇ ▇▇▇▇ ▇▇▇▇
Attention: International Loan Services
LLOYDS TSB CAPITAL MARKETS
By:
Address: ▇▇ ▇▇▇▇▇▇'▇ ▇▇▇▇▇, ▇-▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax: ▇▇▇ ▇▇▇▇ ▇▇▇▇
Attention: Capital Markets
113
AGENT
LLOYDS TSB CAPITAL MARKETS
By:
Address: ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: Loans Administration Department
ORIGINAL LENDERS
THE CHASE MANHATTAN BANK
By:
LLOYDS TSB BANK PLC
By: