CONFORMED COPY
TRANSWORLD HOLDINGS (UK) LIMITED
AS PARENT
TRANSWORLD HEALTHCARE (UK) LIMITED
AS ORIGINAL BORROWER
AND
TRANSWORLD HOLDINGS (UK) LIMITED
TRANSWORLD HEALTHCARE (UK) LIMITED
OMNICARE LIMITED
ALLIED MEDICARE LIMITED
AMCARE LIMITED
ALLIED OXYCARE LIMITED
NOVACARE (UK) LIMITED
AS ORIGINAL GUARANTORS
PARIBAS
AS ARRANGER
PARIBAS
BARCLAYS BANK PLC
AS UNDERWRITERS
BARCLAYS BANK PLC
AS AGENT AND SECURITY AGENT
AND
OTHERS
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(POUNDS STERLING)45,500,000
SENIOR CREDIT AGREEMENT
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▇▇▇▇▇▇▇▇ CHANCE
CONTENTS
CLAUSE Page
1. Definitions And Interpretation........................................1
2. The Facilities.......................................................31
3. Utilisation Of The Term Facility.....................................32
4. Interest Periods For Term Advances...................................35
5. Payment And Calculation Of Interest On Term Advances.................36
6. Utilisation Of The Revolving Facility................................37
7. Payment And Calculation Of Interest On Revolving Advances............39
8. Market Disruption And Alternative Interest Rates.....................40
9. Notification.........................................................41
10. Repayment Of The Term Facility.......................................42
11. Repayment Of The Revolving Facility..................................43
12. Mandatory Prepayment.................................................43
13. Cancellation And Voluntary Prepayment................................46
14. Taxes................................................................48
15. Tax Receipts.........................................................50
16. Increased Costs......................................................51
17. Illegality...........................................................52
18. Mitigation...........................................................53
19. Representations......................................................53
20. Financial Information................................................62
21. Other Information....................................................65
22. Financial Condition..................................................66
23. Covenants............................................................75
24. Events Of Default....................................................84
25. Guarantee And Indemnity..............................................90
26. Commitment Commission And Fees.......................................93
27. Costs And Expenses...................................................94
28. Default Interest And Break Costs.....................................95
29. Parent's Indemnities.................................................96
30. Currency Of Account And Payment......................................98
31. Payments.............................................................98
32. Set-Off..............................................................99
33. Sharing.............................................................100
34. The Agent, The Arranger, The Underwriters And The Banks.............101
35. Assignments And Transfers...........................................106
36. Additional Borrowers................................................108
37. Additional Guarantors...............................................109
38. Calculations And Evidence Of Debt...................................110
39. Remedies And Waivers, Partial Invalidity............................111
40. Notices.............................................................111
41. Counterparts........................................................112
42. Amendments..........................................................113
43. Governing Law.......................................................114
44. Jurisdiction........................................................114
Schedule 1 THE BANKS ......................................................116
Schedule 2 FORM OF TRANSFER CERTIFICATE....................................117
Schedule 3 CONDITIONS PRECEDENT............................................121
Schedule 4 NOTICE OF DRAWDOWN..............................................127
Schedule 5 FORM OF COMPLIANCE CERTIFICATE..................................129
Schedule 6 FORM OF BORROWER ACCESSION MEMORANDUM...........................130
Schedule 7 FORM OF GUARANTOR ACCESSION MEMORANDUM..........................132
Schedule 8 ADDITIONAL CONDITIONS PRECEDENT.................................134
Schedule 9 FORM OF RESIGNATION NOTICE......................................136
Schedule 10 ASSOCIATED COSTS RATE..........................................137
Schedule 11 FORM OF CLOSING CERTIFICATE....................................139
THIS AGREEMENT is made on 17 December 1999
BETWEEN
(1) TRANSWORLD HOLDINGS (UK) LIMITED a company incorporated in England and
Wales with company registration number 3890177 (the "PARENT");
(2) TRANSWORLD HEALTHCARE (UK) LIMITED (a company incorporated in England
and Wales with company registration number 03370146) in its capacity as
borrower hereunder (the "ORIGINAL BORROWER");
(3) TRANSWORLD HOLDINGS (UK) LIMITED, TRANSWORLD HEALTHCARE (UK) LIMITED,
OMNICARE LIMITED, ALLIED MEDICARE LIMITED, AMCARE LIMITED, ALLIED
OXYCARE LIMITED and NOVACARE (UK) LIMITED (the "ORIGINAL GUARANTORS");
(4) PARIBAS as arranger of the Facilities (the "ARRANGER");
(5) BARCLAYS BANK PLC as agent for the Banks (the "AGENT");
(6) BARCLAYS BANK PLC as security agent for and on behalf of the Finance
Parties (as defined below) (the "SECURITY AGENT");
(7) PARIBAS and BARCLAYS BANK PLC as underwriters of the Facilities (the
"UNDERWRITERS"); and
(8) THE BANKS (as defined below).
IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"ACCESSION MEMORANDUM" means a Borrower Accession Memorandum or a
Guarantor Accession Memorandum.
"ACCOUNTANTS REPORT" means the long form report by
PricewaterhouseCoopers dated December 1999 in relation to the Business
in the agreed form which deals with, among other things, the tax and VAT
treatment of the Group.
"ACCOUNT DEBTOR" in relation to any person, means any other person who
is or may become obligated to such first mentioned person under, with
respect to, or on account of, a receivable.
"ACQUISITION AGREEMENT" means, in relation to a Permitted Acquisition or
a Permitted Equity Funded Acquisition, the purchase agreement prepared
in accordance with its Acquisition Feasibility Memorandum between the
purchaser and the vendors together with all schedules, exhibits and
attachments to such agreement and all amendments to such purchase
agreement.
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"ACQUISITION COSTS" means all fees, out-of-pocket costs and expenses,
stamp, registration and other taxes incurred by the Parent or any other
member of the Group in connection with the a Permitted Acquisition, the
Facilities, the Warrants, the Notes, the Mezzanine Facility, the Finance
Documents or the Mezzanine Finance Documents, the documentation relating
to the Warrants and/or the documentation relating to the Notes.
"ACQUISITION DOCUMENTS" means the Acquisition Agreements and all
documents to be executed pursuant thereto in the form to be agreed for
the purposes of the relevant Acquisition Agreement and such other
documents (if any) relating to the transactions contemplated in such
agreements and identified by the Agent and the Parent in writing as an
Acquisition Document.
"ACQUISITION EXPENDITURE ACCOUNT" means an interest bearing account with
the Security Agent into which Available Cash is to be paid into and held
and which is charged in favour of the Security Agent for the obligations
of the Obligors under this Agreement. Such Available Cash may be
withdrawn from time to time from the date hereof for the purposes of
financing the Total Consideration.
"ACQUISITION FEASIBILITY MEMORANDUM" means, in relation to a Permitted
Acquisition, the acquisition feasibility memorandum (to be delivered to
the Agent as a condition precedent to drawdown of a Term B Advance)
describing the Permitted Acquisition and prepared in accordance with the
Acquisition Policy including:
(a) a report detailing the extent to which such acquisition deviates
(if at all) from the Acquisition Policy together with the
rationale for the Board's recommendation to make such deviation;
and
(b) the Acquisition Agreement marked to show material amendments
from the Framework Acquisition Agreement together with a
commentary explaining the rationale for such amendments.
"ACQUISITION POLICY" means, in relation to a Permitted Acquisition, the
acquisition policy of the Group as identified in Section I Clause C(5)
of Schedule 3 (Conditions Precedent).
"ACQUISITION WORKING CAPITAL" means, in relation to a Permitted
Acquisition, the estimated permanent working capital of the Relevant
Business being an amount equal to fifteen per cent. of the turnover of
the Relevant Business for the 12 months preceding the date of the
proposed acquisition.
"ADDITIONAL BORROWER" means any company which has become an Additional
Borrower in accordance with Clause 36 (Additional Borrowers).
"ADDITIONAL GUARANTOR" means any company which has become an Additional
Guarantor in accordance with Clause 37 (Additional Guarantors).
"ADDITIONAL OBLIGOR" means an Additional Borrower or Additional
Guarantor.
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"ADJUSTED CASH FLOW" means, in respect of any Relevant Period, Cash Flow
for such Relevant Period:
(a) plus Interest Receivable, to the extent received in cash;
(b) minus Interest Payable, to the extent payable in cash; and
(c) minus any taxes paid in cash during such Relevant Period.
"ADVANCE" means a Revolving Advance or a Term Advance.
"AGREED PRO FORMA ADJUSTMENTS" means in respect of any Permitted
Acquisition or Permitted Equity Funded Acquisition adjustments made to
EBIT relating to such acquisition which:
(a) add back any non-recurring costs and expenses of the vendors and
any overall reduction in operating expenses arising as a result
of such acquisition;
(b) deducting any new operational costs and expenses including
amounts payable to any superintendent or similar person; and
(c) in respect of any calculation of EBIT or EBITDA for any Relevant
Period where such Permitted Acquisition or Permitted Equity
Funded Acquisition did not occur at the commencement of such
Relevant Period, annualised actual EBIT or, as the case may be,
EBITDA of the Relevant Business or Restricted Subsidiary since
the date of such acquisition.
"APPLICABLE A MARGIN" means, in relation to the Term A Outstandings,
2.00% per annum.
"APPLICABLE B MARGIN" means, in relation to the Term B Outstandings,
2.75% per annum.
"APPLICABLE REVOLVING MARGIN" means, in relation to the Revolving
Outstandings, 2.00% per annum.
"APPLICABLE TREATY" means a double tax treaty or convention relating to
the relief from double taxation on income and capital.
"APPLICABLE TREATY BANKS" means a Bank acting out of a Facility Office
to which payments pursuant to this Agreement by a Borrower may be made
free and clear of any deduction or withholding on account of any taxes
of, or imposed by, the country of incorporation of such Borrower,
pursuant to an Applicable Treaty (assuming all relevant forms have been
duly completed and any necessary direction made).
"ASSOCIATED COSTS RATE" means, in relation to each Advance or Unpaid
Sum, the percentage rate from time to time determined by the Agent in
accordance with Schedule 11 (Associated Costs Rate).
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"AUTHORISED SIGNATORY" means, in relation to an Obligor or proposed
Obligor, any person who is duly authorised (in such manner as may be
reasonably acceptable to the Agent) to sign, seal or execute documents
on behalf of such Obligor and to take such action as is required of an
Authorised Signatory under the Finance Documents and in respect of whom
the Agent has received a certificate signed by a director or another
Authorised Signatory of such Obligor or proposed Obligor setting out the
name and signature of such person and confirming such person's authority
to act.
"AVAILABLE CASH" means cash from time to time, standing to the credit of
the Acquisition Expenditure Account in the name of the Borrower.
"AVAILABLE COMMITMENT" means, in relation to a Bank at any time, the
aggregate of its Available Term Commitment and Available Revolving
Commitment.
"AVAILABLE REVOLVING COMMITMENT" means, in relation to a Bank at any
time and save as otherwise provided herein, its Revolving Commitment
less its share of the Sterling Amount of the Revolving Outstandings at
such time provided that such amount shall not be less than zero.
"AVAILABLE REVOLVING FACILITY" means, at any time, the aggregate amount
of the Available Revolving Commitments adjusted, in the case of any
proposed utilisation, so as to take into account:
(a) any reduction in the Revolving Commitment of a Bank pursuant to
the terms hereof;
(b) any Revolving Advance which, pursuant to any other utilisation,
is to be made; and
(c) any Revolving Advance which is due to be repaid,
on or before the proposed Utilisation Date relating to such utilisation.
"AVAILABLE TERM COMMITMENT" means, in relation to a Bank at any time and
save as otherwise provided herein, the aggregate of its Available Term A
Commitment and its Available Term B Commitment at such time.
"AVAILABLE TERM A COMMITMENT" means, in relation to a Bank at any time
and save as otherwise provided herein, its Term A Commitment at such
time LESS the aggregate of its share of the Sterling Amount of the Term
A Advances which are then outstanding.
"AVAILABLE TERM B COMMITMENT" means, in relation to a Bank at any time
and save as otherwise provided herein, its Term B Commitment at such
time LESS the aggregate of its share of the Sterling Amount of the Term
B Advances which are then outstanding.
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"AVAILABLE TERM FACILITIES" means, at any time, the aggregate of the
Available Term A Facility and the Available Term B Facility at such time
and "AVAILABLE TERM FACILITY" means the amount of any such available
facility.
"AVAILABLE TERM A FACILITY" means, at any time, the aggregate amount of
the Available Term A Commitments adjusted, in the case of any proposed
utilisation, so as to take into account any reduction in the Term A
Commitment of a Bank on or before the proposed Utilisation Date relating
to such utilisation.
"AVAILABLE TERM B FACILITY" means, at any time, the aggregate amount of
the Available Term B Commitments adjusted, in the case of any proposed
utilisation, so as to take into account any reduction in the Term B
Commitment of a Bank on or before the proposed Utilisation Date relating
to such utilisation.
"BANK" means any financial institution:
(a) named in Schedule 1 (The Banks); or
(b) which has become a party hereto in accordance with the
provisions of Clause 35.4 (Assignments by Banks) or 35.5
(Transfers by Banks),
and which has not ceased to be a party hereto in accordance with the
terms hereof.
"BORROWER" means the Original Borrower and each Additional Borrower,
PROVIDED THAT such company has not been released from its rights and
obligations hereunder in accordance with Clause 36.3 (Resignation of a
Borrower).
"BORROWER ACCESSION MEMORANDUM" means a memorandum substantially in the
form set out in Schedule 6 (Form of Borrower Accession Memorandum).
"BUDGET" means, in relation to the Group and the period starting no
later than the date of this Agreement and ending 30 September 2004, the
Business Plan, and in relation to each successive twelve (12) month
period thereafter:
(a) a projected balance sheet;
(b) a projected profit and loss account;
(c) a projected cash flow statement; and
(d) a projected covenant calculation relating to each financial
undertaking contained in Clause 22.1 (Financial Covenants).
"BUSINESS" means the provision of healthcare services to the community
and NHS Trust falling into the following divisions:
(a) the supply of nurses and carers to the NHS local authorities,
private nursing homes, industry and private individuals;
(b) the supply of ostomy and urology products; and
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(c) the supply of oxygen cylinders and concentrators.
"BUSINESS DAY" means a day (other than a Saturday or Sunday) on which
banks are open for business generally in London.
"BUSINESS PLAN" means the business plan for the Group and TW US Strategy
Paper describing the nature and extent of, and prospects for the Group's
business and operations, dated on or about the date of this Agreement
and prepared by the Parent.
"CASH EQUIVALENT INVESTMENTS" means:
(a) debt securities denominated in (i) US Dollars or (ii) euro or
Sterling ("OTHER CURRENCY") issued by the United States of
America or the United Kingdom ("UK") or any country which is a
member of the European Union whose indebtedness is rated AA or
better by Standard & Poor's Corporation which are (in each case)
not convertible into any other form of security;
(b) debt securities denominated in US Dollars or Other Currency
which are not convertible into any other form of security, rated
P-1 (▇▇▇▇▇'▇ Investor Services Inc.) or A-1 (Standard & Poor's
Corporation) and not issued or guaranteed by any member of the
Group;
(c) certificates of deposit denominated in US Dollars or Other
Currency issued by, and sterling acceptances by, banking
institutions authorised under applicable UK legislation which at
the time of making such issue or acceptances, have outstanding
debt securities rated as provided in paragraph (b) above; and
(d) such other securities (if any) as are approved as such in
writing by the Agent
PROVIDED THAT any such debt securities, certificates of deposit,
acceptances and other securities referred to in paragraphs (a) - (d)
above shall only constitute Cash Equivalent Investments if they have a
maturity of six months or less or (if they have a maturity of longer
than six months) they do not have a fixed interest rate/coupon.
"CAPITAL EXPENDITURE" shall have the meaning given to such term in
Clause 22.3 (Financial Definitions).
"CASH FLOW" shall have the meaning given to such term in Clause 22.3
(Financial Definitions).
"CHANGE OF CONTROL" means the occurrence of the following event or
circumstances:
(a) any person or group of connected persons which does not at the
date hereof have control of the Parent or any holding company of
the Parent acquires such control (for the purposes of this
paragraph "connected person" shall be construed in accordance
with Section 839 of the Income and Corporation Taxes Act 1988);
or
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(b) the persons listed in Clause 19.20 (Control of the Parent)
ceases to have control of the Parent.
"CLOSING CERTIFICATE" means the closing certificate substantially in the
form set out in Schedule 11 (Form of Closing Certificate).
"COMMITMENT" means, in relation to a Bank at any time, the aggregate of
its Term Commitment and its Revolving Commitment.
"COMPLIANCE CERTIFICATE" means a certificate substantially in the form
set out in Schedule 5 (Form of Compliance Certificate).
"CONFIDENTIALITY UNDERTAKING" means a confidentiality undertaking in the
standard form from time to time of the LMA or in such other form as may
be agreed between the Parent and the Agent.
"DEBENTURE" means a debenture in the agreed form executed or to be
executed in favour of the Security Agent.
"DISPUTE" means any dispute referred to in Clause 44 (Jurisdiction).
"DORMANT SUBSIDIARY" means, on any given date, a Group company
(a) which has been dormant within the meaning of section 250(3) of
the Act for the period of 12 months ending on that date (or, if
a shorter period, for the period from the date of its
incorporation to that date) and;
(b) the value of whose assets does not exceed in aggregate
(pounds sterling)10,000.
"DUE DILIGENCE REPORT" means the preliminary legal due diligence report
in relation to the Group dated 16 December 1999, together with the
preliminary report dated 25 July 1999.
"EARN OUT" means, in relation to a Permitted Acquisition, the earn out
element (as set out in the Acquisition Policy, the related Acquisition
Feasibility Memorandum, the Framework Acquisition Agreement and the
relevant Acquisition Agreement) payable to the vendors as part of the
Total Consideration.
"ENCUMBRANCE" means (a) a mortgage, charge, pledge, lien or other
encumbrance securing any obligation of any person, (b) any arrangement
under which money or claims to, or the benefit of, a bank or other
account may be applied, set off or made subject to a combination of
accounts so as to effect discharge of any sum owed or payable to any
person or (c) any other type of preferential arrangement (including any
title transfer and retention arrangement) the effect of which is to give
a creditor a preferential position in relation to any asset of a person
on any insolvency proceeding of that person.
"ENVIRONMENTAL CLAIM" means any claim, proceedings or official
investigation by any person pursuant to any Environmental Law.
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"ENVIRONMENTAL LAW" means any applicable law in any jurisdiction in
which any member of the Group conducts business giving rise to legal
obligations or liability relating to the pollution or protection of the
environment or harm to or the protection of human health or the health
of animals or plants.
"ENVIRONMENTAL PERMITS" means any permit, licence, consent, approval and
other authorisation and the filing of any notification, report or
assessment required under any Environmental Law for the operation of the
business of any member of the Group conducted on or from the properties
owned or used by the relevant member of the Group.
"EVENT OF DEFAULT" means any circumstance described as such in Clause 24
(Events of Default).
"EXCESS CASH FLOW" has the meaning given to such term in Clause 22.3
(Financial Definitions).
"EXCLUDED PROCEEDS" means (a) aggregate Net Disposal Proceeds received
in respect of sales or other transfers of assets or revenues where the
proceeds of each such asset disposal do not exceed (pounds
sterling)50,000 (or its equivalent) and up to but not more than s
sterling100,000 (or its equivalent) in aggregate in any period of twelve
months (the "PERMITTED RETENTION") and (b) any insurance recovery where
the proceeds arising out of the same are to be applied and are applied
in acquiring replacement assets for the assets damaged or destroyed (or
in reinstating the relevant damaged assets) or meeting any liability in
respect of which such moneys are received within 180 days of receipt
PROVIDED THAT such proceeds are deposited into and held in the Holding
Account until such time that a replacement of such asset is required or
such reinstatement is made or such liability is met.
"EXISTING TW US LOAN " means the existing intra-group loans between TW
US and the Original Borrower in the amount of approximately
(pounds sterling)40,000,000.
"FACILITIES" means the Term Facilities and the Revolving Facility.
"FACILITY OFFICE" means, in relation to the Agent, each office
identified with its signature below or such other office(s) as it may
select by notice and, in relation to any Bank, each office notified by
it to the Agent in writing prior to the date hereof (or, in the case of
a Transferee, at the end of the Transfer Certificate to which it is a
party as Transferee) or such other office(s) as it may from time to time
select by notice to the Agent.
"FINAL MATURITY DATE" means:
(a) when designated "TERM A FACILITY" or "REVOLVING FACILITY", the
sixth anniversary of the date hereof; or
(b) when designated "TERM B FACILITY", the seventh anniversary of
the date hereof.
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"FINANCE DOCUMENTS" means this Agreement, any Borrower Accession
Memorandum or Guarantor Accession Memorandum, the fee letters referred
to in Clauses 26.3 (Arrangement Fee), 26.4 (Agency Fee) and 26.5
(Underwriting Fee), the Security Documents, the Intercreditor
Arrangements, Mezzanine Warrant Instrument, the Hedging Agreements
entered into by a Bank (but not any other financial institution) and any
documents evidencing the terms of any other agreement or document that
may be entered into or executed pursuant to any of the foregoing by any
Obligors and any other document which is designated a "FINANCE DOCUMENT"
in writing signed by the Parent and the Agent.
"FINANCE LEASE" means a contract treated as a finance lease in
accordance with UK GAAP.
"FINANCE PARTIES" means the Agent, the Security Agent, the Arranger, the
Underwriters and the Banks and any Hedge Counterparties which are Banks.
"FINANCIAL INDEBTEDNESS" means any indebtedness in respect of or arising
under or in connection with:
(a) moneys borrowed (including overdrafts); or
(b) indebtedness under any debenture, bond (other than a performance
bond issued in respect of the trade obligations), note or loan
stock or other similar instrument; or
(c) any acceptance or documentary credit (other than in respect of
trade obligations); or
(d) receivables sold or discounted (otherwise than on a non-recourse
basis); or
(e) the acquisition cost of any asset to the extent payable after
the time of acquisition or possession by the person liable as
principal obligor for the payment thereof where the deferred
payment is arranged primarily as a method of raising finance or
financing or refinancing the acquisition of the asset acquired
(excluding, for the avoidance of doubt, trade credit with a term
of 180 days or less on customary terms); or
(f) the sale price of any asset to the extent paid before the time
of sale or delivery by the person liable to effect such sale or
delivery where the advance payment is arranged primarily as a
method of raising finance or financing or refinancing the
manufacture, assembly, acquisition or holding of the asset to be
sold (excluding, for the avoidance of doubt, trade credit with a
term of 180 days or less on customary terms); or
(g) Finance Leases, credit sale or conditional sale agreements
(whether in respect of land, buildings, plant, machinery,
equipment or otherwise) entered into primarily as a method of
raising finance or financing or refinancing the
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acquisition of the relevant asset (but not including liabilities
under operating leases); or
(h) the net amount from time to time due pursuant to any agreement
for managing or hedging currency and/or interest rate and/or
commodity risk whether by way of forward exchange, cap, collar,
swap, forward rate agreement or otherwise or the net amount from
time to time due under any other derivative contract; or
(i) the amount payable under any put option or other arrangement
(excluding, until exercisable, the warrants issued under the
Warrant Documents) whereby any member of the Group is liable, at
the request of a third party, to purchase share capital or other
securities issued by it or any other member of the Group prior
to the Final Maturity Date; or
(j) the amount payable by any member of the Group in respect of the
redemption of any share capital or other securities issued by it
prior to the Final Maturity Date; or
(k) the amount of any guarantee or indemnity of any person in
respect of any indebtedness falling within paragraphs (a) to (j)
inclusive of this definition,
and so that, where the amount of Financial Indebtedness falls to be
calculated, no amount shall be taken into account more than once in the
same calculation.
For the avoidance of doubt Financial Indebtedness shall not include
indebtedness incurred in relation to any Earn Outs payable at the date
hereof.
"FINANCIAL MODEL" means the financial model in the agreed form prepared
by PricewaterhouseCoopers.
"FINANCIAL QUARTER" shall have the meaning ascribed to it in Clause 22.3
(Financial Definitions).
"FLOTATION" means a successful application being made for any part of
the share capital of the Group or any holding company of the Parent to
be listed on any stock exchange or the grant of permission to deal in
any such share capital on any recognised exchange.
"FRAMEWORK ACQUISITION AGREEMENT" means the form of purchase agreement
as identified in Section I Clause C (5) of Schedule 3 (Conditions
Precedent).
"FUNDS FLOW STATEMENT" means the chart and memorandum in the agreed form
showing the payments to be made by each member of the Group and TW US at
or immediately prior to the date hereof for the purposes of repaying the
Existing TW US Loan.
"GROUP" means the Parent and its subsidiaries for the time being.
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"GROUP ASSETS" means all the assets, properties and business of the
Group taken as a whole.
"GROUP REVENUES" means all revenues of the Parent.
"GROUP STRUCTURE CHART" means the group structure chart in agreed form
showing:
(a) all members of the Group;
(b) any person in which any Group member has an interest in the
issued share capital or equivalent ownership interest of such
person;
(c) the jurisdiction of incorporation or establishment of each
person within (a) above; and
(d) that all members of the Group are wholly-owned subsidiaries of
the Parent.
"GUARANTOR ACCESSION MEMORANDUM" means a memorandum substantially in the
form set out in Schedule 7 (Form of Guarantor Accession Memorandum).
"GUARANTORS" means each of the Original Guarantors and each Additional
Guarantor.
"HEDGE COUNTERPARTY" means a Bank which has become a party to the
Intercreditor Arrangements as a Hedge Counterparty in accordance with
the provisions thereof.
"HEDGING AGREEMENTS" means each of the agreements entered into or to be
entered into between the Group member(s) approved by the Agent and a
Hedge Counterparty for the purpose of hedging interest rate liabilities
in accordance with Clause 23.34 (Hedging).
"HOLDING ACCOUNT" means the account specified in a letter between the
Parent and the Agent which account is held by the Original Borrower with
the Security Agent (or any other interest bearing account held in
England (or any other jurisdiction agreed to by the Security Agent
(acting reasonably)) with the Security Agent by a Group member which is
opened after the date hereof and after receipt by the Agent of written
confirmation from the Parent that such account is to be a "Holding
Account") (as the same may be redesignated, substituted or replaced from
time to time) which is pledged, charged or assigned to the Security
Agent pursuant to the Security Documents to secure all amounts due under
the Finance Documents and from which the only withdrawals which may be
made are to:
(a) (i) in the case of any disposal proceeds deposited in such
account, reinvest in assets which are similar to the assets to
which such disposal proceeds relate or (ii) in the case of
insurance proceeds deposited in such account, repair, replace or
reinstate the assets to which such insurance proceeds relate or
to meet a third party claim or (iii) in the case of acquisition
recoveries deposited in such account, discharge the liability,
charge or claim to which such acquisition recoveries relate or
to be applied in repair, replacement or reinstatement of assets
which are a total loss or damaged as a result of the event or
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circumstance giving rise to such acquisition recoveries PROVIDED
THAT, in the case of any withdrawal, such withdrawal is made as
soon as reasonably practicable and in any event within 90 days
(or such longer period agreed by the Agent) of receipt of such
disposal proceeds or, as the case may be, acquisition recoveries
or within 180 days (or such longer period agreed by the Agent)
of receipt of such insurance proceeds and provided further the
Parent has provided a certificate to the Security Agent
requesting withdrawal of such proceeds (setting out in
reasonable detail how such withdrawal shall be applied); or
(b) repay amounts due to the Finance Parties under this Agreement,
and the interest rate on the deposit in such account to be the rate
applicable to corporate customers of a similar standing to such Group
member in respect of deposits in the same currency of similar amounts
and similar duration.
"HYPERION" means Hyperion Capital.
"INDEBTEDNESS FOR BORROWED MONEY" means any indebtedness in respect of
or arising under or in connection with Financial Indebtedness (save for
Financial Indebtedness falling within paragraph (h) of the definition of
"FINANCIAL INDEBTEDNESS").
"INFORMATION MEMORANDUM" means the document approved by the Parent
concerning the Group which, at their request and on their behalf, has
been prepared in relation to this transaction and distributed by the
Arranger to selected banks.
"INITIAL INVESTOR" means Triumph Partners III, L.P. and each of its
permitted successors, assigns or transferees.
"INSTRUCTING GROUP" means:
(a) whilst there are no Outstandings, a Bank or Banks whose
Commitments amount (or, if each Bank's Commitment has been
reduced to zero, did immediately before such reduction to zero,
amount) in aggregate to more than sixty-six and two thirds per
cent. of the Total Commitments; and
(b) whilst there are Outstandings, a Bank or Banks to whom in
aggregate more than sixty-six and two thirds per cent. of the
Sterling Amount of the Outstandings is owed.
"INTELLECTUAL PROPERTY" means any and all interests in any part of the
world in or relating to registered and unregistered trade marks and
service marks, domain names, patents, registered designs, trade names,
business names, titles, registered or unregistered copyrights in
published and unpublished works, unregistered designs, inventions
registered or unregistered, data base rights, know-how, any other
intellectual property rights and any applications for any of the
foregoing and any goodwill therein.
-12-
"INTERCREDITOR ARRANGEMENTS" means the intercreditor deed referred to in
Schedule 3 Part 1 paragraph E(3) (Conditions Precedent).
"INTEREST PERIOD" means, save as otherwise provided herein:
(a) any of those periods mentioned in Clause 4.1 (Interest Periods);
and
(b) in relation to an Unpaid Sum, any of those periods mentioned in
Clause 28.1 (Default Interest Periods).
"INTRA-GROUP BORROWERS" means the intra-group borrowers named in the
Intra-Group Loan.
"INTRA-GROUP LOAN" means any loan between members of the Group evidenced
by a loan agreement in the agreed form.
"IP LICENCE" means the licence or agreement pursuant to or under which
any Intellectual Property is held, used or exploited by any Group
member.
"JOINT VENTURE" means any joint venture entity, whether a company,
unincorporated firm, undertaking, association, joint venture or
partnership or any other entity.
"LEGAL OPINIONS" means the Legal Opinions delivered to the Agent in
accordance with Clause 2.3 (Conditions Precedent), Clause 36.2 (Borrower
Conditions Precedent) and Clause 37.2 (Guarantor Conditions Precedent).
"LEGAL RESERVATIONS" means the principle that equitable remedies may be
granted or refused at the discretion of a court, the limitation of
enforcement by laws relating to bankruptcy, insolvency, liquidation,
reorganisation, court schemes, moratoria, administration and other laws
generally affecting the rights of creditors, the time barring of claims
under the Limitation Acts, the possibility that an undertaking to assume
liability for or indemnify a person against non-payment of UK stamp duty
may be void and defences of set-off or counterclaim, rules against
contractual penalties and similar principles which are set out in the
Legal Opinions as qualifications as to matters of law.
"LIBOR" means, in relation to any amount owed by an Obligor hereunder on
which interest for a given period is to accrue:
(a) the percentage rate per annum equal to the offered quotation
which appears on the page of the Telerate Screen which displays
an average British Bankers Association Interest Settlement Rate
for sterling (being currently "3750") for such period at or
about 11.00 a.m. on the Quotation Date for such period or, if
such page or such service shall cease to be available, such
other page or such other service for the purpose of displaying
an average British Bankers Association Interest Settlement Rate
for such currency as the Agent, after consultation with the
Banks and the Parent, shall select; or
-13-
(b) if no quotation for the relevant currency and the relevant
period is displayed and the Agent has not selected an
alternative service on which a quotation is displayed, the
arithmetic mean (rounded upwards to four decimal places) of the
rates (as notified to the Agent) at which each of the Reference
Banks was offering to prime banks in the London Interbank Market
deposits in the currency of such amount and for such period at
or about 11.00 a.m. on the Quotation Date for such period.
"LMA" means the Loan Market Association.
"MARKET REPORT" means the market report by Cambridge Pharma Consultancy
dated November 1999 in relation to the Group in agreed form.
"MANAGEMENT OPTIONS" means the seven (7) day option for management to
invest in the Original Borrower pursuant to the Securities Purchase
Agreement.
"MANDATORY PREPAYMENT ACCOUNT" means an interest bearing account held in
England by the Original Borrower with the Security Agent and identified
in a letter between the Original Borrower and the Agent as a Mandatory
Prepayment Account (as the same may be redesignated, substituted or
replaced from time to time) which is pledged, charged or assigned to the
Security Agent pursuant to the Security Documents to secure amounts due
under the Finance Documents and from which no withdrawals may be made by
any Group members and the interest rate on the deposit in such account
to be the rate applicable to corporate customers of a similar standing
to such Group member in respect of deposits in the same currency of
similar amounts and similar duration.
"MARGIN" means the Applicable A Margin (subject to Clause 5.3 (Term
Margin Ratchet)), the Applicable B Margin or, as the context may
require, the Applicable Revolving Margin (subject to Clause 7.3
(Revolving Margin Ratchet)).
"MATERIAL ADVERSE EFFECT" means (a) a material adverse effect on the
assets, property, business, financial condition or the results of
operations of the Group taken as a whole or (b) a material adverse
effect on the ability of any Obligor to comply with any of its payment
obligations (and its obligations under Clause 22.1 (Financial
Covenants)) under the Finance Documents.
"MATERIAL SUBSIDIARY" means the Obligors and each other member of the
Group whose assets exceed 5% of the total assets of the Group and whose
profit exceed 5% of the gross profit of the Group by reference to the
most recently delivered audited accounts.
"MEZZANINE FACILITY" means the mezzanine loan facility made available to
the Borrower (as defined therein) on the terms and conditions of the
Mezzanine Credit Agreement.
"MEZZANINE CREDIT AGREEMENT" means the mezzanine credit agreement dated
of even date herewith and made between Transworld Healthcare UK, Limited
as borrower and
-14-
the banks and financial institutions named therein as Banks, setting out
the terms and conditions on which the Mezzanine Outstandings will be
made available.
"MEZZANINE FINANCE DOCUMENTS" means the Mezzanine Credit Agreement, the
Mezzanine Warrant Instrument, any guarantor accession memorandum under
the Mezzanine Credit Agreement, the Security Documents which provide
security to the Mezzanine Lenders, the Intercreditor Arrangements, the
fee letters referred to in Clause 26.3 (Arrangement Fee) of the
Mezzanine Credit Agreement and any documents evidencing the terms of any
other agreement or document that may be entered into or executed
pursuant to any of the foregoing by the Obligors or any of them and any
other document which is designated a "MEZZANINE FINANCE DOCUMENT" or
"FINANCE DOCUMENT" in writing signed by the Parent and the Mezzanine
Banks.
"MEZZANINE BANKS" means the "BANKS" as defined in the Mezzanine Credit
Agreement.
"MEZZANINE OUTSTANDINGS" means the loan in the maximum principal amount
of (pounds sterling)10,000,000 to be made available by the Mezzanine
Banks under the Mezzanine Credit Agreement, the rights in relation to
which are subject to the provisions of the Intercreditor Arrangements.
"MEZZANINE WARRANT INSTRUMENT" means the mezzanine warrant instrument
executed as a deed dated of even date hereof by the Original Borrower
and any other document or agreement entered into or executed in
connection with such instrument or the rights set out therein.
"MIRROR NOTES" means the mirror loan notes constituted by the Securities
Purchase Agreement.
"MIRROR PIK NOTES" means promissory loan notes constituted by the
Securities Purchase Agreement issued in lieu of the interest due on the
Mirror Notes.
"MIRROR NOTE DOCUMENTS" means the Mirror Notes and the Securities
Purchase Agreement in agreed form and any other documents entered into
pursuant thereto.
"NET DISPOSAL PROCEEDS" means the gross total proceeds (including any
amounts received in repayment of intercompany debt) received by Group
members in cash from all disposals of any revenues or fixed assets of
the Group (other than Excluded Proceeds) less:
(a) reasonable out of pocket expenses of the Group incurred due to
such disposal;
(b) restructuring and other costs incurred by the Group in
connection with any such disposal to the extent not included in
(a) above provided that such costs are in an amount acceptable
to an Instructing Group (acting reasonably);
(c) the VAT or similar tax paid or payable by any member of the
Group due to such disposal; and
-15-
(d) any income, capital gains or other taxes incurred and required
to be paid by any member of the Group in connection with such
disposal as reasonably determined in good faith by such member
of the Group on the basis of the existing tax rates applicable
to the gain (if any) and after taking into account all available
credits, deductions and allowances.
"NOTICE OF DRAWDOWN" means a notice substantially in the form set out in
Schedule 4 (Notice of Drawdown).
"OBLIGORS" means the Parent, the Borrower and the Guarantors.
"ORIGINAL FINANCIAL STATEMENT" means:
(a) in relation to the Parent, its audited consolidated financial
statements for its financial year ended 30 September 1999; and
(b) in relation to each Obligor other than the Parent, its audited
financial statements for its financial year ended 30 September
1999; and
(c) in relation to any Additional Obligor, its audited financial
statements delivered pursuant to Schedule 8 (Additional
Conditions Precedent).
"ORIGINAL OBLIGORS" means the Original Borrower and the Original
Guarantors.
"ORIGINAL SENIOR SUBORDINATED NOTE AMOUNT" means the actual issued
amount (up to (pounds sterling)22,600,000) pursuant to the Securities
Purchase Agreement being the aggregate principal amount of the Senior
Subordinated Notes on issue but excluding any PIK Notes.
"ORIGINAL STERLING AMOUNT" means:
(a) in relation to a Revolving Advance, the amount specified in the
Notice of Drawdown relating thereto, as the same may be reduced
pursuant to Clause 6.2 (Reduction of Available Revolving
Commitment); and
(b) in relation to a Term Advance:
(i) where such Advance came into existence as a result of a
drawing under either Term Facility, the amount specified
as such in the Notice of Drawdown relating thereto, as
the same may be reduced pursuant to Clause 3.4
(Reduction of Available Term Commitment);
(ii) where such Term Advance came into existence upon the
consolidation of two or more Term Advances, the
aggregate of the Sterling Amounts of the Term Advances
so consolidated; and
(iii) where such Term Advance came into existence upon the
division of a Term Advance, the amount specified as such
by the relevant Borrower pursuant to Clause 4.4
(Division of Term Advances).
-16-
"OUTSTANDINGS" means, at any time, the Term Outstandings and the
Revolving Outstandings.
"PARTY" means a party to this Agreement.
"PAYMENT BLOCKAGE EVENT" means:
(a) the occurrence of any Event of Default which is continuing; or
(b) any event or circumstance which would become (with the passage
of time, the giving of notice in each case as contemplated or
required under Clause 24 (Events of Default)) an Event of
Default PROVIDED THAT in the case of any event or circumstance
falling within this paragraph (b) such Payment Blockage Event
shall not be capable of "continuing" for more than 30 days with
respect to a particular event or circumstance.
"PERMITTED ACQUISITIONS" means an acquisition of a business (a "RELEVANT
BUSINESS") where:
(a) the acquisition comprises an acquisition of assets and not
shares;
(b) the assets to be acquired are free from all Encumbrances (except
the Encumbrance identified in paragraph (h) and (i) of the
definition of Permitted Encumbrances) and any other third party
claim;
(c) the Relevant Business is substantially similar to paragraph (a)
of the definition of Business as conducted at the time of the
proposed acquisition;
(d) the Total Consideration for any single Permitted Acquisition
hereunder shall not exceed five times EBITDA. Where the turnover
of the Relevant Business is up to (pounds sterling)200,000,
EBITDA shall be evidenced by the latest available financial
statements and where such turnover is greater than
(pounds sterling)200,000, EBITDA shall be determined by
reference to the latest available audited financial statements
or the latest available financial statements for a twelve (12)
month period reviewed by an independent accounting firm;
(e) the Relevant Business must have a positive Adjusted Cash Flow
taking into account the applicable Agreed Pro Forma Adjustments;
(f) a certificate signed by the Chief Financial Officer of the
Parent (supported by a board resolution authorising the issue of
such certificate) confirming that the Group companies have
sufficient available cash resources and/or credit facilities
under or permitted by the terms of this Agreement to meet the
ongoing working capital requirements of the Group as enlarged by
such acquisition;
(g) the Revised Financial Projections demonstrate that the Group
will at all times be in compliance with its obligations under
Clause 22 (Financial Condition).
-17-
"PERMITTED DISPOSALS" means:
(a) disposals on arm's length terms of stock in trade or expenditure
of cash by a Group member in its ordinary course of trade;
(b) disposals:
(i) by an Obligor to another Obligor (other than the Parent
or the Original Borrower) which is party to a legally
valid, binding and (subject to the Legal Reservations)
enforceable Security Document which creates a first
priority Encumbrance over the assets and/or revenue
disposed of; or
(ii) by a member of the Group which is not an Obligor to
another member of the Group (other than to the Parent or
the Original Borrower) PROVIDED THAT, in the case of
transfer to an Obligor, such assets and/or revenue are
not subject to any material liabilities or Encumbrances;
(c) disposals for cash on arm's length terms of any surplus or
obsolete or worn-out assets not required for the efficient
operation of the business of the Group by any Group member;
(d) disposals of Cash Equivalent Investments on arm's length terms;
and
(e) disposals on arm's length terms of assets in return for other
assets of comparable or greater value;
(f) disposals on arm's length terms of assets the proceeds of which
are to be re-invested in similar or like assets within a period
of 180 days from the date of receipt of such proceeds by the
relevant member of the Group;
(g) disposals of cash where such disposal is not prohibited by the
Finance Documents;
(h) any other disposal PROVIDED THAT the consideration (both cash
and non-cash) received for such disposal(s) does not exceed in
aggregate (pounds sterling)250,000 in any period of twelve
months.
"PERMITTED ENCUMBRANCE" means:
(a)
(i) any netting or set-off arrangement (or any Encumbrance
over a credit balance in a bank account which is entered
into in order to effect such an arrangement) entered
into by any member of the Group in the normal course of
its banking arrangements;
(ii) any netting or set-off arrangement under a Hedging
Agreement where the obligations of other parties
thereunder are calculated by reference to net exposure
thereunder (but not any netting or set-off relating to
such
-18-
Hedging Agreement in respect of cash collateral or any
other Encumbrance except as otherwise permitted
hereunder);
(b) any title transfer or retention of title arrangement entered
into by any member of the Group in the normal course of its
trading activities on the counterparty's standard or usual
terms;
(c) any lien arising by operation of law and in the normal course of
business PROVIDED THAT such lien is discharged within thirty
days of arising;
(d) any Encumbrance arising under or evidenced by a Security
Document;
(e) any Encumbrance entered into pursuant to this Agreement;
(f) any Encumbrance arising under the Mezzanine Credit Agreement;
(g) any lien in favour of a bank over goods and documents of title
to goods arising in the ordinary course of documentary credit
transactions entered into in the ordinary course of trade; and
(h) any Encumbrance constituted by a Finance Lease which does not
exceed (pounds sterling)50,000 for each transaction and subject
to an aggregate amount which does not at any time exceed
(pounds sterling)500,000;
(i) in addition to any Encumbrances subsisting pursuant to paragraph
(a) to (h) above any other Encumbrances PROVIDED THAT the amount
secured by such Encumbrances referred to in this paragraph (i)
does not at any time exceed (pounds sterling)200,000.
"PERMITTED EQUITY FUNDED ACQUISITIONS" means an acquisition of the whole
of the shares in a limited liability company (a "RESTRICTED SUBSIDIARY")
or the acquisition of a business (a "PERMITTED BUSINESS") funded
entirely from Available Cash where:
(a) no later than eight days before the purchase date of a Permitted
Equity Funded Acquisition, the Agent has received all the
materials set out in Clause 3.2.3 and Schedule 3 (Conditions
Precedent) Part II it would have received had this acquisition
been a Permitted Acquisition;
(b) the acquisition comprises an acquisition of assets of a
Permitted Business or shares of a Restricted Subsidiary;
(c) the assets of the Permitted Business to be acquired are free
from all Encumbrances and any other third party claims;
(d) the Restricted Subsidiary (i) holds its assets free from all
Encumbrances (except the Encumbrance identified in paragraph (h)
and (i) of the definition of Permitted Encumbrances), (ii) is
acquired on arm's length terms, (iii) has no Financial
Indebtedness and (iv) accedes to this Agreement as a Guarantor
pursuant to Clause 37 (Additional Guarantors);
-19-
(e) the Relevant Business or the Restricted Subsidiary's business is
substantially similar to paragraph (a) of the definition of
business as conducted at the time of the proposed acquisition;
(f) the Restricted Subsidiary or Permitted Business must be EBITDA
positive. Where the turnover of the Relevant Business or
Restricted Subsidiary is up to (pounds sterling)200,000, EBITDA
shall be evidenced by the latest available financial statements
and where such turnover is greater than (pounds sterling)
200,000, EBITDA shall be determined by reference to the latest
available audited financial statements or the latest financial
statements for a twelve (12) month period reviewed by an
independent accounting firm;
(g) the Restricted Subsidiary or the Permitted Business must have a
positive Adjusted Cash Flow taking into account the applicable
Agreed Pro Forma Adjustments;
(h) a certificate signed by the Chief Financial Officer of the
Parent (supported by a board resolution authorising the issue of
such certificate) confirming that the Group companies have
sufficient available cash resources and/or credit facilities
under or permitted by the terms of this Agreement to meet the
ongoing working capital requirements of the Group as enlarged by
such acquisition;
(i) the Revised Financial Projections demonstrate that the Group
will at all times be in compliance with its obligations under
Clause 22 (Financial Condition); and
(j) the aggregate amount of Total Consideration for all Permitted
Equity Funded Acquisitions hereunder shall not exceed
(pounds sterling)5,000,000 in each financial year.
"PERMITTED INDEBTEDNESS" means:
(a) any Financial Indebtedness arising under or permitted pursuant
to the Finance Documents;
(b) any Financial Indebtedness arising under the Mezzanine Credit
Agreement;
(c) any Financial Indebtedness arising under the Senior Subordinated
Note Documents or the Mirror Note Documents;
(d) any Financial Indebtedness arising under Permitted Transactions;
(e) any Financial Indebtedness arising under Permitted Treasury
Transactions;
(f) any Financial Indebtedness PROVIDED THAT such Financial
Indebtedness is subordinated on terms acceptable to an
Instructing Group);
(g) any Financial Indebtedness arising under Finance Leases;
-20-
(h) any Financial Indebtedness under unsecured overdraft facilities
in an amount, when aggregated with the amount of all
indebtedness incurred under (i) below, not exceeding
(pounds sterling)100,000 (or its equivalent) at any time;
(i) any other Financial Indebtedness which, when aggregated with all
Financial Indebtedness incurred under (h) above, does not exceed
(pounds sterling)100,000 (or its equivalent) at any time.
"PERMITTED TRANSACTIONS" means:
(a) Intra-Group Loans PROVIDED THAT such loans are:
(i) trade credits or guarantees or indemnities granted in
the ordinary course of trading and upon terms usual for
trade; or
(ii) loans by a member of the Group which is not an Obligor
to another member of the Group which is not an Obligor;
or
(iii) loans by an Obligor to the Original Borrower to fund the
obligations of the Original Borrower under the Finance
Documents, the Mezzanine Documents or, as the case may
be, the Mirror Notes provided that in each case the
proceeds of such Intra Group Loan are immediately
applied in satisfaction of such obligation(s);
(iv) loans by an Obligor to another Obligor (other than the
Parent or the Original Borrower);
(v) loans by an Obligor to the Parent to fund (1) tax
liabilities and (2) administration costs provided that
the aggregate amount of such loans outstanding do not
exceed (pounds sterling)100,000 per annum; and
(vi) loans by any Obligor to any of its employees provided
that the aggregate amount of such loans outstanding at
anytime does not exceed (pounds sterling)250,000.
(b) payments permitted pursuant to Clause 23.24 (Dividends,
Distributions and Interest).
"PERMITTED TREASURY TRANSACTIONS" means the Treasury Transactions
entered into in accordance with Clause 23.34 (Hedging).
"PIK NOTES" means the promissory loan notes constituted by the
Securities Purchase Agreement issued in lieu of interest on the Senior
Subordinated Notes.
"POTENTIAL EVENT OF DEFAULT" means any event which would become (with
the passage of time, the giving of notice or any combination thereof) an
Event of Default PROVIDED THAT any such event which requires the
satisfaction of any conditions as to materiality before it becomes an
Event of Default shall not be a Potential Event of Default until that
condition is satisfied.
-21-
"PROPORTION" means, in relation to a Bank:
(a) whilst no Advance is outstanding, the proportion borne by its
Commitment to the Total Commitments (or, if the Total
Commitments are then zero, by its Commitment to the Total
Commitments immediately prior to their reduction to zero); or
(b) whilst at least one Advance is outstanding, the proportion borne
by its share of the Sterling Amount of the Outstandings to the
Sterling Amount of the Outstandings.
"QUALIFYING BANK" means an Applicable Treaty Bank or a Bank acting out
of a Facility Office to which payments pursuant to this Agreement by a
Borrower may be made free and clear of any deduction or withholding on
account of any taxes of, or imposed by, the Relevant Jurisdiction of
such Borrower.
"QUOTATION DATE" means, in relation to any period for which an interest
rate is to be determined hereunder, the day on which quotations would
ordinarily be given by prime banks in the London Interbank Market for
deposits in the currency in relation to which such rate is to be
determined for delivery on the first day of that period, PROVIDED THAT,
if, for any such period, quotations would ordinarily be given on more
than one date, the Quotation Date for that period shall be the last of
those dates.
"REFERENCE BANKS" means the principal London offices of Barclays Bank
PLC, Paribas and such Banks as may be appointed as such by the Agent
after consultation with the Parent.
"RELIANCE LETTER" means any letter in the agreed form from a provider of
a Report and which is addressed to the Agent (on behalf of the Finance
Parties) pursuant to which the provider of the Report agrees that the
Finance Parties are entitled to rely on such Report.
"REPAYMENT DATE" means, in relation to any Revolving Advance, the last
day of the Term thereof.
"REPEATED REPRESENTATIONS" means:
(a) on the date hereof and on the first date on which an Advance is
made under the Facilities, all of the representations set out in
Clause 19 (Representations); and
(b) at any other time, each of the representations set out in:
(i) Clause 19.1 (Status) to Clause 19.10 (No Immunity) other
than Clauses 19.3 (Execution and Power), 19.7 (Validity
and Admissibility in Evidence) and 19.4.2 (No Material
Proceedings); and
-22-
(ii) Clause 19.14 (No Material Defaults) to Clause 19.32
(Year 2000 Compliance) other than Clauses 19.15
(Information), 19.16 (Information Memorandum), 19.23
(Consents and Approvals).
"REPORTS" means the Accountants Report, the Due Diligence Report and the
Market Report.
"RESIGNATION NOTICE" means a notice substantially in the form set out in
Schedule 9 (Form of Resignation Notice).
"REVISED FINANCIAL PROJECTIONS" means the financial projections of the
Group and each Group member on a consolidated and consolidating basis
prepared on a pro forma basis assuming that the proposed acquisition was
completed at the start of the twelve month period ending on the next
Quarter Date falling after the proposed Purchase Date.
"REVOLVING ADVANCE" means an advance made or to be made by the Banks
under the Revolving Facility.
"REVOLVING COMMITMENT" means, in relation to a Bank at any time and save
as otherwise provided herein, the amount set opposite its name under the
heading "REVOLVING COMMITMENT" in Schedule 1 (The Banks).
"REVOLVING FACILITY" means the revolving loan granted to the Borrower in
this Agreement.
"REVOLVING OUTSTANDINGS" means, at any time, the aggregate of the
Sterling Amounts of each outstanding Revolving Advance.
"REVOLVING TERMINATION DATE" means the date falling one month prior to
the Final Maturity Date PROVIDED THAT if such day is not a Business Day,
it shall be deemed to be the next succeeding Business Day.
"ROLLOVER ADVANCE" means an Advance which is used to refinance a
maturing Advance and which is the same amount or lesser amount and the
same currency as such maturing Advance and is to be drawn on the day
such maturing Advance is to be repaid.
"SECURITIES PURCHASE AGREEMENT" means the loan note instrument made by
the Parent constituting up to (pounds sterling)22,600,000 senior
subordinated loan notes, 9.375% due 2007 and by the Original Borrower
constituting up to (pounds sterling)22,600,000 senior subordinated
mirror notes, 9.375% due 2007.
"SECURITY" means the security from time to time constituted by or
pursuant to the Security Documents.
"SECURITY DOCUMENTS" means each of the Debentures by each Obligor
together with any other document entered into by any member of the Group
creating or evidencing security for all or any part of the obligations
of the Obligors or any of them under any
-23-
of the Finance Documents whether by way of personal covenant, charge,
security interest, mortgage, pledge or otherwise and as referred to in
Part I Section E of Schedule 3 (Conditions Precedent).
"SENIOR SUBORDINATED NOTES" means the senior subordinated loan notes
constituted by the Securities Purchase Agreement.
"SENIOR SUBORDINATED NOTE DOCUMENTS" means the Senior Subordinated Notes
and the Securities Purchase Agreement in agreed form and any other
documents entered into pursuant thereto.
"SENIOR SUBORDINATED NOTE HOLDERS" means the holders of any Senior
Subordinated Notes from time to time.
"SERVICE CONTRACTS" means the deed of restrictive covenant in agreed
form entered into between the Original Borrower and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
"SOLVENCY CERTIFICATE" means each of the solvency certificates certified
by the Chief Finance Officer of the Parent in relation to the solvency
of the Parent and the Original Borrower and certified by the Chief
Finance Officer of TW US in relation to the solvency of TW US.
"STERLING AMOUNT" means:
(a) in relation to an Advance, its Original Sterling Amount as
reduced by the proportion (if any) of such Advance which has
been repaid; and
(b) in relation to the Outstandings, the aggregate of the Sterling
Amounts of each outstanding Advance.
"STRATEGIC SALE" means the sale, liquidation or disposition or
(including by way of merger or consolidation, regardless of whether the
Parent or the Original Borrower are the surviving or resulting
corporation) of stock or assets accounting for ninety per cent. (90%) or
more of the total value of all Group Assets or generating ninety per
cent. (90%) or more of all Group Resources.
"SYNDICATION DATE" means the day specified by the Arranger as the date
on which primary syndication of the Facilities is completed.
"TERM" means, save as otherwise provided herein in relation to any
Advance, the period for which such Advance is borrowed, as specified in
the Notice of Drawdown relating thereto.
"TERM ADVANCE" means a Term A Advance or a Term B Advance.
"TERM A ADVANCE" means an advance (as from time to time consolidated,
divided or reduced by repayment) made or to be made by the Banks under
the Term A Facility.
-24-
"TERM B ADVANCE" means an advance (as from time to time consolidated,
divided or reduced by repayment) made or to be made by the Banks under
the Term B Facility.
"TERM AVAILABILITY PERIOD" means the Term A Availability Period and the
Term B Availability Period.
"TERM A AVAILABILITY PERIOD" means the period from the date hereof to
and including the earlier of (a) thirty days from the date hereof and
(b) the first Business Day on which the Available Term A Commitment of
each of the Banks is zero.
"TERM B AVAILABILITY PERIOD" means the period from the date hereof to
and including the earlier of (a) thirty-six months from the date hereof
and (b) the first Business Day on which the Available Term B Commitment
of each of the Banks is zero.
"TERM COMMITMENT" means, in relation to a Bank at any time and save as
otherwise provided herein, the aggregate of its Term A Commitment and
its Term B Commitment.
"TERM A COMMITMENT" means, in relation to a Bank at any time and save as
otherwise provided herein, the amount set opposite its name under the
heading "TERM A COMMITMENT" in Schedule 1 (The Banks).
"TERM B COMMITMENT" means, in relation to a Bank at any time and save as
otherwise provided herein, the amount set opposite its name under the
heading "TERM B COMMITMENT" in Schedule 1 (The Banks).
"TERM FACILITIES" means the Term A Facility and the Term B Facility and
"TERM FACILITY" shall mean any one of them.
"TERM A FACILITY" means the term loan facility granted to the Borrowers
under sub-clause 2.1.1 (Grant of the Facilities) of this Agreement.
"TERM B FACILITY" means the term loan facility granted to the Borrowers
under sub-clause 2.1.2 (Grant of the Facilities) of this Agreement.
"TERM OUTSTANDINGS" means, at any time, the aggregate of the Term A
Outstandings and the Term B Outstandings at such time.
"TERM A OUTSTANDINGS" means, at any time, the aggregate principal amount
of the outstanding Term A Advances.
"TERM B OUTSTANDINGS" means, at any time, the aggregate principal amount
of the outstanding Term B Advances.
"TERM REPAYMENT DATE" means the date specified in Clause 10.1 (Term
Repayment Instalments), provided that if such date is not a Business
Day, it shall be deemed to be the next succeeding Business Day.
"TOTAL COMMITMENTS" means, at any time, the aggregate of the Banks'
Commitments.
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"TOTAL CONSIDERATION" means, in relation to a Permitted Acquisition, the
aggregate amount of:
(a) the gross payment to the vendors;
(b) the Acquisition Working Capital; and
(c) the Earn Out.
"TRANSFER CERTIFICATE" means a certificate substantially in the form set
out in Schedule 2 (Form of Transfer Certificate) or the standard form
from time to time of the LMA Transfer Certificate (Par) signed by a Bank
and a Transferee under which:
(a) such Bank seeks to procure the transfer to such Transferee of
all or a part of such Bank's rights, benefits and obligations
hereunder upon and subject to the terms and conditions set out
in Clause 35.3 (Assignments and Transfers by Banks); and
(b) such Transferee undertakes to perform the obligations it will
assume as a result of delivery of such certificate to the Agent
as contemplated in Clause 35.5 (Transfers by Banks).
"TRANSFER DATE" means, in relation to any Transfer Certificate, the date
for the making of the transfer as specified in such Transfer
Certificate.
"TRANSFEREE" means a person to which a Bank seeks to transfer all or
part of such Bank's rights, benefits and obligations under the Finance
Documents.
"TREATY ON EUROPEAN UNION" means the Treaty of Rome of 25 March 1957, as
amended by the Single ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ and the Maastricht Treaty (which
was signed at Maastricht on 7 February 1992 and came into force on 1
November 1993).
"TREASURY TRANSACTION" means any currency or interest purchase, cap or
collar agreement, forward rate agreements, interest rate or currency
future or option contract, foreign exchange or currency purchase or sale
agreement, interest rate swap, currency swap or combined interest rate
and currency swap agreement and any other similar agreement.
"TW US" means Transworld Healthcare, Inc., a company incorporated in the
state of New Jersey, United States of America.
"TW US STRATEGY PAPER" means the strategy paper prepared by TW US
setting out the business strategy of TW US.
"UNPAID SUM" means the unpaid balance of any of the sums referred to in
Clause 28.1 (Default Interest Periods).
"UK GAAP" means generally accepted accounting principles in the United
Kingdom.
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"UTILISATION DATE" means, in relation to an Advance, the date on which
it is to be made.
"VOTING TRUST AGREEMENT" means the voting trust agreement dated on or
about the date hereof and made between the Parent, the Initial Investor,
the Original Borrower, TW US and the Trustee (as defined therein).
"WAREHOUSE ACQUISITION COST" means an amount equal to approximately
(pounds sterling)1,900,000 being the cost incurred by and payable to
Hyperion in relation to the acquisitions of Odiham, Finchley and
Birmingham made by Hyperion on behalf of Allied Medicare.
"WARRANT DOCUMENTS" means the Warrant Instrument and Mezzanine Warrant
Instrument.
"WARRANT INSTRUMENT" means the warrant instrument pursuant to which
warrants are to be issued to Senior Subordinated Noteholders pursuant to
the Securities Purchase Agreement executed as a deed dated of even date
herewith by the Original Borrower and any other document or agreement
entered into or executed in connection with such instrument or the
rights set out therein.
1.2 INTERPRETATION
Any reference in this Agreement to:
the "AGENT", any "ARRANGER", any "UNDERWRITER" the "SECURITY AGENT", any
"HEDGE COUNTERPARTY" or any "BANK" shall be construed so as to include
it and any subsequent successors and permitted transferees and assigns
in accordance with their respective interests;
a document is in "AGREED FORM" if it is initialled as such on or before
the date hereof for the purposes of identification by or on behalf of
the Parent and the Arranger or Agent or is executed on or before the
date hereof by the Parent and the Arranger or Agent or, if not so
executed or initialled, is in form and substance reasonably satisfactory
to the Agent;
"CONTINUING", in relation to an Event of Default, shall be construed as
a reference to an Event of Default which has not been waived in
accordance with the terms hereof or remedied and, in relation to a
Potential Event of Default, one which has not ceased to be a Potential
Event of Default;
the "CONTROL" of a company or corporation shall be construed as:
(a) the power (whether by way of ownership of shares, proxy,
contract, agency, operation of law, or otherwise, and whether
direct or indirect) to:
(i) cast, or control the casting of, more than one-half of
the maximum number of votes that might be cast at a
general meeting of that company or corporation; or
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(ii) appoint or remove all, or the majority, of the directors
or other equivalent officers of that company or
corporation (and the relevant person or persons shall be
deemed to have power to make such an appointment if:
(1) an individual cannot be appointed as a director
or an equivalent officer of that company or
corporation without the exercise by the relevant
person or persons of such power in the
individual's favour; or
(2) an individual's appointment as a director or an
equivalent officer of that company or
corporation follows necessarily from the
individual being a director or other equivalent
officer of any of the relevant person or
persons); or
(iii) give directions with respect to the management,
operating and/or financial policies of that company or
corporation which the directors or other equivalent
officers of that company or corporation are obliged to
comply with; or
(b) the holding of more than one-half of the issued share capital of
that company or corporation (excluding any part of that issued
share capital that carries no right to participate beyond a
specified amount in a distribution of either profits or
capital);
"DISPOSAL" shall be construed as any sale, lease, transfer, conveyance,
subparticipation, granting of derivative interests, assignment, licence,
sub-licence or other disposal (including, without limitation, any other
transaction or arrangement pursuant to which the economic or other
commercial benefit of the existing and/or remaining assets of the
relevant person is lost or materially diluted) and "DISPOSE" shall be
construed accordingly;
a "GUARANTEE" means any guarantee, bond, indemnity, or other legally
binding assurance against financial loss granted by one person in
respect of any indebtedness of another person, or any legally binding
agreement by one person to assume any indebtedness of (or any legally
binding arrangement by or under which indebtedness is assumed in respect
of) any other person and "GUARANTEED" shall be construed accordingly;
a "HOLDING COMPANY" of a company or corporation shall be construed as a
reference to any company or corporation of which the first-mentioned
company or corporation is a subsidiary;
"INDEBTEDNESS" shall be construed so as to include any obligation
(whether incurred as principal or as surety) for the payment or
repayment of money, whether present or future, actual or contingent;
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"INSOLVENCY PROCEEDING" (a) means any proceeding by, against or in
respect of any company or corporation for its liquidation, bankruptcy,
winding-up, dissolution, reorganisation, moratorium or for the
appointment of a receiver, administrator, administrative receiver,
trustee or similar officer in respect of it or of all or a substantial
part of its assets, and (b) shall be construed so as to include any
equivalent or analogous proceedings under the law of the jurisdiction in
which such company or corporation is incorporated or any jurisdiction in
which such company or corporation carries on business;
a "LAW" shall be construed as any law (including common or customary
law), statute, constitution, decree, judgment, treaty, regulation,
directive, bye-law, order or any other legislative measure of any
government, supranational, local government, statutory or regulatory
body or court;
a "MONTH" is a reference to a period starting on one day in a calendar
month and ending on the numerically corresponding day in the next
succeeding calendar month save that:
(a) if any such numerically corresponding day is not a Business Day,
such period shall end on the immediately succeeding Business Day
to occur in that next succeeding calendar month or, if none, it
shall end on the immediately preceding Business Day; and
(b) if there is no numerically corresponding day in that next
succeeding calendar month, that period shall end on the last
Business Day in that next succeeding calendar month;
a "PERSON" shall be construed as a reference to any person, firm,
company, corporation, government, state or agency of a state or any
association or partnership (whether or not having separate legal
personality) of two or more of the foregoing;
"REPAY" (or any derivative form thereof) shall, subject to any contrary
indication, be construed to include "PREPAY" (or, as the case may be,
the corresponding derivative form thereof);
a "SUBSIDIARY" of a company or corporation shall be construed as a
reference to any company or corporation:
(a) which is controlled, directly or indirectly, by the
first-mentioned company or corporation;
(b) more than half the issued share capital of which is beneficially
owned, directly or indirectly, by the first-mentioned company or
corporation; or
(c) which is a subsidiary of another subsidiary of the
first-mentioned company or corporation
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and, for these purposes, a company or corporation shall be treated as
being controlled by another if that other company or corporation is able
to direct its affairs and/or to control the composition of its board of
directors or equivalent body.
a "SUCCESSOR" shall be construed so as to include an assignee or
successor in title of such party and any person who under the laws of
its jurisdiction of incorporation or domicile has assumed the rights and
obligations of such party under this Agreement or to which, under such
laws, such rights and obligations have been transferred;
"TAX" shall be construed so as to include any tax (which shall include,
but not be limited to, corporation tax and advance corporation tax),
levy, impost, duty or other charge of a similar nature (including any
penalty or interest payable in connection with any failure to pay or any
delay in paying any of the same);
"VAT" shall be construed as a reference to value added tax including any
similar tax which may be imposed in place thereof from time to time; and
a "WHOLLY-OWNED SUBSIDIARY" of a company or corporation shall be
construed as a reference to any company or corporation which has no
other members except that other company or corporation and that other
company's or corporation's wholly-owned subsidiaries or persons acting
on behalf of that other company or corporation or its wholly-owned
subsidiaries.
1.3 CURRENCY SYMBOLS AND DEFINITIONS
"(pounds sterling)" AND "STERLING " denote lawful currency of the United
Kingdom.
1.4 AGREEMENTS AND STATUTES Any reference in this Agreement to:
1.4.1 this Agreement or any other agreement or document shall be
construed as a reference to this Agreement or, as the case may
be, such other agreement or document as the same may have been,
or may from time to time be, amended, varied, novated or
supplemented; and
1.4.2 a statute or treaty shall be construed as a reference to such
statute or treaty as the same may have been, or may from time to
time be, amended or, in the case of a statute, re-enacted.
1.5 HEADINGS
Clause and Schedule headings are for ease of reference only.
1.6 TIME
Any reference in this Agreement to a time of day shall, unless a
contrary indication appears, be a reference to London time.
1.7 NO PERSONAL LIABILITY FOR DIRECTORS
No part of this Agreement shall be construed so as to attach any
personal liability, obligation or duty to any director of any Group
member.
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2. THE FACILITIES
2.1 GRANT OF THE FACILITIES
The ▇▇▇▇▇ ▇▇▇▇▇ to the Borrowers, upon the terms and subject to the
conditions hereof:
2.1.1 a term loan facility in an aggregate amount of up to
(pounds sterling)28,000,000 (THE "TERM A FACILITY");
2.1.2 a term loan facility in an aggregate amount of up to
(pounds sterling)12,500,000 (THE "TERM B FACILITY"); and
2.1.3 a revolving loan in an aggregate amount of up to
(pounds sterling)5,000,000 (THE "REVOLVING FACILITY").
2.2 PURPOSE AND APPLICATION
2.2.1 The Term A Facility is intended for the purpose of refinancing
Existing TW US Loans.
2.2.2 The Term B Facility is intended for the purpose of (a) financing
up to fifty per cent. of the Total Consideration payable in
relation to Permitted Acquisitions including the financing of
Acquisition Costs and (b) financing up to fifty per cent. of the
Warehouse Acquisition Cost.
2.2.3 The Revolving Facility is intended for financing the general
working capital and Capital Expenditure requirements and for
general corporate purposes of the Group.
2.2.4 The Available Cash is intended for the purpose of financing the
Total Consideration.
2.2.5 Accordingly, each Borrower shall so apply all amounts raised by
it hereunder and none of the Finance Parties shall be obliged to
concern themselves with such application.
2.3 CONDITIONS PRECEDENT
Save as the Banks may otherwise agree, none of the Borrowers may deliver
any Notice of Drawdown unless the Agent has confirmed to the Parent and
the Banks that it has received all of the documents and other evidence
listed in Schedule 3 Part I (Conditions Precedent) and that each is, in
form and substance, satisfactory to the Agent.
2.4 SEVERAL OBLIGATIONS
The obligations of each Bank are several and the failure by a Bank to
perform its obligations hereunder shall not affect the obligations of an
Obligor towards any other party hereto nor shall any other party be
liable for the failure by such Bank to perform its obligations
hereunder.
2.5 SEVERAL RIGHTS
The rights of each Finance Party are several and any debt arising
hereunder at any time from an Obligor to any Finance Party hereto shall
be a separate and independent debt.
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Each such party shall be entitled to protect and enforce its individual
rights arising out of this Agreement independently of any other party
(so that it shall not be necessary for any party hereto to be joined as
an additional party in any proceedings for this purpose).
3. UTILISATION OF THE TERM FACILITY
3.1 UTILISATION CONDITIONS FOR THE TERM A FACILITY
A Term A Advance will be made if:
3.1.1 not later than 11.00 a.m. three Business Days before the
proposed Utilisation Date, the Agent has received a completed
Notice of Drawdown from the Borrower;
3.1.2 the proposed Original Sterling Amount of such Term Advance is
(pounds sterling)28,000,000 which is equal to the amount of the
Available Term A Facility;
3.1.3 the interest rate applicable to such Term A Advance during its
first Interest Period would not fall to be determined pursuant
to Clause 8.1 (Market Disruption);
3.1.4 the proposed date for the making of such Term A Advance is a
Business Day falling within the Term A Availability Period;
3.1.5 on and as of the proposed Utilisation Date (a) no Event of
Default or Potential Event of Default is continuing or would
occur as a result of the making of such Term A Advance and (b)
the Repeated Representations are true (before and immediately
after the making of such Term Advance) by reference to the facts
and circumstances then existing.
3.2 UTILISATION CONDITIONS FOR THE TERM B FACILITY AND THE AVAILABLE CASH
3.2.1 A Term B Advance will be made if:
(a) (i) not later than eight Business Days before the
proposed Utilisation date, the Agent has received the
materials set out in Clause 3.2.3, and (ii) not later
than 11.00 a.m. three Business Days before the proposed
Utilisation Date, the Agent has received a completed
Notice of Drawdown from the Borrower;
(b) the proposed Original Sterling Amount of such Term B
Advance is (a) a minimum amount of (pounds
sterling)100,000 or (b) equal to or less than the amount
of the Available Term B Facility;
(c) there would not, immediately upon the maturity of such
Term B Advance, be more than six Term B Advances
outstanding;
(d) the interest rates applicable to such Term B Advance
during its first Interest Period would not fall to be
determined pursuant to Clause 8.1 (Market Disruption);
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(e) the proposed date for the making of such Term B Advance
is a Business Day falling within the Term B Availability
Period;
(f) on and as of the proposed Utilisation Date (a) no Event
of Default or Potential Event of Default is continuing
or would occur as a result of the making of such Term B
Advance and (b) the Repeated Representations are true
(before and immediately after the making of such Term
Advance) by reference to the facts and circumstances
then existing and (c) the Agent has confirmed to the
Parent and the Banks that it has received all of the
documents and other evidence listed in Schedule 3 Part
II (Conditions Precedent) and that each is, in form and
substance, satisfactory to the Agent (save in respect of
a drawdown to be made under this sub-clause 3.2.1 for
the purpose of financing the Warehouse Acquisition
Cost).
3.2.2 No later than eight days prior to the purchase date of a
Permitted Acquisition in relation to which the Total
Consideration is to be funded entirely from Available Cash, the
Agent shall receive the materials set out in sub-clause 3.2.3 as
it would have received had such Permitted Acquisition be funded
up to fifty per cent. from a Term B Advance. If the utilisation
conditions in sub-clause 3.2.1 are fulfilled, a Notice of
Drawdown may be delivered to the Agent in respect of a Term B
Advance in an amount up to fifty per cent. of the Total
Consideration of a Permitted Acquisition funded initially
entirely from Available Cash. Such drawndown Term B Advance
shall be credited to the Capital Expenditure Account.
3.2.3 Each Notice of Drawdown delivered to the Agent requesting a Term
B Advance must be accompanied by:
(a) a certificate properly completed, authorised and
executed by the Parent confirming:
(i) that the proceeds of such Term B Advance are to
be applied in the payment of up to fifty per
cent. of the Total Consideration payable in
relation to a Permitted Acquisition, that the
balance of such Permitted Acquisitions has been
funded out of the Available Cash;
(ii) no Event of Default, and no breach of a repeated
representation is likely to arise on and
following the purchase date as a result of the
completion of the relevant Permitted Acquisition
part of which is to be paid out of the proceeds
of the relevant Term B Advance;
(iii) (save in respect of such Term B Advance to be
drawndown for the purpose of financing the
Warehouse Acquisition Cost) that the Acquisition
Feasibility Memorandum is prepared in accordance
with the Acquisition Policy and to the extent
that it materially
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deviates from the Acquisition Policy, a
commentary from the Board in respect of such
deviation.
(b) (save in respect of such Term B Advance to be drawndown
for the purpose of financing the Warehouse Acquisition
Cost) the Acquisition Feasibility Memorandum, the
Framework Acquisition Agreement and the Acquisition
Agreement in relation to each Permitted Acquisition. In
the event that the terms of a proposed acquisition
deviates from the Acquisition Feasibility Memorandum,
the Borrower and the Initial Investor must be made
available to the Lenders to answer questions regarding
such proposed acquisition and the Acquisition
Feasibility Memorandum;
(c) (save in respect of such Term B Advance to be drawndown
for the purpose of financing the Warehouse Acquisition
Cost) the Budget (approved by the board of directors of
the Parent) relating to such Relevant Business and
Acquisition Working Capital together with such analysis
(as the Agent may from time to time reasonably require)
of the investment return projected in relation to such
Permitted Acquisition;
(d) (save in respect of such Term B Advance to be drawndown
for the purpose of financing the Warehouse Acquisition
Cost) the Revised Financial Projections in relation to a
Permitted Acquisition; and
(e) (save in respect of such Term B Advance to be drawndown
for the purpose of financing the Warehouse Acquisition
Cost) the financial statements for the period of twelve
(12) months ending on the last day of the month
immediately preceding the proposed purchase date of a
Permitted Acquisition or Permitted Equity Funded
Acquisition audited or reviewed by an accounting firm
acceptable to the Banks of the Relevant Business
including any pro forma adjustments at the start of the
twelve month period ending on the next Quarter Date
falling after the purchase date of a Permitted
Acquisition.
3.2.4 To the extent that any drawndown Term B Advance to be applied in
the payment of up to fifty per cent. of the Total Consideration
payable in relation to a Permitted Acquisition (in compliance
with Clause 3.2.3) is greater than the gross payment to the
vendors element of the definition of Total Consideration, such
surplus amount will be paid into the Capital Expenditure Account
to be applied by the Borrower to fund the Total Consideration in
relation to such Permitted Acquisition.
3.2.5 The Parent hereby agrees that:-
(a) none of the proceeds of Term B Advances may be used for
any purpose other than the finance of up to fifty per
cent. from time to time of
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Permitted Acquisitions and none of the Available Cash
may be used for any purpose other than the finance of
the Total Consideration; and
(b) Available Cash may only be withdrawn from the
Acquisition Expenditure Account to finance the Total
Consideration in relation to Permitted Acquisitions and
to finance the Warehouse Acquisition Cost.
3.3 EACH BANK'S PARTICIPATION IN TERM ADVANCES
Each Bank will participate through its Facility Office in each Term
Advance made in the proportion borne by its relevant Available Term
Commitment to the relevant Available Term Facility immediately prior to
the making of that Term Advance.
3.4 REDUCTION OF AVAILABLE TERM COMMITMENT
If a Bank's relevant Available Term Commitment is reduced in accordance
with the terms hereof after the Agent has received the Notice of
Drawdown for a Term Advance pursuant to this Clause 3 and such reduction
was not taken into account in calculating the relevant Available Term
Facility, then both the Original Sterling Amount and the amount of that
Term Advance shall be reduced accordingly.
4. INTEREST PERIODS FOR TERM ADVANCES
4.1 INTEREST PERIODS
The period for which a Term Advance is outstanding shall be divided into
successive periods each of which (other than the first, which shall
begin on the day such Term Advance is made) shall start on the last day
of the preceding such period.
4.2 DURATION
Until the earlier of six months after the date hereof and the
Syndication Date, the duration of each Interest Period shall be one
month. Thereafter, the duration of each Interest Period shall, save as
otherwise provided herein, be one, three or six months (or such other
period as may be agreed between the Parent and the Banks), in each case
as the Borrower to which such Term Advance is made (or the Parent) may
by no later than 10.00 a.m. three Business Days' prior notice to the
Agent select, or such other period as the Banks agree PROVIDED THAT:
4.2.1 if such Borrower fails to give such notice of its selection in
relation to an Interest Period, the duration of that Interest
Period shall, subject to sub-clauses 4.2.2, 4.2.3 and 4.2.3, be
three months;
4.2.2 any Interest Period which begins during or at the same time as
any other Interest Period and made under the same Term Facility
shall end at the same time as that other Interest Period;
4.2.3 to the extent necessary to ensure at any time Advances (in an
aggregate amount not less than the amount of the next scheduled
repayment of principal hereunder) have Interest Periods expiring
on the relevant scheduled Term Repayment Date or Final Maturity
Date, any Interest Period which would otherwise end during the
month preceding, or extend beyond, a Term
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Repayment Date or Final Maturity Date shall be of such duration
that it shall end on that Term Repayment Date or Final Maturity
Date.
4.3 CONSOLIDATION OF TERM ADVANCES
If two or more Interest Periods relating to Term Advances denominated in
the same currency end at the same time, then, on the last day of those
Interest Periods, the Term Advances to which they relate shall be
consolidated into and treated as a single Term Advance.
4.4 DIVISION OF TERM ADVANCES
The Borrower to which a Term Advance is made may, by no later than 10.00
a.m. three Business Days' prior notice to the Agent direct that such
Term Advance shall, at the beginning of any Interest Period relating
thereto, be divided into (and thereafter, save as otherwise provided
herein, treated in all respects as) two or more Term Advances having
such Original Sterling Amounts (in aggregate, equalling the Sterling
Amount of the Term Advance being so divided) as shall be specified by
such Borrower in such notice, PROVIDED THAT such Borrower shall not be
entitled to make such a direction if:
4.4.1 as a result of so doing, there would be more than six
outstanding Term Advances; or
4.4.2 any Term Advance thereby coming into existence would have a
Sterling Amount of less than (pounds sterling)10,000,000.
5. PAYMENT AND CALCULATION OF INTEREST ON TERM ADVANCES
5.1 PAYMENT OF INTEREST
On the last day of each Interest Period relating to a Term Advance (and,
if the Interest Period of such Term Advance exceeds six months, on the
expiry of each period of six months during that Interest Period) the
Borrower to which such Term Advance has been made shall pay accrued
interest on the Term Advance to which such Interest Period relates.
5.2 CALCULATION OF INTEREST
The rate of interest applicable to a Term Advance from time to time
during an Interest Period relating thereto shall be the rate per annum
which is the sum of the Margin at such time, the Associated Costs Rate
(if any) in respect thereof at such time and LIBOR on the Quotation Date
therefor. In relation to the first Interest Period of any Term Advance
made on the date hereof, LIBOR for such Term Advance for such Interest
Period shall be determined in accordance with paragraph (b) of the
definition of LIBOR.
5.3 TERM MARGIN RATCHET
5.3.1 Subject to sub-clause 5.3.3, if the ratio of Total Debt to
EBITDA in respect of the most recent Relevant Period (as defined
in Clause 22 (Financial Condition) is within the range set out
in column 1 of the margin grid table set out below, then the
Applicable A Margin shall be the percentage per annum set out
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opposite such range PROVIDED THAT from the date hereof until the
date falling 12 months after the date thereafter, the Applicable
A Margin shall be not less than 2.00% per annum.
MARGIN GRID TABLE
COLUMN 1 COLUMN 2
TOTAL DEBT TO EBITDA APPLICABLE A MARGIN
%
Less than 3.0:1 but greater than or 1.75
equal to 2.0:1
Less than 2.0:1 but greater than or 1.50
equal to 1.5:1
Less than 1.5:1 1.25
5.3.2 Any reduction or increase to the Applicable A Margin provided
for in sub-clause 5.3.1 shall take effect only in relation to
any Advance made or Interest Period commencing at least 15
Business Days after receipt by the Agent for the Relevant Period
of both (a) (in the case of a Relevant Period ending on the last
day of the Parent's financial year) the annual audited financial
statements of the Group in accordance with Clause 20.1 (Annual
Statements) or (in the case of a Relevant Period ending on the
last day of any other Financial Quarter of the Parent) quarterly
financial statements of the Group in accordance with Clause 20.2
(Quarterly Statements) for such Relevant Period and (b), in each
case, a Compliance Certificate for such Relevant Period pursuant
to Clause 20.7 (Compliance Certificates).
5.3.3 If at any time an Event of Default is continuing the Applicable
A Margin shall be 3.00% per annum.
5.3.4 The change to the Applicable A Margin set out in sub-clause
5.3.3 shall apply from the date certified by the Agent (in
writing) as the date on which an Event of Default has occurred
or come into existence until the date certified by the Agent (in
writing) as the date by which such Event of Default is no longer
continuing. The Agent shall give such certification promptly on
reasonably determining that an Event of Default has occurred or
exists and promptly upon it becoming reasonably apparent that
such Event of Default is no longer continuing.
6. UTILISATION OF THE REVOLVING FACILITY
6.1 UTILISATION CONDITIONS FOR THE REVOLVING FACILITY
Save as otherwise provided herein, a Revolving Advance will be made by
the Banks to the Borrower if:
6.1.1 not later than 11.00 a.m. one Business Day before the proposed
Utilisation Date, the Agent has received a completed Notice of
Drawdown from the
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Borrower stating whether the utilisation is to be made by way of
Revolving Advance;
6.1.2 the proposed Utilisation Date is a Business Day falling one
month or more before the Revolving Termination Date;
6.1.3 the proposed date for such utilisation is not less than two
Business Days after the date upon which the Revolving Facility
was previously utilised;
6.1.4 the proposed Original Sterling Amount of such Revolving Advance
is (a) (if less than the Available Revolving Facility) an amount
not less than (pounds sterling)500,000 and an integral multiple
of (pounds sterling)100,000 or (b) equal to the amount of the
Available Revolving Facility;
6.1.5 the proposed Term of the Revolving Advance requested is a period
of one, three or six months or such other period as the Banks
agree in each case ending on or before the Revolving Termination
Date;
6.1.6 in respect of an Advance other than a Rollover Advance neither
of the events mentioned in sub-clauses 8.1.1 and 8.1.2 of Clause
8.1 (Market Disruption) shall have occurred;
6.1.7 there would not, immediately after the making of such Revolving
Advance, be more than nine Revolving Advances outstanding; and
6.1.8 on and as of the proposed Utilisation Date:
(a) no Event of Default or (save in relation to a Rollover
Advance) Potential Event of Default is continuing
PROVIDED THAT in the case of a Potential Event of
Default:
(i) such Potential Event of Default shall not be
capable of continuing for more than thirty days
from the date of the Notice of Drawdown with
respect to a particular event or circumstance;
and
(ii) the Borrower may not deliver a further Notice of
Drawdown until the earlier of (a) the expiry of
such thirty day period and (b) the date on which
the Potential event of Default ceases to be
continuing.
If a further Potential Event of Default has occurred and
is continuing at the time of delivery of a further
Notice of Drawdown, the Banks may rely upon such further
Potential Event of Default for the purposes of this
Clause 6.1.8 and the provisions of sub-paragraphs (i)
and (ii) above shall apply to such further Potential
Event of Default;
(b) the Repeated Representations are true (before and
immediately after the making of such Revolving Advance)
by reference to the facts and circumstances then
subsisting; and
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(c) (in the case of an Advance proposed to be made on the
date hereof) the Agent has confirmed to the Parent and
the Banks that it has received all of the documents and
other evidence listed in Schedule 3 Part I (Conditions
Precedent) and that each is, in form and substance,
satisfactory to the Agent,
then, save as otherwise provided herein, such Revolving
Advance will be made.
6.2 REDUCTION OF AVAILABLE REVOLVING COMMITMENT
If a Bank's Revolving Commitment is reduced in accordance with the terms
hereof after the Agent has received the Notice of Drawdown for a
Revolving Advance then both the Original Sterling Amount and the amount
of that Revolving Advance be reduced accordingly.
7. PAYMENT AND CALCULATION OF INTEREST ON REVOLVING ADVANCES
7.1 PAYMENT OF INTEREST
On the Repayment Date relating to each Revolving Advance (and, if the
Term of such Revolving Advance exceeds six months, on the expiry of each
period of six months during such Term) the Borrower shall pay accrued
interest on that Revolving Advance.
7.2 CALCULATION OF INTEREST
The rate of interest applicable to a Revolving Advance from time to time
during its Term shall be the rate per annum which is the sum of the
Margin at such time, the Associated Costs Rate in respect thereof at
such time and LIBOR on the Quotation Date therefor. In relation to the
Term of any Revolving Advance made on the date hereof, LIBOR for such
Revolving Advance for such Term shall be determined in accordance with
paragraph (b) of the definition of LIBOR.
7.3 REVOLVING MARGIN RATCHET
7.3.1 Subject to sub-clause 7.3.3, if the ratio of Total Debt to
EBITDA in respect of the most recent Relevant Period is within
the range set out in column 1 of the margin grid table set out
below, then the Applicable Revolving Margin shall be the
percentage per annum set out opposite such range PROVIDED THAT
from the date hereof until the date falling twelve months after
the date thereafter, the Applicable Revolving Margin shall be
not less than 2.00 % per annum.
MARGIN GRID TABLE
COLUMN 1 COLUMN 2
TOTAL NET DEBT TO EBITDA APPLICABLE REVOLVING MARGIN %
Less than 3.0.:1 but greater 1.75%
than or equal to 2.01:1
Less than 2.0:1 but greater 1.50
than or equal to 1.5:1
Less than 1.5:1 1.25
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7.3.2 Any reduction or increase to the Revolving Margin provided for
in sub-clause 7.3.1 shall take effect only in relation to any
Revolving Advance made at least 15 Business Days after receipt
by the Agent for the Relevant Period of both (a) (in the case of
a Relevant Period ending on the last day of the Parent's
financial year) the annual audited financial statements of the
Group in accordance with Clause 20.1 (Annual Statements) or (in
the case of the Relevant Period ending on the last day of any
other Financial Quarter of the Parent) quarterly financial
statements of the Group in accordance with Clause 20.2
(Quarterly Statements) for such Relevant Period and (b), in each
case, a Compliance Certificate for such Relevant Period pursuant
to Clause 20.7 (Compliance Certificates).
7.3.3 If at any time an Event of Default is continuing the Applicable
Revolving Margin shall be 3.00% per annum.
7.3.4 The change to the Applicable Revolving Margin set out in
sub-clause 7.3.3 shall apply from the date certified by the
Agent (in writing) as the date on which an Event of Default has
occurred or come into existence until the date certified by the
Agent (in writing) as the date by which such Event of Default is
no longer continuing. The Agent shall give such certification
promptly upon reasonably determining that an Event of Default
has occurred or exists and promptly upon becoming aware it
becoming reasonably apparent that such Event of Default is no
longer continuing.
8. MARKET DISRUPTION AND ALTERNATIVE INTEREST RATES
8.1 MARKET DISRUPTION
If, in relation to any Advance or Unpaid Sum:
8.1.1 LIBOR is to be determined by reference to Reference Banks and at
or about 11.00 a.m. on the Quotation Date for the relevant
Interest Period or Term none or only one of the Reference Banks
supplies a rate for the purpose of determining LIBOR, for the
relevant Interest Period or Term; or
8.1.2 before the close of business in London on the Quotation Date for
such Advance or Unpaid Sum the Agent has been notified by a Bank
or each of a group of Banks to whom in aggregate thirty-five per
cent. or more of such Advance or Unpaid Sum is owed (or, in the
case of an undrawn Advance, if made, would be owed) that the
LIBOR rate does not accurately reflect the cost of funding its
participation in such Advance or Unpaid Sum,
then, the Agent shall notify the Parent, the relevant Borrower and the
Banks of such event and, notwithstanding anything to the contrary in
this Agreement, Clause 8.2 (Substitute Interest Period and Interest
Rate) shall apply to such Advance (if it is a Term Advance which is
already outstanding or a Rollover Advance) or Unpaid Sum. If sub-clause
8.1.1 or 8.1.2 of Clause 8.1 (Market Disruption) applies to a proposed
Advance (other than a Rollover Advance), such Advance shall not be made.
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8.2 SUBSTITUTE INTEREST PERIOD AND INTEREST RATE
If sub-clause 8.1.1 of Clause 8.1 (Market Disruption) applies to an
Advance, the duration of the relevant Interest Period or Term shall be
one month, or less, such that it shall end on the next succeeding
Repayment Date (in the case of a Term Advance) or the Revolving
Termination Date (in the case of a Rollover Advance). If either
sub-clause 8.1.1 or 8.1.2 of Clause 8.1 (Market Disruption) applies to
an Advance or Unpaid Sum, the rate of interest applicable to such
Advance or Unpaid Sum during the relevant Interest Period or Term shall
(subject to any agreement reached pursuant to Clause 8.3 (Alternative
Rate)) be the rate per annum which is the sum of:
8.2.1 the Margin at such time;
8.2.2 the Associated Costs Rate in respect thereof at such time; and
8.2.3 the rate per annum notified to the Agent by each Bank before the
last day of such Interest Period or Term to be that which
expresses as a percentage rate per annum the cost to such Bank
of funding from sources it reasonably selects its portion of
such Advance or Unpaid Sum during such Interest Period or Term.
8.3 ALTERNATIVE RATE
If:
8.3.1 either of those events mentioned in sub-clauses 8.1.1 and 8.1.2
of Clause 8.1 (Market Disruption) occurs in relation to an
Advance or Unpaid Sum; or
8.3.2 by reason of circumstances affecting the London Interbank Market
during any period of three consecutive Business Days LIBOR is
not available for Sterling to prime banks in the London
Interbank Market,
then, in any such case, if the Agent or the Parent so requires, the
Agent and the Parent shall enter into negotiations in good faith with a
view to agreeing an alternative basis:
(a) for determining the rates of interest from time to time
applicable to the Advances and Unpaid Sums; and/or
(b) upon which the Advances and Unpaid Sums may be maintained
thereafter,
and any such alternative basis that is agreed shall take effect in
accordance with its terms and be binding on each party hereto, PROVIDED
THAT the Agent may not agree any such alternative basis without the
prior consent of each Bank.
9. NOTIFICATION
9.1 ADVANCES
Not later than 11.00 a.m. three Business Days before the first day of an
Interest Period or Term (or, in the case of any utilisation being made
on the date hereof, not later than 11.30 a.m. on the date hereof), the
Agent shall notify each Bank of the Facility that is to be utilised, the
name of the Borrower, the proposed Sterling Amount of the relevant
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Advance, the proposed length of the relevant Interest Period or Term and
the aggregate principal amount of the relevant Advance allocated to such
Bank pursuant to this Agreement, the name of the proposed beneficiary.
9.2 INTEREST RATE DETERMINATION
The Agent shall promptly notify the relevant Borrower and the Banks of
each determination of LIBOR, Margin and the Associated Costs Rate.
9.3 CHANGES TO ADVANCES OR INTEREST RATES
The Agent shall promptly notify the relevant Borrower and the Banks of
any change to:
9.3.1 the proposed length of an Interest Period or Term; or
9.3.2 any interest rate;
in each case occasioned by the operation of Clause 8 (Market Disruption
and Alternative Interest Rates).
10. REPAYMENT OF THE TERM FACILITY
10.1 TERM REPAYMENT INSTALMENTS
10.1.1 Term A Repayment Instalments: The Parent shall procure (and the
Borrower which has drawn a Term A Advance shall repay the Term A
Outstandings in order to ensure) that the aggregate Sterling
Amount of the Term A Outstandings is repaid in instalments in
the amount and on the Term A Repayment Date set out in the table
below:
TERM A REPAYMENT DATE REPAYMENT INSTALMENTS
(pounds sterling)
30 July 2000 1,400,000
31 December 2000 1,400,000
30 June 2001 1,400,000
31 December 2001 1,400,000
30 June 2002 2,100,000
31 December 2002 2,100,000
30 June 2003 2,100,000
31 December 2003 2,100,000
30 June 2004 3,500,000
31 December 2004 3,500,000
30 June 2005 3,500,000
Final Maturity Date 3,500,000
Term B Repayment Instalments: The Parent shall procure (and the
Borrower which has drawn a Term B Advance shall repay its share
of the Term B Outstandings in order to ensure) that the Sterling
Amount of the Term B Outstandings is repaid in instalments on
each Term B Repayment Date in an amount equal to the percentage
of the aggregate principal amount advanced on
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the last day of the Term B Availability Period in respect of the
Term B Facility relating to such Term B Repayment Date as set
out in the table below:
TERM B REPAYMENT DATE REPAYMENT INSTALMENTS
%
31 December 2003 20%
31 December 2004 20%
31 December 2005 30%
Final Maturity Date 30%
10.2 SELECTION OF TERM ADVANCES
If, in relation to a Term Repayment Date, the aggregate amount of the
relevant Term Advances exceeds the amount of the relevant Term
Outstandings to be repaid, the Parent may, by not less than five
Business Days' prior notice to the Agent, select which of those Term
Advances will be wholly or partially repaid, PROVIDED THAT:
10.2.1 the Parent may not make any such selection if, as a result, more
than one such Term Advance would fall to be partially repaid;
and
10.2.2 if the Parent fails to give such notice, the Agent shall select
the relevant Term Advances to be wholly or partially repaid.
11. REPAYMENT OF THE REVOLVING FACILITY
11.1 The Borrower shall repay each Revolving Advance made to it in full on
the Repayment Date relating thereto. All Revolving Outstandings shall be
repaid on or before the Final Maturity Date by the Borrower.
11.2 REVOLVING FACILITY CLEAN DOWN
The Borrower will procure that the principal amount outstanding in
respect of all Advances of the Revolving Facility is no more than thirty
(30) per cent. of the Revolving Facility for a period of at least
fourteen (14) consecutive days in each twelve (12) month period falling
after twelve (12) months from the date hereof (the "CLEANING DOWN
PERIOD") with at least thirty (30) days falling between each Clean Down
Period.
12. MANDATORY PREPAYMENT
12.1 MANDATORY PREPAYMENT ON DISPOSAL
Subject to Clause 12.6 (Prepayment Accounts), the Parent shall procure
the application of an amount equal to the Net Disposal Proceeds in
respect of any disposal of any assets of the Group in repayment of the
Facilities in accordance with Clause 12.5 (Application of Prepayments)
promptly upon receipt of the same by any Group member.
The Parent will procure that any amounts which are retained for
reinvestments as envisaged by paragraph (b) of the definition of
Excluded Proceeds and paragraph (f) of the definition of Permitted
Disposals will be paid into the Holding Account promptly upon receipt of
the same.
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12.2 AMCARE DISPOSAL
The Group may, on approval by the Agent (acting on the instructions of
the Instructing Group), dispose of Amcare Limited (the "AMCARE
DISPOSAL"). So long as the Amcare Disposal occurs within twelve (12)
months of the date hereof, the Parent shall ensure that the application
of an amount equal to the Net Disposal Proceeds of such disposal (the
"AMCARE DISPOSAL PROCEEDS") shall be credited to the Holding Account
and, within six (6) months of such Amcare Disposal, the Amcare Disposal
Proceeds may be withdrawn from the Holding Account by the Original
Borrower from time to time to fund the whole of the Total Consideration
for one or more Permitted Acquisitions subject to clause 23.22 (Total
Permitted Acquisitions). For the avoidance of doubt Clauses 12.1
(Mandatory Prepayment on Disposal) and 12.5 (Application of Prepayments)
shall not apply to the Amcare Disposal Proceeds during such six (6)
month period from making the Amcare Disposal and if the Amcare Disposal
occurs after the date falling twelve (12) months after the date hereof,
the Amcare Disposal Proceeds shall be applied in accordance with Clause
12.1 (Mandatory Prepayment on Disposal).
12.3 MANDATORY PREPAYMENT ON CHANGE OF CONTROL OR SALE OF BUSINESS
The Parent shall procure that the Term Outstandings and the Revolving
Outstandings are immediately prepaid in full upon the occurrence of:
12.3.1 any Change of Control; or
12.3.2 Hyperion ceasing to have beneficial ownership of at least 50.1%
in TW US; or
12.3.3 the Initial Investor disposing of any Warrants or Senior
Subordinated Notes; or
12.3.4 any Flotation of any of the shares of any member of the Group or
any holding company of the Parent; or
12.3.5 a Strategic Sale.
12.4 MANDATORY PREPAYMENT OF EXCESS CASH FLOW
The Parent shall procure that, within ten Business Days of the
delivering to the Agent of aggregated and consolidated audited Accounts
of the Group pursuant to Clause 20.1 (Annual Statement) for any annual
Accounting Period, the Term Outstandings shall be prepaid in an
aggregate amount equal to 50% (fifty per cent.) of the Excess Cash Flow
(minus (pounds sterling)1,000,000) of the Group for such Accounting
Period to which such annual consolidated accounts relate. Any such
prepayment shall be applied in accordance with Clause 12.5 (Application
of Prepayments).
12.5 APPLICATION OF PREPAYMENTS
12.5.1 Any prepayment made under Clauses 12.1 (Mandatory Prepayment on
Disposal) (subject to Clause 12.2 (Amcare Disposal)) to 12.3
(Mandatory Prepayment on Change of Control or Sale of Business)
shall be applied in repayment:
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(a) first, pro rata across the Term A Outstandings and the
Term B Outstandings; and
(b) second, to the extent the Term A Outstandings and the
Term B Outstandings have been repaid in full, in
repayment of the Revolving Outstandings (and any amounts
so repaid may not be reborrowed and the Revolving
Commitments of the Banks will be permanently reduced pro
rata to the extent of such repayment).
12.5.2 Any prepayment of Term Outstandings in respect of a Term
Facility shall be applied so that the Borrower effects a
prepayment of the Term A Outstandings or, as the case may be,
the Term B Outstandings in order to satisfy the remaining
obligations under Clause 10.1 (Term Repayment Instalments) in
respect of outstandings under that Term Facility pro rata.
12.5.3 Any prepayment (other than as mentioned in sub-clause 12.5.1) of
Term Outstandings in respect of a Term Facility shall be applied
across the Term Advances then outstanding under such Term
Facility in the manner notified by the Original Borrower to the
Agent at the time of prepayment (or, if no such notice is given,
pro rata but in any event so that any such prepayment is applied
so that each Borrower effects a prepayment pro rata to its share
of the Term A Outstandings or, as the case may be, the Term B
Outstandings).
12.5.4 The Parent shall procure that upon any requirement hereunder to
prepay the Term Outstandings in full, the Revolving Outstandings
shall also be repaid and each Banks Available Revolving
Commitment shall be immediately cancelled and reduced to zero.
12.6 PREPAYMENT ACCOUNTS
12.6.1 If Clause 12.1 (Mandatory Prepayment on Disposal) (subject to
Clause 12.2 (Amcare Disposal)) to Clause 12.3 (Mandatory
Prepayment on Change of Control or Sale of Business) inclusive
would require the Original Borrower to procure the prepayment of
any Advance hereunder otherwise than at the end of an Interest
Period or on the maturity of a Revolving Advance, the Original
Borrower can elect (by written notice to the Agent to be
received not later than 11 a.m. three Business Days prior to the
date on which the prepayment obligation would, but for this
Clause 12.6 (Prepayment Accounts) arise) to credit the amount to
be repaid to the Mandatory Prepayment Account on the date on
which the prepayment obligation would, but for this Clause 12.6
(Prepayment Accounts), arise and to prepay the relevant Term
Advance and/or Revolving Advance at the first occurring end of
an Interest Period relative to the Term Advance to be repaid or
date on which a Revolving Advance matures (where such Term
Advance or, as the case may be, Revolving Advance is at least
equal to the amount to be repaid unless the Term Outstandings
under which such Term Advance was made or the Revolving
Outstandings is less than the amount to be repaid). Following
any such election and provided the required payment is made to
the Mandatory
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Prepayment Account the obligation to prepay the relevant Term
Advance and/or Revolving Advance will not arise until the first
occurring end of an Interest Period relative to such Term
Advance to be repaid or date on which such a Revolving Advance
matures.
12.6.2 The Original Borrower hereby irrevocably authorises the Agent to
withdraw monies from the Mandatory Prepayment Account and apply
such monies against prepayments which are due to be made
hereunder or, upon the occurrence of an Event of Default which
is continuing, against any amounts due and payable under the
Finance Documents.
12.6.3 Any Bank with which such account is held acknowledges and agrees
that interest shall accrue at normal commercial rates on amounts
credited to the Mandatory Prepayment Account and the Holding
Account and that the account holder shall be entitled to receive
such interest (which shall be paid in accordance with the
mandate relating to such account) provided that the account
holder shall not be entitled to receive such interest while an
Event of Default is continuing.
13. CANCELLATION AND VOLUNTARY PREPAYMENT
13.1 CANCELLATION OF THE TERM FACILITY
The Parent may, by giving to the Agent not less than five Business Days'
prior notice to that effect, cancel the whole or any part (being an
amount of not less than (pounds sterling)1,000,000 and an integral
multiple of (pounds sterling)1,000,000) of either Available Term
Facility. Any such cancellation shall reduce the Available Term
Commitments of the Banks in respect of such Available Term Facility
rateably.
13.2 PREPAYMENT OF THE TERM OUTSTANDINGS
13.2.1 The Borrower to which a Term Advance has been made may, if it
has given to the Agent not less than five Business Days' prior
notice to that effect, prepay the whole of any Term Advance or
any part of any Term Advance (being an amount such that the
Sterling Amount of such Term Advance will be reduced by an
amount of not less than (pounds sterling)1,000,000 and an
integral multiple of (pounds sterling)1,000,000) on the last day
of any Interest Period relating to that Term Advance (or at any
other time subject to payment of the appropriate breakage costs
in accordance with Clause 28.4 (Break Costs).
13.2.2 Any prepayment of Term Outstandings in respect of a Term
Facility shall satisfy pro tanto the remaining obligations under
Clause 10.1 (Term Repayment Instalments) in respect of
outstandings under such Term Facility pro rata.
13.2.3 Any prepayment of Term Outstandings in respect of a Term
Facility shall be applied across the Term Advances then
outstanding under such Term Facility in the manner notified by
the Parent to the Agent at the time of prepayment (or, if no
such notice is given, pro rata).
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13.3 CANCELLATION OF THE REVOLVING FACILITY
The Parent may, by giving to the Agent not less than five Business Days'
prior notice to that effect, cancel the whole or any part (being an
amount of not less than (pounds sterling)500,000 and an integral
multiple of (pounds sterling)500,000) of the Available Revolving
Facility. Any such cancellation shall reduce the Available Revolving
Commitment and Revolving Commitment of each Bank rateably.
13.4 PREPAYMENT OF REVOLVING OUTSTANDINGS
The Borrower to which a Revolving Advance has been made may, by giving
to the Agent not less than five Business Days' prior notice to that
effect, prepay the whole or any part of a Revolving Advance (being an
amount such that the Sterling Amount of such Revolving Advance will be
reduced by an amount of not less than (pounds sterling)500,000 or
integral multiple of (pounds sterling)1,000,000) subject to payment of
the appropriate breakage costs in accordance with Clause 28.4 (Break
Costs).
13.5 EARLY PREPAYMENT FEE
If a voluntary prepayment or a mandatory prepayment within the terms of
Clause 12 (Mandatory Prepayment) of the whole of any part of the
Facilities is made prior to the first anniversary of the date hereof
consequent upon a refinancing implemented through the bank or debt
capital markets, the Borrower shall pay to the Agent to the account of
the Banks a fee of an amount equal to 1% (one per cent.) of the amount
of the Facilities so prepaid.
13.6 NOTICE OF CANCELLATION OR PREPAYMENT
Any notice of cancellation or prepayment given by a Borrower pursuant to
this Clause 13 (Cancellation and Voluntary Prepayment) shall be
irrevocable, shall specify the date upon which such cancellation or
prepayment is to be made and the amount of such cancellation or
prepayment and, in the case of a notice of prepayment, shall oblige the
relevant Borrower to make such prepayment on such date.
13.7 NOTICE OF REMOVAL OF A BANK
If:
13.7.1 any sum payable to any Bank by an Obligor is required to be
increased pursuant to Clause 14.1 (Tax Gross-up); or
13.7.2 any Bank claims indemnification from an Obligor under Clause
14.2 (Tax Indemnity) or Clause 16.1 (Increased Costs), the
Parent may, whilst such circumstance continues, give the Agent
at least five Business Days notice (which notice shall be
irrevocable) of its intention (a) if such circumstance relates
to a Bank to cancel and repay.
13.8 REMOVAL OF A BANK
On the day the notice referred to in Clause 13.7 (Notice of Removal of a
Bank) expires each Borrower to which an Advance has been made shall
repay (without incurring the prepayment fee payable under Clause 13.5
(Prepayment Fee) such Bank's portion of each such Advance.
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13.9 NO FURTHER AVAILABILITY
A Bank for whose account a repayment is to be made under Clause 13.8
(Removal of a Bank) shall not be obliged to participate in the making of
Advances on or after the date upon which the Agent receives the Parent's
notice of its intention to procure the repayment of such Bank's share of
the Outstandings, and such Bank's Available Term Commitment and
Available Revolving Commitment shall be reduced to zero.
13.10 NO OTHER REPAYMENTS OR CANCELLATION
The Borrowers shall not repay or cancel all or any part of the
Outstandings except at the times and in the manner expressly provided
for in this Agreement.
13.11 NO REBORROWING
None of the Borrowers shall be entitled to reborrow any amount of any
Term Facility which is repaid or to reborrow any amount of the Revolving
Facility which is repaid where such repayment permanently reduces the
Revolving Facility.
14. TAXES
14.1 TAX GROSS-UP
All payments to be made by an Obligor to any Finance Party hereunder
shall be made free and clear of and without deduction for or on account
of tax unless such Obligor is required to make such a payment subject to
the deduction or withholding of tax, in which case the sum payable by
such Obligor (in respect of which such deduction or withholding is
required to be made) shall be increased to the extent necessary to
ensure that such Finance Party receives a sum net of any withholding or
deduction equal to the sum which it would have received had no such
deduction or withholding been made or required to be made.
14.2 TAX INDEMNITY
Without prejudice to Clause 14.1 (Tax Gross-up), if any Finance Party is
required to make any payment of or on account of tax on or in relation
to any sum received or receivable hereunder (including any sum deemed
for the purposes of tax to be received or receivable by such Finance
Party whether or not actually received or receivable) or if any
liability in respect of any such payment is asserted, imposed, levied or
assessed against any Finance Party, the Parent shall, upon demand of the
Agent, promptly indemnify the Finance Party which suffers a loss or
liability as a result against such payment or liability together with
any interest, penalties, costs and expenses payable or incurred in
connection therewith, PROVIDED THAT this Clause 14.2 (Tax Indemnity)
shall not apply to:
14.2.1 any tax imposed on and calculated by reference to the net income
actually received or receivable by such Finance Party (but, for
the avoidance of doubt, not including any sum deemed for
purposes of tax to be received or receivable by such Finance
Party but not actually receivable) by the jurisdiction in which
such Finance Party is incorporated or resident for tax purposes;
or
14.2.2 any tax imposed on and calculated by reference to the net income
of the relevant Facility Office of such Finance Party actually
received or receivable
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by such Finance Party (but, for the avoidance of
doubt, not including any sum deemed for purposes of tax to be
received or receivable by such Finance party but not actually
receivable) by the jurisdiction in which such Facility Office is
located.
14.3 BANKS' TAX STATUS CONFIRMATION
Each Bank confirms in favour of the Agent (on the date hereof or, in the
case of a Bank which becomes a party hereto pursuant to a transfer or
assignment, on the date on which the relevant transfer or assignment
becomes effective) that either:
14.3.1 it is a bank as defined for the purposes of Section 349 of the
Income and Corporation Taxes Act 1988 and it is within the
charge to United Kingdom Corporation tax as respects interest
payable to it hereunder and is beneficially entitled to its
share of the Outstandings and the interest thereon; or
14.3.2 it is not resident for tax purposes in the United Kingdom and is
beneficially entitled to its share of the Outstandings and the
interest thereon,
and each Bank shall promptly notify the Agent if there is any change in
its position from that set out above.
14.4 CLAIMS BY BANKS
A Bank intending to make a claim pursuant to Clause 14.2 (Tax Indemnity)
shall notify the Agent of the event or circumstance giving rise to the
claim as soon as reasonably practicable after its relevant Facility
Office has become aware of such event or circumstance, whereupon the
Agent shall notify the Parent thereof.
14.5 EXCLUDED CLAIMS
If any Bank is not or ceases to be a Qualifying Bank, no Obligor shall
be liable to pay to that Bank under Clause 14.1 (Tax Gross-Up) any
amount in respect of taxes levied or imposed in excess of the amount it
would have been obliged to pay if that Bank had been or had not ceased
to be a Qualifying Bank PROVIDED THAT this Clause 14.5 (Excluded Claims)
shall not apply (and each Obligor shall be obliged to comply with its
obligations under Clause 14.1 (Tax Gross-Up)) if:
14.5.1 after the date hereof and after the date when such Bank first
becomes a Bank for the purposes of this Agreement, there shall
have been any introduction of, change in, or change in the
interpretation, administration or application of, any law or
regulation or order or governmental rule or treaty or any
practice or concession of any applicable tax authority and as a
result thereof such Bank ceased to be a Qualifying Bank; or
14.5.2 such Bank is not or ceases to be a Qualifying Bank as a result
of the actions of or omission to act by any Obligor.
14.6 DOUBLE TAXATION RELIEF
If, and to the extent that, the effect of Clause 14.1 (Tax Gross-Up) or
Clause 14.2 (Tax Indemnity) can be mitigated by virtue of the provisions
of any Applicable Treaty
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(whether by a claim to repayment of any taxes referred to in Clause 14.1
(Tax Gross-Up) or Clause 14.2 (Tax Indemnity) or otherwise) each Bank
agrees to co-operate with the relevant Obligor with a view to submitting
any forms required for the purpose of ensuring the application of such
double tax convention so far as relevant, PROVIDED THAT no Bank shall be
required pursuant to this Clause 14.6 (Double Taxation Relief) to
complete or co-operate in completing any form which is not substantially
similar to any form in use at the date of this Agreement for the purpose
of claiming exemption or relief from or repayment of taxes envisaged
hereunder pursuant to an Applicable Treaty between England and such
Bank's jurisdiction of residence.
15. TAX RECEIPTS
15.1 NOTIFICATION OF REQUIREMENT TO DEDUCT TAX
If, at any time, an Obligor is required by law to make any deduction or
withholding from any sum payable by it hereunder (or if thereafter there
is any change in the rates at which or the manner in which such
deductions or withholdings are calculated), such Obligor shall promptly
notify the Agent.
15.2 EVIDENCE OF PAYMENT OF TAX
If an Obligor makes any payment hereunder in respect of which it is
required to make any deduction or withholding, it shall pay the full
amount required to be deducted or withheld to the relevant taxation or
other authority within the time allowed for such payment under
applicable law and shall deliver to the Agent for such Finance Party,
within thirty days after it has made such payment to the applicable
authority, an original receipt (or a certified copy thereof) issued by
such authority evidencing the payment to such authority of all amounts
so required to be deducted or withheld in respect of that Finance
Party's share of such payment.
15.3 TAX CREDIT PAYMENT
If an additional payment is made under Clause 14 (Taxes) by an Obligor
for the benefit of any Finance Party and such Finance Party, in its sole
discretion, determines that it has obtained (and has derived full use
and benefit from) a credit against, a relief or remission for, or
repayment of, any tax, then, if and to the extent that such Finance
Party, in its sole opinion, determines that:
15.3.1 such credit, relief, remission or repayment is in respect of or
calculated with reference to the additional payment made
pursuant to Clause 14 (Taxes); and
15.3.2 its tax affairs for its tax year in respect of which such
credit, relief, remission or repayment was obtained have been
finally settled,
such Finance Party shall, to the extent that it can do so without
prejudice to the retention of the amount of such credit, relief,
remission or repayment, pay to such Obligor such amount as such Finance
Party shall, in its sole opinion, determine to be the amount which will
leave such Finance Party (after such payment) in no worse after-tax
position than it would have been in had the additional payment in
question not been required to be made by such Obligor.
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15.4 TAX CREDIT CLAWBACK
If any Finance Party makes any payment to an Obligor pursuant to Clause
15.3 (Tax Credit Payment) and such Finance Party subsequently
determines, in its sole opinion, that the credit, relief, remission or
repayment in respect of which such payment was made was not available or
has been withdrawn or that it was unable to use such credit, relief,
remission or repayment in full, such Obligor shall reimburse such
Finance Party such amount as such Finance Party determines, in its sole
opinion, is necessary to place it in the same after-tax position as it
would have been in if such credit, relief, remission or repayment had
been obtained and fully used and retained by such Finance Party.
15.5 TAX AND OTHER AFFAIRS
No provision of this Agreement shall interfere with the right of any
Finance Party to arrange its tax or any other affairs in whatever manner
it thinks fit, oblige any Finance Party to claim any credit, relief,
remission or repayment in respect of any payment under Clause 14.1 (Tax
Gross-up) in priority to any other credit, relief, remission or
repayment available to it nor oblige any Finance Party to disclose any
information relating to its tax or other affairs or any computations in
respect thereof.
16. INCREASED COSTS
16.1 INCREASED COSTS
If, by reason of (a) any change in law or in its interpretation or
administration and/or (b) compliance with any request or requirement
relating to the maintenance of capital or any other request from or
requirement of any central bank or other fiscal, monetary or other
authority (including, for the avoidance of doubt, any minimum reserve
requirements imposed by the European Central Bank) (in each case after
the date of this Agreement):
16.1.1 a Bank or any holding company of such Bank is unable to obtain
the rate of return on its capital which it would have been able
to obtain but for such Bank's entering into or assuming or
maintaining a commitment, issuing or performing its obligations
under the Finance Documents;
16.1.2 a Bank any holding company of such Bank incurs a cost as a
result of such Bank's entering into or assuming or maintaining a
commitment, issuing or performing its obligations under the
Finance Documents; or
16.1.3 there is any increase in the cost to a Bank or any holding
company of such Bank of funding or maintaining such Bank's share
of the Advances or any Unpaid Sum,
(including, without limitation, any such circumstance (other than any
such circumstance which is existing on the date hereof and is applicable
to such Bank or any holding company of such Bank on the date hereof)
which results from the introduction or changeover to the Sterling in any
Participating Member State) then the Parent shall, from time to time on
demand of the Agent, promptly pay to the Agent for the account
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of that Bank amounts sufficient to indemnify that Bank or to enable that
Bank to indemnify its holding company from and against, as the case may
be, (a) such reduction in the rate of return of capital, (b) such cost
or (c) such increased cost.
16.2 INCREASED COSTS CLAIMS
A Bank intending to make a claim pursuant to Clause 16.1 (Increased
Costs) shall notify the Agent of the event or circumstance giving rise
to such claim as soon as reasonably practicable after its relevant
Facility Office has become aware of such event or circumstance,
whereupon the Agent shall notify the Parent thereof.
16.3 EXCLUSIONS
Notwithstanding the foregoing provisions of this Clause 16 (Increased
Costs), no Bank shall be entitled to make any claim in respect of:
16.3.1 any cost, increased cost or liability as referred to in Clause
16.1 (Increased Costs) to the extent the same is compensated by
the Associated Costs Rate; or
16.3.2 any cost, increased cost or liability compensated by Clause 14
(Taxes) or which would have been compensated by Clause 14
(Taxes) if the provisions of Clause 14.5 (Excluded Claims) or
sub-clauses 14.2.1 or 14.2.2 of Clause 14.2 (Tax Indemnity) had
not applied; or
16.3.3 any cost, increased cost or liability arising by reason of a
breach by a Bank or their holding company of any law or
regulatory request.
17. ILLEGALITY
If, at any time, it is or will become unlawful for a Bank to make, fund,
issue, participate in or allow to remain outstanding all or part of its
share of the Advances, then that Bank shall, promptly after becoming
aware of the same, deliver to the Parent through the Agent a notice to
that effect and:
17.1.1 such Bank shall not thereafter be obliged to participate in any
Advance and the amount of its Available Term Commitment and
Available Revolving Commitment shall be immediately reduced to
zero; and
17.1.2 if the Agent on behalf of such Bank so requires, the Parent
shall procure that each Borrower shall either (a) as soon as
practicable and in any event within 5 days of such notice or (b)
on the date specified by such Banks through the Agent as being,
in its bona fide opinion, the last day of any applicable grace
period permitted by law repay such Bank's share of any
outstanding Advances together with accrued interest thereon and
all other amounts owing to such Bank under the Finance Documents
and any repayment of any Term Advance so made shall reduce
rateably the remaining obligations under Clause 10.1 (Term
Repayment Instalments) in respect of the outstandings under the
Term Facility under which such Term Advance was made.
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18. MITIGATION
If, in respect of any Bank, circumstances arise which would or would
upon the giving of notice result in:
18.1.1 an increase in any sum payable to it or for its account pursuant
to Clause 14.1 (Tax Gross-up);
18.1.2 a claim for indemnification pursuant to Clause 14.2 (Tax
Indemnity) or Clause 16.1 (Increased Costs);
18.1.3 the reduction of its Available Term Commitment and Available
Revolving Commitment to zero or any repayment to be made
pursuant to Clause 17 (Illegality),
then, without in any way limiting, reducing or otherwise qualifying the
rights of such Bank or the obligations of the Obligors under any of the
Clauses referred to in sub-clauses 18.1.1, 18.1.2, 18.1.3 and 18.1.3,
such Bank shall, upon request by the Parent or relevant Borrower and, in
consultation with the Agent and the Parent and to the extent that it can
do so lawfully and without prejudice to its own position, take such
steps as may be reasonable and practical in all the circumstances
(including a change of location of such Facility Office or the transfer
of its rights, benefits and obligations hereunder to another financial
institution acceptable to the Parent and willing to participate in the
Facilities) to mitigate the effects of such circumstances, PROVIDED THAT
such Bank shall be under no obligation to take any such action if, in
the opinion of such Bank, to do so might have any adverse effect upon
its business, operations or financial condition (other than any minor
costs and expenses of an administrative nature).
19. REPRESENTATIONS
Each Obligor makes the representations and warranties set out in Clause
19.1 (Status) to Clause 19.33 (Financial Model and Financial
Projections) to the Finance Parties on its own behalf and, in addition,
the Parent makes the representations set out therein to the Finance
Parties on behalf of each member of the Group, in each case save as
specifically disclosed in the Disclosure Letter. The Original Obligors
acknowledge that the Finance Parties have entered into this Agreement in
reliance on those representations and warranties. The representations
and warranties in Clause 19.16 (Information Memorandum) shall only be
made on the dates specified in Clause 19.36 (Repetition of
Representations).
19.1 STATUS
It is a corporation duly organised and validly existing under the laws
of its jurisdiction of incorporation and is a limited liability
corporation and has the power and all necessary governmental and other
material consents, approvals, licences and authorisations under any
applicable jurisdiction to own its property and assets and to carry on
its business as currently conducted.
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19.2 BINDING OBLIGATIONS
The obligations expressed to be assumed by it in the Finance Documents
are legal and valid obligations binding on it and enforceable against it
in accordance with the terms thereof, subject to the Legal Reservations.
19.3 EXECUTION AND POWER
In relation to the Finance Documents, its execution of the Finance
Documents to which it is be a party and its exercise of its rights and
performance of its obligations thereunder and the transactions
contemplated thereby (including, without limit, borrowing thereunder and
granting any security or guarantees contemplated thereunder) do not:
19.3.1 conflict with any agreement, mortgage, bond or other instrument
or treaty to which it is a party or which is binding upon it or
any of its assets; or
19.3.2 conflict with its constitutive documents; or
19.3.3 conflict with any applicable law or any applicable official or
judicial regulation or order.
It has the power to enter into and perform its obligations under the
Finance Documents to which it is a party and all corporate and other
action required to authorise the execution, delivery and performance of
the Finance Documents to which it will be a party and the transactions
contemplated therein has been duly taken. No limit on its powers will be
exceeded as a result of the borrowings, granting of security or giving
of guarantees contemplated by the Finance Documents to which it is a
party.
19.4 NO MATERIAL PROCEEDINGS
19.4.1 No action or administrative proceeding of or before any court,
arbitrator or agency (including, but not limited to,
investigative proceedings) which could reasonably be expected to
have a Material Adverse Effect has been started or (to the best
of its knowledge or belief) threatened against it or its assets,
nor are there any circumstances likely to give rise to any such
action or proceedings.
19.4.2 It is not aware of any other event or circumstance which could
reasonably be expected to have a Material Adverse Effect.
19.5 FINANCIAL STATEMENTS
19.5.1 Its most recent audited financial statements delivered to the
Agent pursuant to Clause 20.1 (Annual Statements) (consolidated
in the case of the Parent):
(a) were prepared in accordance with UK GAAP and
consistently applied and comply with Clause 20.9
(Accounting Policies);
(b) disclose all liabilities (contingent or otherwise) and
all unrealised or anticipated losses of such Obligor or,
as the case may be, any member of the Group to the
extent required by the applicable accounting principles
referred to in Clause 20.9 (Accounting Policies); and
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(c) give a true and fair view of (in the case of audited
financial statements) or fairly present in all material
respects (in the case of unaudited financial statements)
the financial condition and the results of the
operations of such Obligor or, as the case may be, the
Group during the relevant period.
19.5.2 Its financial year end and, in the case of the Parent, the
financial year end of the Group is 30 September.
19.6 NO MATERIAL ADVERSE CHANGE
Since 16 December 1999 (being the date as at which the Accountants
Report was prepared), there has been no change in the assets, property,
business, financial condition, or results of the Group taken as a whole
which could reasonably be expected to have a Material Adverse Effect.
19.7 VALIDITY AND ADMISSIBILITY IN EVIDENCE
All acts, conditions and things required to be done, fulfilled and
performed in order:
19.7.1 to enable it lawfully to enter into, exercise its rights under
and perform and comply with the obligations expressed to be
assumed by it in the Finance Documents;
19.7.2 to ensure that the obligations expressed to be assumed by it in
the Finance Documents are legal, valid, binding and enforceable;
and
19.7.3 to make the Finance Documents admissible in evidence in its
jurisdiction of incorporation,
have been done, fulfilled and performed subject to any Legal
Reservations.
19.8 CLAIMS PARI PASSU
Under the laws of its jurisdiction of incorporation in force at the date
hereof, the claims of the Finance Parties against it under the Finance
Documents will rank to the extent that they are secured pursuant to a
Security Document, prior to and otherwise at least pari passu with the
claims of all its other unsecured and unsubordinated creditors save
those whose claims are preferred solely by any bankruptcy, insolvency,
liquidation or other similar laws of general application.
19.9 NO FILING OR STAMP TAXES
Under the laws of its jurisdiction of incorporation in force at the date
hereof, it is not necessary that the Finance Documents be filed,
recorded or enrolled with any court or other authority in such
jurisdiction or that any stamp, registration or similar tax be paid on
or in relation to the Finance Documents save for any filing or recording
of or tax payable in connection with any Security Document which is
referred to in the Legal Opinions and which will be effected or paid
promptly after the date hereof. For the purposes of this Clause 19.9 a
Transfer Certificate shall not be a Finance Document.
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19.10 NO IMMUNITY
In any proceedings taken in its jurisdiction of incorporation in
relation to the Finance Documents, it will not be entitled to claim for
itself or any of its assets immunity from suit, execution, attachment or
other legal process.
19.11 REPORTS
The Reports have been prepared after due and careful consideration and
the Parent (and its executive directors), having made all reasonable
enquiries in the circumstances:
19.11.1 is not aware of any material inaccuracy as to factual matters
relating to the Business contained in the Reports which render
the Reports misleading in any material respect;
19.11.2 does not (as at the date hereof) regard as unreasonable or
unattainable any of the forecasts or projections set out in any
of the Reports;
19.11.3 believes (having made all reasonable enquiries) the assumptions
upon which the forecasts and projections in relation to the
Business contained in the Reports are based to be fair and
reasonable; and
19.11.4 is not aware of any facts or matters not stated in the Reports,
the omission of which make any statements contained therein
misleading in any material respect;
19.11.5 has made full disclosure of all material facts known to it
(having made all reasonable enquiries) to all the persons
responsible for the preparing of Reports in relation to the
Parent and the Group where failure to disclose such facts could
be reasonably likely to render the Reports misleading in any
material respect; and
19.11.6 consider that the Accountants Report fairly presented in all
material respects the financial condition and the results of the
operations of the Business during the periods referred to
therein.
19.12 GROUP STRUCTURE
19.12.1 The Group Structure Chart delivered to the Agent pursuant to
Schedule 3 (Conditions Precedent) is true, complete and
accurate.
19.12.2 All necessary inter-company loans, transfers, share exchanges
and other steps resulting in the final Group structure set out
in the Group Structure Chart have been taken in compliance in
all material respects with all relevant laws and regulations and
all requirements of relevant regulatory authorities.
19.13 NO INSOLVENCY PROCEEDINGS
No Material Subsidiary has taken any corporate action nor have any other
steps been taken or insolvency proceedings been started or (to the best
of its knowledge and belief having made all reasonable enquiry)
threatened against any Material Subsidiary (whether by voluntary
arrangement, scheme of arrangement or otherwise save for any
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solvent reorganisation previously approved by an Instructing Group in
writing, such approval not to be unreasonably withheld) or for the
enforcement of an Encumbrance over all or any of its revenues or assets
or for the appointment of a receiver, administrator, administrative
receiver, conservator, custodian, trustee, or similar officer of it or
of any or all of its assets or revenues.
19.14 NO MATERIAL DEFAULTS
No member of the Group:
19.14.1 is in breach of or in default under any agreement to which it is
a party or which is binding on it or any of its assets to an
extent or in a manner which could reasonably be expected to have
a Material Adverse Effect; or
19.14.2 is or is likely to be in breach of or in default under any
agreement to which it is party or which is binding on it or any
of its assets as a result of entering into and performing its
obligations under the Finance Documents to an extent or in a
manner which could reasonably be expected to have a Material
Adverse Effect.
19.15 INFORMATION
19.15.1 All of the written information (taken as a whole) supplied by
the Parent, any Obligor and any advisers of the Parent and/or
any Obligor to the Agent and/or the Banks and/or their advisers
in connection with the Finance Documents and/or a Permitted
Acquisition or Permitted Equity Funded Acquisition is true,
complete and accurate in all material respects as at the date
such information was supplied and is not misleading in any
material respect.
19.15.2 The forecasts and projections contained in the Business Plan and
TW US Strategy Paper were made in good faith and based on
opinions and assumptions which its directors believe were
reasonable to hold and reasonable to make at the time of supply.
19.15.3 The Parent has not knowingly failed to disclose to the Agent any
material facts or circumstances which would be reasonably
likely, if disclosed, to adversely affect the decision of a
person considering whether or not to provide finance to the
Borrowers.
19.16 INFORMATION MEMORANDUM
The factual information contained in the Information Memorandum is true,
complete and accurate in all material respects, the financial
projections contained therein have been prepared in good faith on the
basis of recent historical information and on the basis of fair and
reasonable assumptions and after careful consideration, all material
statements of opinion/intention and expectation were made in good faith
and after careful consideration and nothing has occurred or been omitted
that renders the information contained in the Information Memorandum
inaccurate or misleading in any material respect.
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19.17 ENVIRONMENTAL COMPLIANCE
Each member of the Group has duly performed and observed in all material
respects all Environmental Law, Environmental Permits and all other
material covenants, 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 could reasonably be
expected to have a Material Adverse Effect.
19.18 ENVIRONMENTAL CLAIMS
No Environmental Claim has been commenced or (to the best of the
Parent's knowledge and belief) is threatened against any member of the
Group where such claim could be reasonably be expected, if determined
against such member of the Group, to have a Material Adverse Effect.
19.19 ENCUMBRANCES AND FINANCIAL INDEBTEDNESS
19.19.1 Save for Permitted Encumbrances, no Encumbrance exists over all
or any of the present or future revenues, assets or undertakings
of any member of the Group.
19.19.2 Save for Permitted Indebtedness, it has no Financial
Indebtedness.
19.19.3 The execution of the Finance Documents to which it is a party
and the exercise by it of its rights thereunder will not result
in the existence or imposition of nor oblige any Group member to
create any Encumbrance (save for Permitted Encumbrances) in
favour of any person over any of its present or future revenues,
assets or undertakings.
19.20 CONTROL OF THE PARENT
The Trustee for and on behalf of the beneficiaries named therein (as
defined in the Voting Trust Agreement) has and will have control of the
Parent.
19.21 PARENT AND ORIGINAL BORROWER
The Parent and the Original Borrower are and will be holding companies
and do not and will not carry on any other business save as permitted
pursuant to Clause 23.35 (The Parent) and Clause 23.36 (The Original
Borrower).
19.22 NO EVENT OF DEFAULT
No Event of Default or Potential Event of Default has occurred which is
continuing save for any Event of Default or Potential Event of Default
notified to the Agent pursuant to Clause 23.4 (Notification of Events of
Default).
19.23 CONSENTS AND APPROVALS
All necessary consents, licences, authorisations and approvals to the
transactions constituted by a Permitted Acquisition or a Permitted
Equity Funded Acquisition and the Finance Documents have been obtained
on or prior to the date of the relevant acquisition and all consents,
licences, authorisations and other approvals necessary for
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the conduct of the business of the Group as carried on at the date
hereof have been, or when required will be obtained, their terms and
conditions have been, or once required, will be complied with in all
material respects and they have not been and, so far as it is aware,
will not be revoked or otherwise terminated.
19.24 TAXATION
19.24.1 Each Group member has duly and punctually paid and discharged
all taxes, assessments and governmental charges imposed upon it
or its assets within the time period allowed therefor without
imposing tax penalties or creating any Encumbrance with priority
to the Banks or the security granted or evidenced by the
Security Documents (save to the extent payment thereof is being
contested in good faith by the relevant Group member and
adequate reserves are being maintained for those taxes and where
payment thereof can lawfully be withheld and would not result in
an Encumbrance with priority to the security created or
evidenced by the Security Documents; in relation to the
representation made under this Clause 19.24 (Taxation) on the
date hereof, this proviso shall only apply to the extent any
such payment has been previously disclosed to the Agent in
writing) save that no breach of this representation in relation
to the payment and discharge of all taxes, assessments and
governmental charges imposed on each Group member or its assets
shall occur unless such payment and discharge would result in a
liability against any member of the Group in excess
of(pounds sterling)500,000.
19.24.2 No Group member is materially overdue in the filing of any tax
returns which would result in a liability against any Group
Member in excess of (pounds sterling)500,000.
19.24.3 No claims are being or are reasonably likely to be asserted
against any Group member with respect to taxes which could be
reasonably expected to have a Material Adverse Effect.
19.25 SECURITY INTEREST
Subject to the Legal Reservations, each Security Document to which it is
a party creates the security interest which that Security Document
purports to create or, if that Security Document purports to evidence a
security interest, accurately evidences a security interest which has
been validly created and each security interest ranks in priority as
specified in the Security Document creating or evidencing that interest.
19.26 INTELLECTUAL PROPERTY
It is not aware of any adverse circumstance relating to validity,
subsistence or use of any of its Intellectual Property which could
reasonably be expected to have a Material Adverse Effect.
19.27 GOOD TITLE TO ASSETS
It has good title to or valid leases of or other appropriate licence,
authorisation or consent to use its assets necessary to carry on its
business as presently conducted.
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19.28 LEGAL AND BENEFICIAL OWNER
It is the absolute legal (subject to the Voting Trust Agreement in
respect of the Parent and the Original Borrower any necessary
registrations in the books of the entity whose shares are being charged
or any other legal formalities referred to in the Legal Opinions which
will be effected promptly after the date hereof) and, where applicable,
beneficial owner of all its assets subject to any Permitted Encumbrances
and to any security granted under the Security Documents to which it is
a party.
19.29 ISSUE OF SHARE CAPITAL
Save to the extent contemplated in Clause 23.25 (Share Capital) or in
the Securities Purchase Agreement there are no agreements in force or
corporate resolutions passed which call for the present or further issue
or allotment of, or grant to any person the right (whether conditional
or otherwise) to call for the issue or allotment of any share, loan note
or loan capital of the Parent or any Group member (including an option
or right of pre-emption or conversion).
19.30 NO TRADING
Save as contemplated by, or otherwise in connection with this Agreement,
the Finance Documents, the Mezzanine Finance Documents and the
Acquisition Documents and the transactions contemplated hereby or
thereby, neither the Parent nor the Original Borrower has not traded or
undertaken any commercial activities of any kind and has any liabilities
or obligations (actual or contingent).
19.31 PENSIONS
Each member of the Group is in material compliance with all applicable
laws and contracts relating to the pension schemes (if any) operated by
it or in which it participates and has no material unrecorded or
unindemnified liabilities in respect of such schemes which could
reasonably be expected to have a Material Adverse Effect.
19.32 YEAR 2000 COMPLIANCE
The Parent believes (having made all reasonable enquiries) that the Year
2000 problem (that is, the risk that any computer hardware or software
or any equipment operated by electronic means used by the Group may be
unable to recognise and perform properly date-sensitive functions
involving a date before, on or after 31 December 1999) could not
reasonably be expected to have a Material Adverse Effect.
19.33 FINANCIAL MODEL AND FINANCIAL PROJECTIONS
The Financial Model and any future projections prepared for the purposes
of any Permitted Acquisition have been prepared on a basis that is in
all material respects consistent with UK GAAP.
19.34 PROPERTY
No single freehold, feuhold, leasehold or heritable property owned by
any Obligor has a value in excess of (pounds sterling)500,000.
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19.35 PERMITTED ACQUISITIONS AND PERMITTED EQUITY FUNDED ACQUISITIONS
19.35.1 Execution and Power
In relation to a Permitted Acquisition or a Permitted Equity
Funded Acquisition, its execution of the Acquisition Documents
to which it will be a party and its exercise of its rights and
performance of its obligations thereunder and the transactions
contemplated thereby (including, without limit, borrowing
thereunder and granting any security or guarantees contemplated
thereunder) will not:
(a) conflict with any agreement, mortgage, bond or other
instrument or treaty to which it is a party or which is
binding upon it or any of its assets; or
(b) conflict with its constitutive documents; or
(c) conflict with any applicable law or any applicable
official or judicial regulation or order.
In relation to a Permitted Acquisition or a Permitted Equity
Funded Acquisition it has the power to enter into and perform
its obligations under the Acquisition Documents to which it will
be a party and all corporate and other action required to
authorise the execution, delivery and performance of the
Acquisition Document to which it will be a party and the
transactions contemplated therein has been duly taken.
19.35.2 Acquisition Documents
In relation to any Permitted Acquisition or a Permitted Equity
Funded Acquisition there will be no amendment, variation or
waiver of the terms of the Acquisition Documents after the
relevant purchase date save as approved in writing by the Agent
other than any amendments or variations which are of a minor or
technical nature or which could not reasonably be considered to
be material to the interests of the Finance Parties and the
Acquisition Documents contain all of the terms of the agreement
between the purchaser and the vendors in relation to a Permitted
Acquisition or a Permitted Equity Funded Acquisition.
19.35.3 Parent's Knowledge
In relation to a Permitted Acquisition or a Permitted Equity
Funded Acquisition, the Parent is not aware of any event, fact
or circumstance which would constitute a breach of warranty or
misrepresentation or breach of contract or other claim against
the vendors if all references in the Acquisition Documents to
"so far as the vendors are aware" or similar were deleted.
19.36 REPETITION OF REPRESENTATIONS
19.36.1 The Repeated Representations shall be deemed to be repeated by
the relevant Obligor by reference to the then existing facts and
circumstances on the date hereof, the date each Notice of
Drawdown is given, on the first day of each
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Interest Period, on each date on which an Advance is or is to be
made (or any Advance is rolled over), and on each date on which
a company becomes (or it is proposed that a company becomes) an
Additional Obligor and at the end of each Financial Quarter of
the Group.
19.36.2 Clause 19.16 (Information Memorandum) shall be deemed to be made
only on the date that the Information Memorandum is approved by
the Parent and on the Syndication Date.
20. FINANCIAL INFORMATION
20.1 ANNUAL STATEMENTS
The Parent shall as soon as the same become available, but in any event
within 120 days after the end of each of its financial years, deliver to
the Agent in sufficient copies for the Banks the financial statements of
the Group and each Group member on a consolidated and consolidating
basis for such financial year, audited by an internationally recognised
firm of independent auditors licensed to practise in its jurisdiction of
incorporation, and the related auditor's and director's reports.
Such annual statements shall include a balance sheet, profit and loss
account and cash flow statement.
20.2 QUARTERLY STATEMENTS
The Parent shall as soon as the same become available, but in any event
within 45 days after the end of each quarter of each of its financial
years, deliver to the Agent in sufficient copies for the Banks the
consolidated financial statements of the Group for such period.
Such quarterly statements shall be in a form reasonably acceptable to
the Agent and shall include a balance sheet, profit and loss account and
cash flow statement, and (other than in respect of quarterly statements
in respect of any financial quarter falling in 1999) a comparison with
the financial statements for the same financial quarter of the previous
year and a description of significant acquisitions and disposals, and
other transactions or events which are material in the context of the
Group occurring in that financial quarter and the financial year to
date.
20.3 MONTHLY MANAGEMENT STATEMENTS
The Parent shall as soon as the same become available but in any event
within 30 days after the end of each month deliver to the Agent in
sufficient copies for the Banks the consolidated financial statements of
the Group for such period.
Such monthly accounts shall be on a month-to-month and cumulative basis
and in a form reasonably acceptable to the Agent and shall include a
balance sheet, profit and loss account and cashflow statements and
provide a management commentary thereon as to, inter alia, the Group's
performance during such month and the financial year to date and any
material developments or proposals affecting the Group or its business.
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20.4 ANNUAL BUDGET
The Parent shall, as soon as the same become available, and in any event
no later than 10 days prior to the beginning of any financial year,
deliver to the Agent in sufficient copies for the Banks an annual Budget
(in form reasonably acceptable to the Agent) prepared by reference to
each month in respect of such financial year of the Group including:
20.4.1 forecasts of projected disposals other than in the ordinary
course of trade (including timing and amount thereof) on a
consolidated basis of the Group for such financial year;
20.4.2 projected annual profit and loss accounts (including turnover
and operating costs) for and projected balance sheets and cash
flow statements on a monthly basis for such financial year on a
consolidated basis for the Group;
20.4.3 projected Capital Expenditure to be incurred on a monthly basis
for such financial year on a consolidated basis for the Group;
20.4.4 projected EBIT as at the end of each month in such financial
year;
20.4.5 a quantitative analysis and commentary for the management on its
proposed activities for such financial year;
20.4.6 a comparison against the Business Plan forecast for such period.
The Parent shall forthwith provide the Agent with details of any
material changes in the projections delivered under this Clause 20.4
(Annual Budget) as soon as it becomes aware of any such change.
20.5 OTHER REPORTS AND FILINGS
The Parent shall, as soon as the same become available, but in any event
within 30 days after the filing thereof, deliver to the Agent in
sufficient copies for the Banks copies of any and all reports (whether
on Form 10-K, Form 10-Q or otherwise), proxy materials and other
information and documents, if any, which TW US shall file with the U.S.
Securities and Exchange Commission or any governmental agencies
substituted therefor under the U.S. Securities Act of 1933, as amended,
or the U.S. Securities Exchange Act of 1934, as amended.
20.6 REQUIREMENTS AS TO FINANCIAL STATEMENTS
The Parent shall ensure that each set of financial statements delivered
by it pursuant to this Clause 20 (Financial Information) is certified by
an Authorised Signatory of the Parent as giving a true and fair view of
(in the case of audited financial statements) or fairly presents in all
material respects (in the case of unaudited financial statements) the
consolidated financial condition of the Group as at the end of the
period to which those financial statements relate and of the results of
the Group's operations during such period.
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20.7 COMPLIANCE CERTIFICATES
The Parent shall ensure that each set of financial statements delivered
by it pursuant to Clause 20.1 (Annual Statements) and Clause 20.2
(Quarterly Statements) is accompanied by a Compliance Certificate signed
by the Parent's auditors (in the case of a Compliance Certificate
delivered with the annual financial statements of the Group) and by the
Group Finance Director and one other director of the Parent (in the case
of a Compliance Certificate delivered with the Parent's annual or its
quarterly financial statements). Each Compliance Certificate shall
provide sufficient information to determine which subsidiaries of the
Parent are Material Subsidiaries.
20.8 OTHER FINANCIAL INFORMATION
Each Obligor shall from time to time on the request of the Agent,
furnish the Agent with such information about the business or financial
condition of the Group as the Agent or any Bank (through the Agent) may
reasonably require and, for the avoidance of any doubt, it shall be
reasonable for a Bank (through the Agent) to require copies of the
annual financial statements of any Obligor.
20.9 ACCOUNTING POLICIES
The Parent shall ensure that each set of financial statements delivered
by the Parent pursuant to this Clause 20 (Financial Information) is
prepared using UK GAAP (with normal period end adjustments for monthly
and quarterly accounts) consistent with those applied in the preparation
of the Business Plan (the "REFERENCE ACCOUNTING POLICIES") unless, in
relation to any such set of financial statements, the Parent notifies
the Agent that there have been one or more changes in any such
accounting policies, practices, procedures and reference period and in
which case the Parent shall procure that its auditors provide:
20.9.1 a description of the changes and the adjustments which would be
required to be made to those financial statements if they have
been prepared using the Reference Accounting Policies; and
20.9.2 sufficient information, in such detail and format as may be
reasonably required by the Agent, to enable the Banks to make an
accurate comparison between the financial position indicated by
those financial statements and the Business Plan or, as the case
may be, any accounts previously delivered under Clauses 20.1,
(Annual Statements) 20.2 (Quarterly Statements) and 20.3
(Monthly Management Statements).
If there has been a change in accounting policies, practices, procedures
or reference period and the description and information required by this
Clause 20.9 (Accounting Policies) have been provided by the auditors in
connection with such change and any amendments have been agreed pursuant
to Clause 20.10 (Change in Accounting Policy) in connection with such
change, then such change shall become part of the normal accounting
policies, practices, procedures and reference period as if it were used
in the preparation of the Reference Accounting Policies.
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20.10 CHANGE IN ACCOUNTING POLICIES
If there has been one or more such changes in any accounting policies,
practices or procedures or reference period:
20.10.1 the Agent and the Parent shall, at the Agent's or the Parent's
request, negotiate in good faith with a view to agreeing such
amendments to the financial covenants in Clause 22 (Financial
Condition) and the definitions used therein as may be necessary
to grant to the Banks protection comparable to that granted on
the date hereof, and any amendments as agreed will have effect
on the date agreed between the Agent and the Parent; and
20.10.2 if no such agreement is reached within 30 days of the Agent's
request, the Agent shall (if so requested by an Instructing
Group) instruct the auditors of the Parent or independent
accountants (approved by the Parent or, in the absence of such
approval within 5 days of request by the Agent therefor, a firm
with internationally recognised expertise) to determine any
amendment to Clause 22 (Financial Condition) which those
auditors or, as the case may be, accountants (acting as experts
and not arbitrators) consider appropriate to grant to the Banks
protection comparable to that granted on the date hereof, which
amendments shall take effect when so determined by those
auditors, or as the case may be, accountants. Where such
auditors or accountants are instructed hereunder, the cost and
expense of those auditors or accountants shall be for the
account of the Parent.
21. OTHER INFORMATION
21.1 SHAREHOLDER INFORMATION
The Parent shall, as soon as reasonably practicable, after the same are
supplied or made available, furnish the Agent with such general
information as is required by law to be supplied or made available to
all shareholders (in their capacity as such) of the Parent or, in the
case of any Obligor, their creditors generally or any class thereof.
21.2 AUDITOR'S LETTER
The Parent shall at the reasonable request of the Agent require and
authorise its auditors to discuss with the Agent the information and
other matters related to or arising out of the annual audit of the Group
by the auditors for the time being of the Parent.
21.3 LITIGATION AND ENVIRONMENTAL CLAIMS
The Parent shall advise the Agent promptly upon becoming aware of the
same of the details of:
21.3.1 each litigation, arbitration or administrative proceeding
pending or reasonably likely to be commenced against any member
of the Group which would, if adversely determined, result in
liability of such member of the Group in an amount in excess of
(pounds sterling)500,000; and
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21.3.2 each Environmental Claim which would involve liability or
expenditure in excess of (pounds sterling)500,000.
21.4 SHAREHOLDERS
The Parent shall promptly inform the Agent in writing upon any transfer
of any legal or beneficial ownership of the Borrower and itself or any
change of control of such shares of which it is aware and such notice
shall include details of the previous owner or controller and the new
owner or controller and the number and type of shares affected.
21.5 INFORMATION COVENANTS
The Parent shall procure that any notices required to be delivered to
the Agent under Clause 23 (Covenants) are delivered in accordance with
such clause.
22. FINANCIAL CONDITION
22.1 FINANCIAL COVENANTS
The Parent shall ensure that the financial condition of the Group shall
be such that:
22.1.1 Senior Interest Cover Ratio: Interest Cover for each Relevant
Period specified in Column 1 below shall not be less than the
ratio set out in Column 2 below opposite each Relevant Period.
COLUMN 1 COLUMN 2
RELEVANT PERIOD RATIO (TO 1.0)
(ENDING ON)
Date hereof - 31 March 2000 2.75
Date hereof - 30 June 2000 2.75
Date hereof - 30 September 2000 3.00
1 January 2000 - 31 December 2000 3.00
1 April 2000 - 31 March 2001 3.00
1 July 2000 - 30 June 2001 3.00
1 October 2000 - 30 September 2001 3.50
1 January 2001 - 31 December 2001 3.50
1 April 2001 - 31 March 2002 3.50
1 July 2001 - 30 June 2002 3.50
1 October 2001 - 30 September 2002 4.50
1 January 2002 - 31 December 2002 4.50
1 April 2002 - 31 March 2003 4.50
1 July 2002 - 30 June 2003 4.50
1 October 2002 - 30 September 2003 5.00
Each 12 month period ending on a Quarter Date 5.00
falling after 30 September 2003
"INTEREST COVER" means, in relation to any Relevant Period, the
ratio of EBITA to Net Senior Cash Interest for such Relevant
Period.
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22.1.2 Fixed Charge Cover: Fixed Charge Cover for each Relevant Period
specified in column 1 below shall not be less than the ratio set
out in column 2 below opposite such Relevant Period.
COLUMN 1 COLUMN 2
RELEVANT PERIOD RATIO (TO 1.0)
1 January 2000 - 30 June 2000 1.0
1 January 2000 - 30 September 2000 1.0
1 January 2000 - 31 December 2000 1.0
1 April 2000 - 30 March 2001 1.0
Each 12 month period ending on a Quarter Date 1.0
falling after 30 March 2001
"FIXED CHARGE COVER" means, in relation to any Relevant Period,
the ratio of Cash Flow to Net Debt Service for such Relevant
Period.
22.1.3 Debtor Days: The Parent shall ensure that on each Quarter Date,
the Debtor Days shall not exceed 82.
22.1.4 Net Worth: Consolidated Net Worth shall not at any time during
each period specified in column 1 below be less than the amount
specified in column 2 below opposite such Relevant Period.
COLUMN 1 COLUMN 2
FINANCIAL YEAR ENDING Amount (pounds (million)
sterling)
Date hereof - 29 September 2001 20 + X
30 September 2001 - 29 September 2002 22 + X
30 September 2002 - 29 September 2003 25 + X
30 September 2003 - 29 September 2004 30 + X
30 September 2004 - 29 September 2005 35 + X
Each 12 month period ending on 29 35 + X
September after 29 September 2005
"X" means adjusted as appropriate to take account of any
revaluation arising out of the consolidation of the Group.
22.1.5 Total Net Debt Cover Ratio: Total Net Debt Cover as at the end
of each Relevant Period specified in Column 1 below shall not be
more than the ratio set out in Column 2 below opposite such
Relevant Period.
COLUMN 1 COLUMN 2
RELEVANT PERIOD RATIO (TO 1.0)
(ENDING ON)
1 January 2000 - 31 March 2000 4.50
1 January 2000 - 30 June 2000 4.50
1 January 2000 - 30 September 2000 4.50
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1 January 2000 - 31 December 2000 4.50
1 April 2000 - 31 March 2001 4.50
1 July 2000 - 30 June 2001 4.50
1 October 2000 - 30 September 2001 4.25
1 January 2001 - 31 December 2001 4.25
1 April 2001 - 31 March 2002 4.25
1 July 2001 - 30 June 2002 4.25
1 October 2001 - 30 September 2002 3.50
1 January 2002 - 31 December 2002 3.50
1 April 2002 - 31 March 2003 3.50
1 July 2002 - 30 June 2003 3.50
1 October 2002 - 30 September 2003 3.00
1 January 2003 - 31 December 2003 3.00
1 April 2003 - 31 March 2004 3.00
1 July 2003 - 30 June 2004 3.00
1 October 2003 - 30 September 2004 2.50
Each 12 month period ending on a Quarter Date 2.50
falling after 30 September 2004
"TOTAL NET DEBT COVER" means, in relation to any Relevant
Period, the ratio of Total Net Debt as at the last day of such
period to EBITDA for such period.
22.1.6 Capital Expenditure: The Group shall not in any financial year
incur a greater amount of Capital Expenditure than is specified
in the annual Budget relating to such financial year.
22.2 CALCULATIONS
For the purpose of calculating Total Net Debt Cover:
In relation to any Relevant Period ending on or before 30 September
2000, EBITDA shall be determined on a rolling 12 month basis and shall
be calculated by annualising actual EBITDA, in respect of the period
from 1 January 2000 to the last day of the Relevant Period.
22.3 FINANCIAL DEFINITIONS
In Clause 22 (Financial Condition) the following terms have the
following meanings.
"APPROVED ACCOUNTING PRINCIPLES" means UK GAAP.
"AVERAGE DAILY SALES" means, the total sales during the relevant quarter
divided by the number of days in that quarter.
"CASH" means, at any time, cash at bank denominated in sterling and
credited to an account in the name of a Borrower with an Eligible
Deposit Bank and to which a Borrower is alone beneficially entitled and
for so long as (a) such cash is repayable on
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demand and (b) repayment of such cash is not contingent on the prior
discharge of any other indebtedness of any Group member or of any other
person whatsoever or on the satisfaction of any other condition.
"CAPITAL EXPENDITURE" means any expenditure which would be treated as
capital expenditure in accordance with Approved Accounting Principles.
"CASH FLOW" means, in respect of any Relevant Period, EBIT for such
Relevant Period:
(a) adding back depreciation and the amount attributable to
amortisation of goodwill or any intangible assets during that
period, to the extent deducted in arriving at EBIT;
(b) minus any taxes paid in cash during such Relevant Period;
(c) minus all Capital Expenditure during such Relevant Period and
for this purpose to the extent that any Capital Expenditure is
financed by finance lease, hire purchase or similar arrangements
the amount included in Capital Expenditure shall be the amount
which would have been included had such Capital Expenditure not
been so financed but after including the principal amount
financed under such financing arrangements as a cash inflow;
(d) plus any extraordinary items received in cash during such
Relevant Period;
(e) minus any extraordinary items paid in cash during such Relevant
Period;
(f) minus the amount of the increase or plus the amount of the
decrease (as the case may be) in Working Capital during such
Relevant Period;
(g) plus the amount of any dividends or other profit distributions
(net of tax) received in cash by any member of the Group during
such Relevant Period from companies which are not members of the
Group;
(h) minus the aggregate amount of Total Consideration of Permitted
Acquisitions and Permitted Equity Funded Acquisitions made
during such Relevant Period;
(i) plus the aggregate of the Available Cash and drawings under the
Term B Facility utilised to fund Permitted Acquisitions and
Permitted Equity Funded Acquisitions made during such Relevant
Period;
(j) after adding back or deducting, as the case may be, the amount
of any gain or any loss against book value arising on a disposal
of any asset (not being stock disposed of in the ordinary course
of trading) during such Relevant Period to the extent deducted
or added back in arriving at EBIT for that period;
(k) plus (to the extent not already included) the amount of any Net
Disposal Proceeds arising during such Relevant Period on the
disposal of any asset (not
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being stock disposed of in the ordinary course of trading) save
for any Net Disposal Proceeds which are held in the Holding
Account;
(l) plus (to the extent not already included) any amount of
additional available cash resulting from the use of any pension
surplus during such Relevant Period;
(m) minus, except to the extent deducted in calculating EBIT, the
net cost of management fees during such Relevant Period;
(n) minus payments on provisions or reserves not included in Working
Capital in respect of such Relevant Period;
(o) minus payments with respect to capitalised assets not included
in Capital Expenditure or Working Capital in respect of such
Relevant Period; and
(p) after adding back the aggregate amount of payments during such
Relevant Period made in respect of Earn Out obligations of the
Group entered into prior to the date of the Agreement PROVIDED
THAT the aggregate of all such adjustments made under this
sub-paragraph (p) since the date of this Agreement shall not
exceed the cash balances (excluding Available Cash) of the Group
at the date hereof.
"CONSOLIDATED FIXED CHARGES" means, in respect of any Relevant Period,
the aggregate of:
(a) Net Cash Interest for that Relevant Period;
(b) all scheduled repayments of principal under the terms of any
Indebtedness for Borrowed Money (but excluding any voluntary or
mandatory prepayment of the Facilities) of any member of the
Group (excluding any Indebtedness for Borrowed Money between any
member of the Group and any other member of the Group) falling
due during that period:
(i) including, without limitation, all capital payments
falling due in respect of any Indebtedness for Borrowed
Money falling within paragraph (g) of the definition of
that term; and
(ii) excluding any repayment or prepayment of any overdraft
or revolving credit facility (including, without
limitation, the Revolving Advances) falling due during
that period and capable of being simultaneously redrawn
under the terms of the relevant facility;
"CONSOLIDATED NET WORTH" means at any time the aggregate of the amounts
paid up or credited as paid up on the issued share capital of the Parent
(other than any redeemable shares) and the aggregate amount of the
reserves of the Group including:
(a) any amount credited to the share premium account;
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(b) any capital redemption reserve fund; and
(c) any balance standing to the credit or debit of the consolidated
profit and loss account reserve of the Group, adjusted for (i)
the effect of the historic goodwill arising on consolidation of
(pounds sterling)50,701,000; (2) the elimination of the
amortisation charged in respect of purchased goodwill as per the
consolidated profit and loss account of the Group; and (3)
deducting the amortisation of purchased goodwill using a five
(5) year amortisation period,
but deducting:
(i) (to the extent included) any amounts arising from an upward
revaluation of assets made at any time after 30 September 1999;
and
(ii) (to the extent included) any dividend or distribution
recommended but not debited to the profit and loss account
reserve or made by any member of the Group to the extent payable
to a person who is not a member of the Group and such
distribution is not provided for in the most recent financial
statements,
and so that no amount shall be included or excluded more than once.
"CURRENT ASSETS" means the sum of inventory, trade receivables and other
receivables (including sundry debtors) falling due within 12 months,
prepaid accounts and other assets but excluding cash at bank and in
hand.
"CURRENT LIABILITIES" means the sum of all liabilities falling due
within 12 months (including trade creditors, accruals and provisions and
prepayments but excluding any Indebtedness for Borrowed Money falling
due within such period.
"DEBTOR DAYS" means, with respect to any Quarter Date, the aggregate of
all outstanding receivables (excluding VAT) (net of any provisions) on
such Quarter Date divided by Average Daily Sales.
"EBIT" means, in respect of any Relevant Period, the consolidated profit
of the Group for such period:
(a) before any deduction of corporation tax or other taxes on income
or gains for such Relevant Period;
(b) before any deduction of Interest Payable in respect of such
Relevant Period and before amortisation of Acquisition Costs, to
the extent amortised;
(c) after deducting (to the extent included) Interest Receivable in
respect of such Relevant Period;
(d) excluding extraordinary items relating to such Relevant Period;
(e) after deducting (to the extent otherwise included) the amount of
profit (or adding back the loss) for such Relevant Period of any
member of the Group
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which is attributable to any third party (not being a member of
the Group) which is a shareholder in such member of the Group;
(f) after deducting (to the extent otherwise included) any gain over
book value arising in favour of a member of the Group on the
disposal of any asset (not being any disposals made in the
ordinary course of trading) during such Relevant Period and any
gain arising on any revaluation of any asset during such period;
(g) after adding back (to the extent otherwise deducted) any loss
against book value incurred by a member of the Group on the
disposal of any asset (not being any disposals made in the
ordinary course of trading) during such Relevant Period; and
(h) after deducting any depreciation on fixed assets relating to
such Relevant Period.
"EBITA" means, in respect of any Relevant Period, EBIT for such period
before deducting amortisation of any goodwill on any intangible assets
relating to such Relevant Period.
"EBITDA" means, in respect of any Relevant Period, EBIT for such period
adding back depreciation and amortisation during that period, to the
extent deducted in calculating EBIT and taking into account any
applicable Agreed Pro Forma Adjustments.
"ELIGIBLE DEPOSIT BANKS" means any bank or financial institution with a
short term rating of at least A1 granted by Standard & Poor's
Corporation or P1 granted by ▇▇▇▇▇'▇ Investors Services Inc..
"EXCESS CASH FLOW" means, in respect of any financial year of the Group,
Cash Flow for such financial year:
(a) less the aggregate of:
(i) Consolidated Fixed Charges of the Group; and
(ii) (9.375% multiplied by the Original Senior Subordinated
Note Amount) minus any cash interest paid under the
Senior Subordinated Notes,
for such financial year;
(b) less (to the extent included in calculating Cash Flow) the
amount prepaid during such financial year pursuant to the
provisions of Clause 12.1 (Mandatory Prepayment on Disposals);
(c) less an amount equal to the amount required to reduce drawings
under the Revolving Facility to zero as at the date of
calculation.
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"FINANCIAL QUARTER" means the period commencing on the day after one
Quarter Date and ending on the next Quarter Date.
"INTEREST" means, in respect of any Relevant Period, amounts payable
pursuant to Clause 14 (Taxes) and interest and amounts in the nature of
interest paid or payable in respect of any Indebtedness for Borrowed
Money of any member of the Group excluding any interest paid or payable
on Indebtedness for Borrowed Money between any member of the Group and
any other member of the Group but including:
(a) the interest element of finance leases;
(b) discount and acceptance fees payable (or deducted) in respect of
any Indebtedness for Borrowed Money excluding any income or
expense received or incurred in connection with any sales
through factoring or leasing transactions but only to the extent
that such amounts have been taken into account in the cost of
sales for the purposes of calculating EBIT;
(c) the net amount (expressed as a positive or negative amount, as
appropriate) due to or from members of the Group pursuant to
interest rate hedging or similar agreements; and
(d) commitment, utilisation and non-utilisation fees payable or
incurred in respect of Indebtedness for Borrowed Money.
"INTEREST PAYABLE" means, in respect of any Relevant Period, Interest
accrued (whether or not paid or capitalised) during that Relevant Period
as an obligation of any member of the Group during that period and
calculated on the basis that amortisation of Acquisition Costs, to the
extent amortised, will be excluded.
"INTEREST RECEIVABLE" means, in respect of any Relevant Period, the
amount of Interest (which for this purpose shall include all payments of
the type described in the definition of Interest above (except for
paragraph (c) thereof)) received by members of the Group (other than by
other members of the Group) during such period whether or not paid.
"MONITORED CAPITAL EXPENDITURE" means Capital Expenditure other than
Permitted Acquisitions.
"NET CASH INTEREST" means, in respect of any Relevant Period, Interest
Payable less Interest Receivable to the extent actually received in cash
during that period.
"NET DEBT SERVICE" means, in respect of any Relevant Period, the
aggregate of:
(a) Net Cash Interest; and
(b) the aggregate of scheduled payments of any Indebtedness for
Borrowed Money falling due.
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"NET SENIOR CASH INTEREST" means, in respect of any Relevant Period,
Senior Interest Payable less Interest Receivable to the extent actually
received in cash during that period.
"NET SENIOR DEBT" means, at any time, all Indebtedness for Borrowed
Money of the Group at such time:
(a) less amounts outstanding under the Mezzanine Facility at such
time;
(b) less the aggregate amount of all cash balances (excluding the
Available Cash) and Cash Equivalent Investments;
(c) less any Indebtedness for Borrowed Money (not falling within (a)
above) which is subordinated pursuant to the Intercreditor
Arrangements or otherwise on terms acceptable to an Instructing
Group.
"QUARTER DATE" means each of 31 March, 30 June, 30 September and 31
December.
"RELEVANT PERIOD" means (notwithstanding that such period commenced
prior to the date hereof):
(a) each period of twelve months ending on the last day of the
Parent's financial year; and
(b) each period of twelve months ending on the last day of each
Financial Quarter of the Parent's financial year,
PROVIDED THAT if any such period includes the date hereof, it shall be
deemed to commence on such date.
"SENIOR INTEREST" means, in respect of any Relevant Period, all interest
and amounts in the nature of interest paid or payable in respect of the
Facilities of any member of the Group including any commitment,
utilisation and non-utilisation fees payable or incurred in respect of
the Facilities.
"SENIOR INTEREST PAYABLE" means, in respect of any Relevant Period,
Senior Interest accrued (whether or not paid or capitalised) during that
Relevant Period as an obligation of any member of the Group during that
period.
"TOTAL DEBT" means, at any time, the aggregate amount of Indebtedness
for Borrowed Money (excluding any indebtedness incurred in relation to
Senior Subordinated Notes) of the Group at such time.
"TOTAL NET DEBT" means, in respect of any Relevant Period, Total Debt
less the aggregate amount of all cash balances (excluding the Available
Cash).
"WORKING CAPITAL" means, at any time, the Consolidated Net Assets of the
Group comprising stock and debtors (but excluding any cash) and
deducting trade creditors and other Current Liability at the last day of
such Relevant Period.
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22.4 FINANCIAL TESTING
The financial covenants set out in Clause 22 (Financial Condition) shall
be tested by reference to each of the financial statements and/or each
Compliance Certificate delivered pursuant to Clause 20 (Financial
Information).
22.5 AUDITOR'S VERIFICATION
The Agent may, at any time if it has reasonable grounds for believing
that the figures prepared by the Parent are incorrect, inaccurate or
incomplete at the Parent's expense require the auditors of the Group or
the Group to verify the figures supplied by the Parent in connection
with the financial conditions set out in Clause 22.1 (Financial
Covenants).
The Agent may, in accordance with this Clause 22.5, request verification
of any figure or calculation made in a Compliance Certificate and/or
delivered under Clause 21 (Other Information) and/or any figure
contained in the financial statements delivered under Clause 20
(Financial Information) which is relevant to the calculation of the
financial conditions referred to above.
If such auditors fail to verify such figures to the reasonable
satisfaction of the Agent after being requested to do so, the Agent may
appoint an independent firm of accountants to carry out an appropriate
investigation and give a certificate in a form and content reasonably
satisfactory to the Agent certifying or verifying the relevant figures
and satisfaction of the above financial conditions shall be determined
be reference to the figures so verified or certified even if the audited
or management accounts for the same date or period have not yet been
published.
22.6 ACCOUNTING TERMS
All accounting expressions to the extent that not otherwise defined
herein shall be construed in accordance with UK GAAP.
23. COVENANTS
23.1 MAINTENANCE OF LEGAL VALIDITY AND LEGAL STATUS
Each Obligor shall do all such things as are necessary to maintain its
and its subsidiaries existence as a legal person and obtain, comply with
the terms of and do all that is necessary to maintain in full force and
effect all authorisations, approvals, licences, consents and exemptions
required in or by the laws of its jurisdiction of incorporation to
enable it lawfully to enter into and perform its obligations under the
Finance Documents to which it is expressed to be a party and to ensure
the legality, validity, enforceability (subject to the Legal
Reservations) or admissibility in evidence in its jurisdiction of
incorporation of the Finance Documents and, on request of the Agent,
supply copies (certified by an Authorised Signatory of the relevant
Obligor as true, complete and up to date) of any such authorisations,
approvals, licences, consents and exemptions.
23.2 INSURANCE
23.2.1 Each Obligor shall and shall procure that each Material
Subsidiary shall effect and maintain insurances on and in
relation to its business and assets with
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reputable underwriters or insurance companies against such risks
and to such extent as is usual for prudent companies carrying on
a business such as that carried on by such Material Subsidiary
(including, but not limited to, loss of earnings, business
interruption, directors and officers liability cover).
23.2.2 Without prejudice to sub-clause 23.2.1, each Obligor shall, and
shall procure that each Material Subsidiary effects and
maintains insurances on and in relation to its business and
assets:
(a) against such risks and at such levels as are recommended
by such Material Subsidiary's insurance advisers or such
higher levels as are normally maintained by persons
carrying on the same business as that carried on by such
Group member; and
(b) in compliance with any relevant agreements which are
binding on it from time to time.
23.2.3 The Parent shall (if so requested in writing) supply the Agent
with copies of all such insurance policies or certificates of
insurance in respect thereof or (in the absence of the same)
such other evidence of the existence of such policies as may be
reasonably acceptable to the Agent and shall, in any event,
notify the Agent of any material changes to its insurance cover
made from time to time.
23.3 ENVIRONMENTAL MATTERS
23.3.1 Each Obligor shall and shall ensure that each member of the
Group shall comply in all material respects with all
Environmental Law and obtain and maintain any Environmental
Permits and take all reasonable steps in anticipation of known
or expected future changes to or obligations under the same,
breach of which (or failure to obtain, maintain or take which)
could reasonably be expected to have a Material Adverse Effect.
23.3.2 Each Obligor shall, and shall procure that each Group member
shall, inform the Agent in writing as soon as reasonably
practicable upon becoming aware of the same if any Environmental
Claim has been commenced or (to the best of it's knowledge and
belief) is threatened against any member of the Group in any
case where such claim would be reasonably likely to have a
Material Adverse Effect or of any facts or circumstances which
will or are reasonably likely to result in any Environmental
Claim being commenced or threatened against any member of the
Group in any case where such claim could reasonably be expected
to have a Material Adverse Effect.
23.4 NOTIFICATION OF EVENTS OF DEFAULT
Each Obligor shall and shall procure that each Group member shall,
inform the Agent of the occurrence of any Event of Default or Potential
Event of Default and, upon receipt of a written request to that effect
from the Agent (if the Agent has reasonable grounds for believing that
there may be an Event of Default or Potential Event of
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Default), confirm to the Agent that, save as previously notified to the
Agent or as notified in such confirmation, no Event of Default or
Potential Event of Default has occurred.
23.5 CLAIMS PARI PASSU
Each Obligor shall ensure that at all times the claims of the Finance
Parties against it under the Finance Documents rank at least pari passu
with the claims of all its other unsecured and unsubordinated creditors
save those whose claims are preferred by any bankruptcy, insolvency,
liquidation or other similar laws of general application.
23.6 CONSENTS AND APPROVALS
Each Obligor shall, and shall procure that each member of the Group
shall, comply with all applicable laws, rules, regulations and orders
and obtain and maintain all governmental and regulatory consents,
licences, authorisations and approvals the failure to comply with which
or the failure to obtain and maintain which could be reasonably be
expected to have a Material Adverse Effect.
23.7 CONDUCT OF BUSINESS
Each Obligor shall, and shall procure that each Material Subsidiary
shall, ensure that it has the right and is duly qualified to conduct its
business as it is conducted from time to time in all applicable
jurisdictions and does all things necessary to obtain, preserve and keep
in full force and effect all material rights including, without
limitation, all franchises, contracts, licences, IP Licences, consents
and other rights which are necessary for the conduct of its business.
23.8 TAX
Each Obligor shall, and shall procure that each Material Subsidiary
shall, duly and punctually pay and discharge (a) all taxes, assessments
and governmental charges imposed upon it or its assets within the time
period allowed therefor without imposing penalties and without resulting
in an Encumbrance with priority to any Bank or any security purported to
be granted by or created pursuant to the Security Documents (save to the
extent payment thereof is being contested in good faith by the relevant
Group member and adequate reserves are being maintained for those taxes
and where payment thereof can lawfully be withheld and would not result
in an Encumbrance with priority to the security created or evidenced by
the Security Documents) and (b) all lawful claims which, if unpaid,
would by law become Encumbrances upon its assets which are not Permitted
Encumbrances.
23.9 PRESERVATION OF ASSETS
Each Obligor shall, and shall procure that each Material Subsidiary
shall, maintain and preserve all of its assets that are necessary in the
conduct of its business as conducted at the date hereof in good working
order and condition, ordinary wear and tear excepted.
23.10 SECURITY
23.10.1 Each Obligor shall, and shall procure that each member of the
Group shall, at its own expense, take all such action as the
Agent or the Security Agent may
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require (acting reasonably) for the purpose of perfecting or
protecting the Agent's or Security Agent's rights under and
preserving the security interests intended to be created or
evidenced by any of the Finance Documents and as the Agent or
the Security Agent may require following the making of any
declaration pursuant to Clause 24.23 (Acceleration and
Cancellation) or 24.24 (Advances Due on Demand) for facilitating
the realisation of any such security or any part thereof.
23.10.2 Each Obligor shall, and shall procure that each member of the
Group shall, ensure that (save as specified in the Legal
Reservations) each Security Document to which it is a party
creates the security interest which that Security Document
purports to create or, if that Security Document purports to
evidence a security interest, accurately evidences a security
interest which has been validly created and that each security
interest ranks in priority as specified in the Security Document
creating or evidencing that interest.
23.11 PENSIONS
The Obligors shall, and shall procure that each Group member shall,
ensure that all pension schemes are administered and funded in
accordance with applicable law.
23.12 ACCESS
While an Event of Default or Potential Event of Default (or the Agent
reasonably suspects an Event of Default) is continuing and is not
remedied or waived in respect of which information has been requested by
the Agent and not supplied or not adequately answered, the Parent shall,
ensure that any one or more representatives, agents and advisers of the
Agent will on reasonable notice be allowed to have access to the assets,
books, records and premises of each Group member and to inspect the same
during normal business hours (at the reasonable expense of the Parent).
23.13 INTELLECTUAL PROPERTY
Each Obligor shall, and shall procure that each Group member shall do
all acts as are reasonably practicable to maintain, protect and
safeguard the Intellectual Property necessary for the business of the
relevant Group member and not terminate or discontinue the use of any
such Intellectual Property save that licensing arrangements in relation
to such Intellectual Property may be entered into between members of the
Group provided that (1) such licensing arrangements do not allow any
further sub-licensing by the licensee and (2) such licensing
arrangements would not have a material adverse effect on the value of
any of the Intellectual Property the subject matter of such licensing
arrangements Provided that a failure to do so would cause a Material
Adverse Effect.
23.14 BANK ACCOUNTS
Each Obligor shall ensure that all sums received by an Obligor which is
party to a Security Document providing security over a bank account
which security is ultimately assigned and/or pledged to the Security
Agent are paid into a bank account or accounts with such banks or
financial institutions previously approved in writing by the Agent
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and which are subject (to the extent legally possible) to security in
favour of the Security Agent pursuant to the Security Documents.
23.15 VENDORS WARRANTIES
In relation to a Permitted Acquisition or a Permitted Equity Funded
Acquisition, the Borrower shall diligently pursue all material claims
(if any) for breach of contract or warranty by, or misrepresentation by,
or indemnity or other claim (if any) against the vendors or any
affiliate thereof or any of their respective employees, officers or
advisers or any other party under or in connection with any Acquisition
Document which could reasonably be expected to have a Material Adverse
Effect.
23.16 BANK ACCOUNTS
The Parent shall, as soon as possible, but in any event, no later than
the day following three (3) months after the date hereof, ensure that in
relation to a Borrower, all sums received by it or by any Group Member
are paid into a bank account or accounts with a member of the syndicate
Banks hereunder and are subject to the security in favour of the
Security Agent pursuant to the Security Documents.
23.17 NEGATIVE PLEDGE
No Obligor shall, and each Obligor will procure that no member of the
Group shall, create or permit to subsist any Encumbrance over all or any
of its present or future revenues or assets other than a Permitted
Encumbrance or create any restriction or prohibition on Encumbrances
over all or any of its present or future revenues or assets.
23.18 LOANS AND GUARANTEES
No Obligor shall, and each Obligor will procure that no member of the
Group shall, make any loans, grant any credit or other financial
accommodation or give any guarantee (except as required by the Finance
Documents) to or for the benefit of any person or otherwise voluntarily
assume any liability, whether actual or contingent, in respect of any
obligation of any other person except:
23.18.1 trade credit or indemnities or guarantees granted in the
ordinary course of trading and upon terms usual for such trade;
or
23.18.2 Permitted Transactions.
23.19 FINANCIAL INDEBTEDNESS
No Obligor shall, and each Obligor will procure that no member of the
Group shall, incur, create or permit to subsist or have outstanding any
Financial Indebtedness or enter into any agreement or arrangement
whereby it is entitled to incur, create or permit to subsist any
Financial Indebtedness other than, in either case, Permitted
Indebtedness.
23.20 DISPOSALS
No Obligor shall, and each Obligor shall procure that no member of the
Group shall make any disposal of, by one or more transactions or series
of transactions (whether related or not), the whole or any part of its
revenues or its assets or its business or undertakings other than
Permitted Disposals.
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23.21 MERGERS
No Obligor shall, and each Obligor shall procure that no member of the
Group shall, without the prior consent of an Instructing Group, merge or
consolidate with any other person, enter into any demerger transaction
or participate in any other type of corporate reconstruction (other than
a corporate reconstruction which is effected by means of capitalisation
of any Intra-Group Loan permitted hereunder).
23.22 ACQUISITIONS
Other than Permitted Acquisitions or Permitted Equity Funded
Acquisitions no Obligor shall, and each Obligor shall procure that no
member of the Group shall (without the prior consent of an Instructing
Group):
23.22.1 purchase, subscribe for or otherwise acquire any shares (or
other securities or any interest therein) in, or incorporate,
any other company or agree to do any of the foregoing; or
23.22.2 purchase or otherwise acquire any assets (other than in the
ordinary course of business or pursuant to any Capital
Expenditure permitted under the terms of this Agreement) or
(without limitation to any of the foregoing) acquire any
business or interest therein or agree to do so; or
23.22.3 form, or enter into, any partnership, consortium, Joint Venture
or other like arrangement or agree to do so.
23.23 TOTAL PERMITTED ACQUISITIONS
23.23.1 The Parent shall ensure that the aggregate Total Consideration
incurred in each financial year in relation to Permitted
Acquisitions and Permitted Equity Funded Acquisitions does not
exceed (pounds sterling)12,500,000.
23.23.2 The Parent shall ensure that the Total Consideration for any
single Permitted Acquisition is not greater than
(pounds sterling)1,250,000.
23.24 DIVIDENDS, DISTRIBUTIONS AND INTEREST
23.24.1 No Obligor shall, and each Obligor shall procure that no Group
member shall, pay, make or declare any dividend, return on
capital, repayment of capital contributions or other
distribution (whether in cash or in kind) or make any
distribution of assets or other payment (including management
fees) whatsoever whether directly or indirectly save (i) in
relation to such payments made by an Obligor to the Parent to
fund (a) tax liabilities and (b) administration costs provided
that the aggregate amount of the loans made under paragraph
(a)(v) of the definition of Permitted Transactions and this
paragraph (i) does not exceed (pounds sterling)100,000 per annum
and (ii) for Permitted Transactions.
23.24.2 No Obligor shall, and each Obligor shall procure that no Group
member shall, pay any interest or return on principal or
repayment of principal or other distribution (in cash or in
kind) to make any distribution of assets or other payment
whatsoever in respect of the Senior Subordinated Notes or any
other
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loan notes or loan capital whether directly or indirectly save
for Permitted Transactions and payments of interest in respect
of the Senior Subordinated Notes permitted under the
Intercreditor Arrangements.
23.24.3 No Obligor shall, and each Obligor shall procure that no Group
member shall, pay any fees or make any other payment whatsoever
whether directly or indirectly save each Obligor may pay
management fees for the two financial years after the date
hereof in aggregate up to an amount of (pounds sterling)500,000
in each financial year (and thereafter if the proposed assets
sales as identified in the TW US Strategy Paper do not occur,
(pounds sterling)250,000 in aggregate in each financial year) in
management fees charged by TW US to the Group in relation to
compensation for providing management, personnel and facilities
to the Group.
PROVIDED THAT no such payments shall be made under this Clause 23.24
(Dividends, Distributions and Interest) if a Payment Blockage Event has
occurred and is continuing and the Agent (acting on the instructions of
an Instructing Group) has issued a Stop Notice (as such term is defined
in the Intercreditor Arrangements).
23.25 SHARE CAPITAL
No Obligor shall, and shall procure that no member of the Group shall,
issue or redeem or repurchase, purchase, defease or retire any shares or
grant any person the right (whether conditional or unconditional) to
call for the issue or allotment of any share of the Parent or any Group
member or any other equity investments, howsoever called, or alter any
rights attaching to its issued shares (including ordinary and preference
shares) other than:
23.25.1 in the case of the Original Borrower, ordinary shares to be
issued pursuant to the Warrant Documents or which are otherwise
issued to satisfy the obligations of the Parent under the Senior
Subordinated Notes and/or the obligations of the Original
Borrower under the Mirror Notes;
23.25.2 (i) any issue of shares by an Obligor (other than the by the
Original Borrower or the Parent) to another wholly-owned
member of the Group;
(ii) the redemption, repurchase, defeasance or retirement by
or purchase by a Group member of shares or share capital
owned by the Original Borrower;
23.25.3 the granting of its options to employees of any Group member to
acquire 10,010,021 shares and the issue of shares upon the
exercise of such options; and
23.25.4 under the Management Options.
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23.26 AMENDMENTS
No Obligor shall, and shall procure that no Group member shall, amend,
vary, novate, supplement or terminate any of the Voting Trust Agreement,
the Mezzanine Credit Agreement, the constitutional documents or any
other document delivered to the Agent pursuant to Clauses 2.3
(Conditions Precedent), 36.2 (Borrower Conditions Precedent) or 37.2
(Guarantor Conditions Precedent) or waive any right thereunder other
than any amendment or variation which is of a minor or technical nature
or which could not reasonably be considered to be material to the
interests of the Finance Parties.
23.27 CHANGE OF BUSINESS
No Obligor shall, and shall procure that no Material Subsidiary shall,
without the prior consent of an Instructing Group, make any material
changes to the general nature of the business of the Group as carried on
at the date hereof, or carry on any other business which results in any
material change to the nature of such business.
23.28 FEES, COMMISSIONS AND INTEREST
No Obligor shall, and shall procure that no Group member shall, other
than as required or permitted hereunder or under the Intercreditor
Arrangements, pay any fees or commissions or interest or repayments of
intra-group indebtedness other than the arrangers fee of (pounds
sterling)555,000 payable by the Original Borrower to Triumph Corporate
Finance Group, Inc. on the date hereof.
23.29 ARM'S LENGTH BASIS
No Obligor shall, and shall procure that no Group member shall, enter
into any arrangement or contract with any of its affiliates or any Group
member save where:
23.29.1 both parties to the arrangement are Obligors; or
23.29.2 in any other case such arrangement or contract is entered into
on an arm's length basis and is fair and equitable to such Group
member; or
23.29.3 it is pursuant to any other transaction expressly permitted
under the terms of the Finance Documents.
For the purposes of this Clause 23.29 "AFFILIATE" of the specified
person shall mean any other person directly or indirectly controlling or
controlled by or under common control with such specified person or
which is a director, officer or partner (limited or general) of such
specified person; for the purposes of this definition "control", when
used with respect of any specified person, means the possession, direct
or indirect, of the power to vote five per cent. (5%) or more of the
securities having ordinary voting power for the election of directors or
the power to direct or cause the direction of the management and
policies of such person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the
foregoing.
23.30 TREASURY TRANSACTIONS
No Obligor shall, and each Obligor shall procure that no Group member
shall, enter into any Treasury Transaction which is not a Permitted
Treasury Transaction.
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23.31 SUBORDINATED DEBT
No Obligor shall, and each Obligor shall procure that no Group member
shall, unless permitted under the Intercreditor Arrangements or this
Agreement, pay, prepay or repay or defease, exchange or repurchase any
amount under (a) the Mezzanine Credit Agreement or (b) any Intra-Group
Loan subordinated under the Intercreditor Arrangements or (c) the Senior
Subordinated Notes or (d) the Mirror Notes.
23.32 JOINT VENTURES
No Obligor shall, and each Obligor shall procure that no Group member
shall, enter into or acquire or subscribe (or agree to enter into or
acquire or subscribe) for any shares, stocks, securities or other
interest in or transfer of any assets to or lend to or guarantee or give
security for the obligations of any Joint Ventures without prior
consultation with the Agent and provided that the aggregate liability
and total exposure (including, without limitation, the aggregate of any
investment or contribution for the Joint Venture and the amount of any
liability, actual or contingent, of any member of the Group with respect
to the obligations of such Joint Venture) of the Group to all such Joint
Ventures shall not exceed (pounds sterling)250,000 at any one time.
23.33 YEAR 2000
The Parent shall procure that all computer hardware and software and any
equipment operated by electronic means ("COMPUTER SYSTEMS") used by any
member of the Group are Year 2000 compliant (that is, in relation to any
such Computer Systems that any reference to or use of a date before, on
or after 31 December 1999 in the operation of such Computer Systems will
not have an adverse effect on the use of such Computer Systems) provided
that this provision will only apply if the failure in question could be
reasonably be expected to have a Material Adverse Effect.
23.34 HEDGING
23.34.1 The Parent shall, within ninety days of the date hereof, procure
that the Borrower approved by the Agent shall enter into secured
hedging arrangements for a period of no less than three years
ranking pari passu with the claims of the Finance Parties under
the Finance Documents satisfactory to the Banks (acting
reasonably) with a Bank or Banks in order to fix or cap the
total interest cost of the Obligors in respect of at least 66%
of the drawndown amount of the aggregate of the Term A
Outstandings as at the date such hedging arrangements are
entered into.
23.34.2 The Parent shall, within ninety days of the end of the Term B
Availability Period, procure that the Borrower approved by the
Agent shall enter into secured hedging arrangements for a period
of no less than three years ranking pari passu with the claims
of the Finance Parties under the Finance Documents satisfactory
to the Banks (acting reasonably) with a Bank or Banks in order
to fix or cap the total interest cost of the Obligors in respect
of at least 66% of (i) the drawndown amount of the Term B
Outstandings and (ii) any amounts outstanding under the
Mezzanine Credit Agreement.
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23.35 THE PARENT
The Parent shall not carry on any business other than as holding company
of the Group and shall not own any assets other than its shareholding in
the Original Borrower and the Mirror Notes and shall not incur any
liabilities of any nature whatsoever save for (a) any Security
contemplated pursuant to the terms of this Agreement or the Mezzanine
Finance Documents; (b) its obligations under the Senior Subordinated
Notes; (c) professional fees and administration costs in the ordinary
course of business; (d) any liabilities under the Finance Documents and
Mezzanine Finance Documents and (e) any liabilities incurred pursuant to
Permitted Acquisitions.
23.36 THE ORIGINAL BORROWER
The Original Borrower shall not carry on any business other than as a
holding company of the Group and shall not own any assets other than its
shareholding in its subsidiaries and shall not incur any liabilities of
any nature whatsoever save for (a) any Security contemplated pursuant to
the terms of this Agreement or the Mezzanine Finance Documents; (b) its
obligations under the Mirror Notes; (c) professional fees and
administration costs in the ordinary course of business; and (d) the
intra-group loans referred to in Clause (a)(iii) of the definition of
Permitted Transactions.
23.37 ACCEDING GUARANTORS
The Parent shall use all reasonable endeavours to ensure that each
member of the Group does all that is necessary (including, without
limitation, by re-registering public companies as private companies) in
order to follow the procedures set out in Sections 155-158 of the
Companies ▇▇▇ ▇▇▇▇ (or its equivalent in any other jurisdiction) in
order to ensure that the it can become an Additional Guarantor.
23.38 MEDIGAS LIMITED
The Parent shall ensure that as soon as practicable after four (4) weeks
from the date hereof and no later than six (6) weeks from the date
hereof, Medigas Limited will accede as a Guarantor in accordance with
Clause 37 (Additional Guarantors) and enter into a Debenture.
24. EVENTS OF DEFAULT
Each of Clause 24.1 (Failure to Pay) to Clause 24.20 (Material Adverse
Change) describes circumstances which constitute an Event of Default for
the purposes of this Agreement.
24.1 FAILURE TO PAY
Any amount due from an Obligor or the Obligors under the Finance
Documents is not paid at the time, in the currency and in the manner
specified herein unless such failure to pay is caused by technical
difficulties with the banking system in relation to the transmission of
funds and payment is made within three Business Days of the due date.
24.2 MISREPRESENTATION
Any representation or statement made or deemed to be made by an Obligor
in any Finance Document or in any notice or other document, certificate
or statement delivered by it pursuant thereto or in connection therewith
is or proves to have been
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incorrect or misleading in any material respect when made or deemed to
be made and if the circumstances causing such misrepresentation are
reasonably capable of remedy, such Obligor shall have failed to remedy
such circumstances within 28 days of receipt by it of written notice
from the Agent requiring such circumstances to be remedied.
24.3 BREACH OF SPECIFIC COVENANTS
At any time any of the requirements of Clause 22.1 (Financial
Covenants), Clause 23.5 (Claims Pari Passu), Clause 23.16 (Negative
Pledge), Clause 23.20 (Disposals), Clause 23.24 (Dividends,
Distributions and Interest), Clause 23.25 (Share Capital) or Clause
23.26 (Amendments) are not satisfied.
24.4 BREACH OF OTHER OBLIGATIONS
An Obligor fails duly to perform or comply with any other obligation
expressed to be assumed by it in the Finance Documents and such failure,
if capable of remedy, is not remedied within 28 days after the earlier
to occur of the date the Agent has given notice thereof to the Parent or
such Obligor and the date the Obligor or the Parent has actual knowledge
and if in the opinion of the Agent, acting reasonably, the circumstances
causing such breach are reasonably capable of remedy, such Obligor shall
have failed to remedy such circumstances within 28 days of receipt by it
of written notice from the Agent requiring such circumstances to be
remedied.
24.5 CROSS DEFAULT
Any Financial Indebtedness of any Material Subsidiary is not paid when
due, any Financial Indebtedness of any Material Subsidiary is declared
to be or otherwise becomes due and payable prior to its specified
maturity by reason of a default (however described), any commitment for
any Financial Indebtedness of any Material Subsidiary is cancelled or
suspended by a creditor of any Material Subsidiary by reason of a
default (however described) or any creditor of any Material Subsidiary
becomes entitled to declare or demand any Financial Indebtedness of any
Material Subsidiary due and payable prior to its specified maturity by
reason of a default (however described), provided that it shall not
constitute an Event of Default under this Clause 24.5 (Cross Default) if
the aggregate amount of all such Financial Indebtedness is less than
(pounds sterling)200,000.
24.6 INSOLVENCY AND RESCHEDULING
Any Material Subsidiary ceases or suspends generally payment of its
debts or publicly announces an intention to do so (or is deemed for the
purposes of any law applicable to it to be) or is unable to pay its
debts as they fall due or commences negotiations with or makes a
proposal to any one or more of its creditors with a view to the
readjustment or rescheduling of all or a substantial part of its
indebtedness or makes a general assignment for the benefit of or a
composition with its creditors or a moratorium is declared in respect of
all or a substantial part of the indebtedness of any Material
Subsidiary.
24.7 INSOLVENCY PROCEEDINGS
Any Material Subsidiary takes any corporate action or other steps are
taken or formal insolvency proceedings are started (whether by way of
voluntary arrangement, scheme
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of arrangement or otherwise) (save for any pursuant to a solvent
reorganisation previously approved in writing by an Instructing Group)
or for the appointment of a liquidator, receiver, administrator,
administrative receiver, conservator, custodian, trustee or similar
officer of it or of any or all of its revenues and assets (or any event
occurs or proceedings are taken with respect to any Group member which
has a similar or equivalent effect to any of the foregoing in this
Clause 24.7) PROVIDED THAT it shall not constitute an Event of Default
under this Clause 24.7 if a petition is presented in an winding-up
proceeding of a Material Subsidiary and such petition is discharged
within 14 days of being presented.
24.8 EXECUTION OR DISTRESS
Any execution or distress is levied against, or any encumbrancer(s) take
possession of, the whole or any part of, the property, undertaking or
assets of any Material Subsidiary or any event occurs which under the
laws of any jurisdiction has a similar or analogous effect in respect of
indebtedness exceeding (pounds sterling)200,000 (or its equivalent) in
aggregate at any time and which, in any case, is not stayed or
discharged within 21 days after such levy, taking of possession or
effect and during such 21 day period is contested in good faith by
appropriate means diligently pursued.
24.9 FAILURE TO COMPLY WITH FINAL JUDGMENT
Any Material Subsidiary fails to comply with or pay any sum due from it
or them under any final judgment or any final order made or given by any
court of competent jurisdiction when such sums exceed (pounds
sterling)200,000 (or its equivalent) in aggregate at any time.
24.10 GOVERNMENTAL INTERVENTION
By or under the authority of any government:
24.10.1 the management of any Material Subsidiary is wholly or partially
displaced or the authority of any Material Subsidiary in the
conduct of its business is wholly or partially curtailed; or
24.10.2 all or a majority of the issued shares of any Material
Subsidiary or the whole or any material part of its revenues or
assets is seized, nationalised, expropriated or compulsorily
acquired.
24.11 OWNERSHIP OF THE OBLIGORS
After the date hereof, any Obligor (other than the Parent) ceases to be
a wholly-owned subsidiary of the Parent, except where such disposal is
permitted hereunder and in the case of the Original Borrower except
where provided under the Warrant Document and in respect of the
Management Options.
24.12 THE GROUP'S BUSINESS
Except by reason of a Permitted Disposal, the Group as a whole ceases to
carry on the business it carries on at the date hereof or enters into
any unrelated business.
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24.13 REPUDIATION
(1) Any Finance Document or Acquisition Document or the Voting Trust
Agreement or the security intended to be constituted by or the
subordination effected under any of the Finance Documents is repudiated
by any Party (other than a Finance Party) or (2) any Party (other than a
Finance Party) does or causes to be done any act or thing reasonably
evidencing an intention to repudiate any Finance Document or any such
security or subordination effected under any of the Finance Documents or
(3) any Finance Document or Acquisition Document is not or ceases to be
in full force and effect for a continuous period of 28 days Provided
that any circumstances causing such Finance Document or Acquisition
Document to cease to be in full force and effect are capable of remedy,
such Party shall have failed to remedy such circumstances within 28 days
of receipt by it of written notice from the Agent requiring such
circumstances to be remedied or (4) the validity or applicability
thereof to any sums due or to become due thereunder is disaffirmed by or
on behalf of any Obligor.
24.14 ILLEGALITY
24.14.1 At any time any Obligor no longer has the legal power to perform
its obligations under the Finance Documents to which it is a
party or to own its assets or to carry on its business or at any
time it is or becomes unlawful for an Obligor to perform or
comply with any or all of its obligations under any Finance
Document to which it is a party or any of the obligations of an
Obligor thereunder are not or cease to be legal, valid, binding
and enforceable (except as provided in the Legal Reservations)
and if capable of remedy such Obligor shall have failed to
remedy such circumstances with 14 days of receipt by it of
written notice from the Agent requiring such circumstances to be
remedied.
24.14.2 At any time it is or becomes unlawful for any Party to perform
or comply with any or all of its obligations under any
Acquisition Document or
24.14.3 At any time any of the obligations of any person party to any
Acquisition Document are not or cease to be legal, valid,
binding and enforceable, which in each case could be reasonably
expected to have a Material Adverse Effect.
24.15 AUDITOR'S QUALIFICATION
The auditors of the Parent or any Group member qualify their annual
audit report to the consolidated accounts of the Group or the
unconsolidated accounts of any Group member in a manner which is, in the
reasonable opinion of an Instructing Group, material in the context of
the Facilities.
24.16 ENVIRONMENTAL
Any Group member breaches any Environmental Law or any Environmental
Claim is made or threatened against any Group member which, in either
case, could reasonably be expected (taking into account the likelihood
of success of such proceedings) to have a Material Adverse Effect.
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24.17 LITIGATION
24.17.1 Any litigation, arbitration, administrative proceedings or
governmental or regulatory investigations, proceedings or
disputes are commenced or threatened against any Group member or
its respective assets or revenues (taking into account the
likelihood of success of such proceedings) which could
reasonably be expected to have a Material Adverse Effect; or
24.17.2 the filing by any person other than the Initial Investors or a
Finance Party, whether at law or in equity, of any suit or
complaint (or, in the case of derivative or other actions, on
behalf of the TW US and the Parent or their successors or
assigns by any representative, trustee, agent, court or
administrative agency, receiver or administrator preliminary
proceedings seeking permission or authority for the filing of
any suit or complaint) with any court of competent jurisdiction,
or the commencement of any other legal proceeding or
administrative process seeking in any manner whatsoever to (i)
have the creation of the voting trust pursuant to the Voting
Trust Agreement or the transfer to such voting trust of all the
issued shares of the Parent and the Original Borrower declared
void or invalid or rescinded, (ii) challenge the validity,
enforceability or effectiveness of the Voting Trust Agreement or
the voting trust created hereby, or (iii) direct the Trustee (as
defined in the Voting Trust Agreement) to vote or refrain from
voting or to transfer or refrain from transferring the issued
shares of the Parent and the Original Borrower held in the
voting trust in any manner inconsistent in any respect with
Section 6 of the Voting Trust Agreement including injunctive or
similar equitable relief seeking to prevent the taking of any
action that requires the approval of the shareholders of the
Parent or the Original Borrower pending resolution of any legal
challenge involving the voting share created by the Voting Trust
Agreement, the Original Borrower Constitutional documents or the
rights of the Initial Investors under the Securities Purchase
Agreement or any agreement or instruct contemplated thereby.
24.18 SUBORDINATED DEBT
An event of default (howsoever described) occurs under the Mezzanine
Credit Agreement and is continuing unremedied or unwaived.
24.19 INTERCREDITOR ARRANGEMENTS
Any party to the Intercreditor Arrangements (other than any Finance
Party, the Mezzanine Agent or any Mezzanine Lender) fails to comply with
its obligations under the Intercreditor Arrangements.
24.20 VOTING TRUST
24.20.1 Any party to the Voting Trust Agreement (other than any Finance
Party, the Mezzanine Agent or any Mezzanine Lender) fails to
comply with its obligations under the Voting Trust Agreement;
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24.20.2 at any time the Voting Trust Agreement is amended, varied,
novated, supplemented or terminated or any rights are waived (in
a manner which is prejudicial to the Banks) thereunder without
the consent of the Banks.
24.21 CONTROL OF PARENT
The Trustee for and on behalf of the beneficiaries named therein (as
defined in the Voting Trust Agreement) ceases to control the Parent.
24.22 MATERIAL ADVERSE CHANGE
Any event or circumstance occurs which could reasonably be expected to
have a Material Adverse Effect.
24.23 ACCELERATION AND CANCELLATION
Upon the occurrence of an Event of Default which is continuing and at
any time thereafter, the Agent may (and, if so instructed by an
Instructing Group, shall) by notice to the Parent:
24.23.1 declare all or any part of the Advances to be immediately due
and payable (whereupon the same shall become so payable together
with accrued interest thereon and any other sums then owed by
the Obligors under the Finance Documents) or declare all or any
part of the Advances to be due and payable on demand of the
Agent; and/or
24.23.2 declare that any unutilised portion of the Facilities shall be
cancelled, whereupon the same shall be cancelled and the
Available Commitment of each Bank shall be reduced to zero;
and/or
24.23.3 exercise or direct the Security Agent to exercise all rights and
remedies.
24.24 ADVANCES DUE ON DEMAND
If, pursuant to Clause 24.23 (Acceleration and Cancellation), the Agent
declares all or any part of the Advances to be due and payable on demand
of the Agent, then, and at any time thereafter, the Agent may (and, if
so instructed by an Instructing Group, shall) by notice to the Parent:
24.24.1 require repayment of all or such part of the Advances on such
date as it may specify in such notice (whereupon the same shall
become due and payable on the date specified together with
accrued interest thereon and any other sums then owed by the
Obligors under the Finance Documents) or withdraw its
declaration with effect from such date as it may specify; and/or
24.24.2 select as the duration of any Interest Period or Term which
begins whilst such declaration remains in effect a period of six
months or less; and/or
24.24.3 declare that the Security Documents (or any of them) shall have
become enforceable.
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25. GUARANTEE AND INDEMNITY
25.1 PARENT GUARANTEE AND INDEMNITY
The Parent irrevocably and unconditionally:
25.1.1 guarantees to each Finance Party the due and punctual observance
and performance of all the terms, conditions and covenants on
the part of each Obligor (other than the Parent) contained in
any of the Finance Documents and agrees to pay from time to time
on demand by the Agent any and every sum or sums of money which
each Obligor (other than the Parent) is at any time liable to
pay to any Finance Party under or pursuant to any of the Finance
Documents and which has become due and payable but has not been
paid at the time such demand is made; and
25.1.2 agrees as a primary obligation to indemnify each Finance Party
from time to time on demand by the Agent from and against any
loss incurred by any Finance Party as a result of any of the
obligations of each Obligor (other than the Parent) under or
pursuant to any of the Finance Documents being or becoming void,
voidable, unenforceable or ineffective as against such Obligor
for any reason whatsoever, whether or not known to any Finance
Party or any other person, the amount of such loss being the
amount which the person or persons suffering it would otherwise
have been entitled to recover from such Obligor.
25.2 GROUP GUARANTEE AND INDEMNITY
Each Guarantor other than the Parent irrevocably and unconditionally:
25.2.1 guarantees to each Finance Party the due and punctual observance
and performance of all the terms, conditions and covenants on
the part of each Obligor (other than itself) contained in any of
the Finance Documents and agrees to pay from time to time on
demand by the Agent any and every sum or sums of money which
each Obligor (other than itself) is at any time liable to pay to
any Finance Party under or pursuant to any of the Finance
Documents and which has become due and payable but has not been
paid at the time such demand is made; and
25.2.2 agrees as a primary obligation to indemnify each Finance Party
from time to time on demand by the Agent from and against any
loss incurred by any Finance Party as a result of any of the
obligations of each Obligor (other than itself) under or
pursuant to any of the Finance Documents being or becoming void,
voidable, unenforceable or ineffective as against such Obligor
for any reason whatsoever, whether or not known to any Finance
Party or any other person, the amount of such loss being the
amount which the person or persons suffering it would otherwise
have been entitled to recover from such Obligor.
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25.3 ADDITIONAL SECURITY
The obligations of each Guarantor herein contained shall be in addition
to and independent of every other security which any Finance Party may
at any time hold in respect of any of any Obligor's obligations under
the Finance Documents.
25.4 CONTINUING OBLIGATIONS
The obligations of each Guarantor herein contained shall constitute and
be continuing obligations notwithstanding any settlement of account or
other matter or thing whatsoever and shall not be considered satisfied
by any intermediate payment or satisfaction of all or any of the
obligations of the Obligors under the Finance Documents and shall
continue in full force and effect until final payment in full of all
amounts owing by any Obligor under the Finance Documents and total
satisfaction of all the Obligors' actual and contingent obligations
thereunder.
25.5 OBLIGATIONS NOT DISCHARGED
Neither the obligations of each Guarantor herein contained nor the
rights, powers and remedies conferred in respect of each Guarantor upon
any Finance Party by any Finance Document or by law shall be discharged,
impaired or otherwise affected by:
25.5.1 any insolvency proceeding in respect of any Obligor or any other
person or any change in its status, function, control or
ownership;
25.5.2 any of the obligations of any Obligor or any other person under
any Finance Document or under any other security taken in
respect of any of its obligations under any Finance Document
being or becoming illegal, invalid, unenforceable or ineffective
in any respect;
25.5.3 time or other indulgence being granted or agreed to be granted
to any Obligor in respect of its obligations under any Finance
Document or under any such other security;
25.5.4 any amendment to, or any variation, waiver or release of, any
obligation of any Obligor under any Finance Document or under
any such other security;
25.5.5 any failure to take, or fully to take, any security contemplated
hereby or otherwise agreed to be taken in respect of any
Obligor's obligations under any Finance Document;
25.5.6 any failure to realise or fully to realise the value of, or any
release, discharge, exchange or substitution of, any security
taken in respect of any Obligor's obligations under any Finance
Document; or
25.5.7 any other act, event or omission which, but for this Clause 25.5
(Obligations not Discharged) might operate to discharge, impair
or otherwise affect any of the obligations of each Guarantor
contained in any Finance Document or any of the rights, powers
or remedies conferred upon any of the Finance Parties by any
Finance Document or by law.
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25.6 SETTLEMENT CONDITIONAL
Any settlement or discharge between an Obligor and any of the Finance
Parties shall be conditional upon no security or payment to any Finance
Party by an Obligor or any other person on behalf of an Obligor being
avoided or reduced by virtue of any laws relating to bankruptcy,
insolvency, liquidation or similar laws of general application and, if
any such security or payment is so avoided or reduced, each Finance
Party shall be entitled to recover the value or amount of such security
or payment from such Obligor subsequently as if such settlement or
discharge had not occurred.
25.7 EXERCISE OF RIGHTS
No Finance Party shall be obliged before exercising any of the rights,
powers or remedies conferred upon them in respect of any Guarantor by
this Agreement or by law:
25.7.1 to make any demand of any Obligor;
25.7.2 to take any action or obtain judgment in any court against any
Obligor;
25.7.3 to make or file any claim or proof in any insolvency proceedings
of any Obligor; or
25.7.4 to enforce or seek to enforce any other security taken in
respect of any of the obligations of any Obligor under any
Finance Document.
25.8 DEFERRAL OF GUARANTOR'S RIGHTS
Each of the Guarantors agrees that, so long as any amounts are or may be
owed by an Obligor under any Finance Document or an Obligor is under any
actual or contingent obligations under any Finance Document, it shall
not exercise any rights which it may at any time have by reason of
performance by it of its obligations under any Finance Document:
25.8.1 to be indemnified by an Obligor; and/or
25.8.2 to claim any contribution from any other guarantor of any
Obligor's obligations under any Finance Document; and/or
25.8.3 to take the benefit (in whole or in part and whether by way of
subrogation or otherwise) of any rights of the Finance Parties
under any Finance Document or of any other security taken
pursuant to, or in connection with, any Finance Document by all
or any of the Finance Parties.
25.9 SUSPENSE ACCOUNTS
All moneys received, recovered or realised by a Bank by virtue of Clause
25.1 (Parent Guarantee and Indemnity) or Clause 25.2 (Group Guarantee
and Indemnity) may, in that Bank's discretion, in order to preserve the
rights of the Bank to prove for the full amount of all its claim be
credited to a suspense or impersonal account and may be held in such
account for so long as such Bank thinks fit pending the application from
time to time (as such Bank may think fit) of such moneys in or towards
the payment
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and discharge of any amounts owing by an Obligor to such Bank under any
Finance Document.
25.10 AMENDMENTS BINDING
Without prejudice to the other provisions of Clause 25 (Guarantee and
Indemnity), each Guarantor hereby confirms that if the Parent and the
Finance Parties or any of them enter into any agreement or other
arrangement, including (without limitation) any amendment or supplement
to or restatement of this Agreement or the Finance Documents or any of
its or their provisions, howsoever fundamental, then the Parent's
execution of any such agreement or other arrangement, whether or not
expressly made or purportedly made on behalf of the Guarantors, shall
bind each of the Guarantors and the guarantee contained in Clause 25
(Guarantee and Indemnity) shall continue in full force and effect
without the need to obtain any confirmation or acknowledgement from the
Guarantors or any of them that their guarantee continues in full force
and effect and applies to the Guarantor's liabilities under the Finance
Documents as amended, supplemented or restated in accordance with the
agreement of the Parent.
26. COMMITMENT COMMISSION AND FEES
26.1 COMMITMENT COMMISSION ON THE REVOLVING FACILITY
The Parent (on behalf of itself and the Borrowers) shall pay to the
Agent for account of each Bank a commitment commission on the amount of
such Bank's Available Revolving Commitment from day to day during the
period beginning on the date hereof and ending on the Revolving
Termination Date, such commitment commission to be calculated at the
rate of 0.75 per cent. per annum and to be payable in arrear on the last
day of each successive period of three months which ends during such
period and on the Revolving Termination Date.
26.2 COMMITMENT COMMISSION ON THE TERM FACILITY
The Parent (on behalf of itself and the Borrowers) shall pay to the
Agent for account of each Bank a commitment commission on the amount of
such Bank's Available Term Commitment from day to day from the date
hereof until the end of the Term Availability Period, such commitment
commission to be calculated at the rate of 0.75 per cent. per annum and
to be payable on the last day of the Term Availability Period.
26.3 ARRANGEMENT FEE
The Parent (on behalf of itself and the Original Borrower) shall pay to
the Arranger the fees specified in the fee letter dated on or about the
date hereof from the Arranger to the Parent at the times, and in the
amounts, specified in such letter. The Parent acknowledges that it has
received a copy of and consents to the terms of such letter.
26.4 AGENCY FEE
The Parent (on behalf of itself and the Original Borrower) shall pay to
the Agent for its own account the agency fees specified in the agency
fee letter dated on or about the date hereof from the Agent to the
Parent at the times, and in the amounts, specified in such letter. The
Parent acknowledges that it has received a copy of and consents to the
terms of such letter.
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26.5 UNDERWRITING FEE
The Parent (on behalf of itself and the Original Borrower) shall pay to
each Underwriter the fees specified in the fee letter dated on or about
the date hereof from the Underwriter to the Parent at the times, and in
the amounts, specified in such letter. The Parent acknowledges that it
has received a copy of and consents to the terms of such letter.
27. COSTS AND EXPENSES
27.1 TRANSACTION EXPENSES
The Parent shall (on behalf of itself and the Borrower), from time to
time on demand of the Agent, reimburse each of the Agent, the Security
Agent and the Arranger and any of their affiliates (on a full indemnity
basis whether or not any of the Facilities are drawn down or utilised)
for all reasonable costs and expenses (including reasonable legal fees)
together with any VAT thereon incurred by it in connection with:
27.1.1 any due diligence carried out by it or on its behalf in
connection with the Finance Documents and the transactions
contemplated thereby;
27.1.2 the negotiation, preparation, execution and perfection of the
Finance Documents, any other document referred to in the Finance
Documents and the completion of the transactions therein
contemplated; and
27.1.3 the syndication of the Facilities.
27.2 PRESERVATION AND ENFORCEMENT OF RIGHTS
The Parent shall (on behalf of itself and the Borrower), from time to
time on demand of the Agent or Security Agent, reimburse the Finance
Parties for all costs and expenses (including legal fees) on a full
indemnity basis together with any VAT thereon incurred in or in
connection with the preservation and/or enforcement of any of the rights
of the Finance Parties under the Finance Documents and any document
referred to in the Finance Documents (including, without limitation, any
costs and expenses relating to any investigation as to whether or not an
Event of Default might have occurred or is likely to occur or any steps
necessary or desirable in connection with any proposal for remedying or
otherwise resolving an Event of Default or Potential Event of Default).
27.3 STAMP TAXES
The Parent shall (on behalf of itself and the Borrower) pay all stamp,
registration and other taxes to which the Finance Documents, any other
document referred to in the Finance Documents (other than any Transfer
Certificate) or any judgment given in connection therewith is or at any
time may be subject and shall (on behalf of itself and the Borrowers),
from time to time on demand of the Agent, indemnify the Finance Parties
against any liabilities, costs, claims and expenses resulting from any
failure to pay or any delay in paying any such tax.
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27.4 AMENDMENT COSTS
If an Obligor requests any amendment, waiver or consent then the Parent
shall (on behalf of such Obligor), within five Business Days of demand
by the Agent, reimburse the Finance Parties for all costs and expenses
reasonably incurred (including legal fees) together with any VAT thereon
incurred by such person in responding to or complying with such request.
27.5 BANKS' LIABILITIES FOR COSTS
If the Parent fails to perform any of its obligations under this Clause
27 (Costs and Expenses), each Bank shall, in its Proportion, indemnify
each of the Agent, the Security Agent and the Arranger against any loss
incurred by any of them (or their affiliates, in the case of costs and
expenses referred to in Clause 27.1 (Transaction Expenses)) as a result
of such failure.
28. DEFAULT INTEREST AND BREAK COSTS
28.1 DEFAULT INTEREST PERIODS
If any sum due and payable by an Obligor hereunder is not paid on the
due date therefor in accordance with Clause 31 (Payments) or if any sum
due and payable by an Obligor under any judgment of any court in
connection herewith is not paid on the date of such judgment, the period
beginning on such due date or, as the case may be, the date of such
judgment and ending on the date upon which the obligation of such
Obligor to pay such sum is discharged shall be divided into successive
periods, each of which (other than the first) shall start on the last
day of the preceding such period and the duration of each of which shall
(except as otherwise provided in this Clause 28 (Default Interest and
Break Costs)) be selected by the Agent.
28.2 DEFAULT INTEREST
An Unpaid Sum shall bear interest during each Interest Period in respect
thereof at the rate per annum which is two per cent. per annum above the
percentage rate which would apply to an Advance in the amount and
currency of such Unpaid Sum and for the same Interest Period, PROVIDED
THAT if such Unpaid Sum relates to an Advance which became due and
payable on a day other than the last day of an Interest Period or Term
relating thereto:
28.2.1 the first Interest Period applicable to such Unpaid Sum shall be
of a duration equal to the unexpired portion of the current
Interest Period or Term relating to that Advance; and
28.2.2 the percentage rate of interest applicable thereto from time to
time during such period shall be that which exceeds by one per
cent. the rate which would have been applicable to it had it not
so fallen due, save that the Margin shall be, or be deemed to
be, the highest rate specified in the definition thereof.
Where an Unpaid Sum does not relate to an Advance, interest
shall be calculated by reference to the Applicable B Margin.
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28.3 PAYMENT OF DEFAULT INTEREST
Any interest which shall have accrued under Clause 28.2 (Default
Interest) in respect of an Unpaid Sum shall be due and payable and shall
be paid by the Obligor owing such Unpaid Sum on the last day of each
Interest Period in respect thereof or on such other dates as the Agent
may specify by notice to such Obligor.
28.4 BREAK COSTS
If any Bank or the Agent on its behalf receives or recovers all or any
part of an Advance or Unpaid Sum otherwise than on the last day of an
Interest Period or Term relating thereto, the Agent shall calculate (a)
the additional interest which would have been payable on the amount so
received or recovered had it been received or recovered on the last day
of that Interest Period or Term and (b) the amount of interest which in
the opinion of the Agent (acting reasonably) would have been payable to
the Agent on the last day of that Interest Period or Term in respect of
a deposit in the currency of the amount so received or recovered equal
to the amount so received or recovered placed by it with a prime bank in
London for a period starting on the third Business Day following the
date of such receipt or recovery and ending on the last day of that
Interest Period or Term. If (a) exceeds (b), then the Parent shall pay
to the Agent on demand for account of such Bank an amount equal to such
excess.
29. PARENT'S INDEMNITIES
29.1 PARENT'S INDEMNITY
The Parent undertakes to indemnify:
29.1.1 each Finance Party against any cost, claim, loss, expense
(including legal fees) or liability together with any VAT
thereon, whether or not reasonably foreseeable, which it may
sustain or incur as a consequence of the occurrence of any Event
of Default or any default by any Obligor in the performance of
any of the obligations expressed to be assumed by it in any
Finance Document save to the extent that such cost, claim, loss,
expense or liability has arisen as a result of the negligence or
wilful default or wilful breach of obligation of such Finance
Party;
29.1.2 the Agent against any cost or loss it may suffer or incur as a
result of its entering into, or performing, any foreign exchange
contract for the purposes of Clause 31 (Payments);
29.1.3 each Bank against any cost or loss it may suffer under Clause
27.5 (Banks' Liabilities for Costs) or Clause 34.5
(Indemnification) save to the extent that such cost or loss has
arisen as a result of the negligence or wilful default or wilful
breach of obligation of such Bank;
29.1.4 each Bank against any cost or loss it may suffer or incur as a
result of its funding or making arrangements to fund its portion
of an Advance requested by any Borrower but not made by reason
of the operation of any one or more of the provisions hereof;
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29.1.5 each Finance Party and in each case each of their affiliates and
each of their respective officers, directors, employees, agents,
advisors and representatives (each, an "INDEMNIFIED PARTY") from
and against any and all claims, damages, losses, liabilities,
costs and expenses (including, without limitation, fees and
disbursements of legal counsel), joint or several, that may be
reasonably incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection
with or relating to any official investigation, litigation or
proceeding or the preparation of any defence with respect
thereto, arising out of or in connection with or relating to the
Finance Documents or the transactions contemplated hereby or
thereby or any use made or proposed to be made with the proceeds
of the Facilities, whether or not such official investigation,
litigation or proceeding is brought by a member of the Group,
any shareholder or creditors of any member of the Group, an
Indemnified Party or any other person, except to the extent that
such claim, damage, loss, liability, cost or expense is found in
a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party's
negligence or wilful misconduct or wilful breach of obligation;
and
29.1.6 each Bank against any cost or loss it may suffer or any
reduction in its return on capital that it would have been able
to obtain but for entering into or performing its obligations
under this Agreement as a result of any minimum reserve
requirements imposed on it by the European Central Bank in
relation to an Advance or any funding of an Advance.
29.2 CURRENCY INDEMNITY
If any sum (a "SUM") due from an Obligor under the Finance Documents or
any order, judgment, award or decision given or made in relation thereto
has to be converted from the currency (the "FIRST CURRENCY") in which
such Sum is payable into another currency (the "SECOND CURRENCY") for
the purpose of:
29.2.1 making or filing a claim or proof against such Obligor;
29.2.2 obtaining an order, judgment, award or decision in any court,
arbitral proceedings or other tribunal; or
29.2.3 enforcing any order, judgment, award or decision given or made
in relation thereto,
the Parent shall indemnify each person to whom such Sum is due from and
against any loss suffered or incurred as a result of any discrepancy
between (a) the rate of exchange used for such purpose to convert such
Sum from the First Currency into the Second Currency and (b) the rate or
rates of exchange available to such person at the time of receipt of
such Sum.
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29.3 PARENT'S INDEMNITY FROM BORROWERS
If the Parent is required to make any payment under Clause 29.1
(Parent's Indemnity), then each Borrower agrees to indemnify the Parent
on demand in respect of any such payment.
30. CURRENCY OF ACCOUNT AND PAYMENT
30.1 CURRENCY OF ACCOUNT
Sterling is the currency of account and payment for each and every sum
at any time due from an Obligor hereunder, PROVIDED THAT:
30.1.1 each payment in respect of costs and expenses shall be made in
the currency in which the same were incurred; and
30.1.2 each payment pursuant to Clause 14.2 (Tax Indemnity) or Clause
16.1 (Increased Costs) shall be made in the currency specified
by the party claiming thereunder.
31. PAYMENTS
31.1 PAYMENTS TO THE AGENT
On each date on which this Agreement requires an amount to be paid by an
Obligor or a Bank, such Obligor or, as the case may be, such Bank shall
make the same available to the Agent for value on the due date at such
time and in such funds and to such account with such bank as the Agent
shall specify from time to time.
31.2 PAYMENTS BY THE AGENT
Save as otherwise provided herein, each payment received by the Agent
for the account of another person pursuant to Clause 31.1 (Payments to
the Agent) shall:
31.2.1 in the case of a payment received for the account of a Borrower,
be made available by the Agent to such Borrower by application:
(a) first, in or towards payment (on the date, and in the
currency and funds, of receipt) of any amount then due
from such Borrower hereunder to the person from whom the
amount was so received or in or towards the purchase of
any amount of any currency to be so applied; and
(b) secondly, in or towards payment (on the date, and in the
currency and funds, of receipt) to such account with
such bank in the principal financial centre of the
country of the currency of such payment as such Borrower
(or the Parent) shall have previously notified to the
Agent for this purpose; and
31.2.2 in the case of any other payment, be made available by the Agent
to the person for whose account such payment was received (in
the case of a Bank, for the account of the relevant Facility
Office) for value as soon as reasonably practicable after
receipt by the Agent by transfer to such account of such person
with such bank in the principal financial centre of the country
of the
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currency of such payment as such person shall have previously
notified to the Agent.
31.3 NO SET-OFF
All payments required to be made by an Obligor under any Finance
Document shall be calculated without reference to any set-off or
counterclaim and shall be made free and clear of and without any
deduction for or on account of any set-off or counterclaim.
31.4 CLAWBACK
Where a sum is to be paid under a Finance Document to the Agent for
account of another person, the Agent shall not be obliged to make the
same available to that other person or to enter into or perform any
exchange contract in connection therewith until it has been able to
establish to its satisfaction that it has actually received such sum,
but if it does so and it proves to be the case that it had not actually
received such sum, then the person to whom such sum or the proceeds of
such exchange contract was so made available shall on request refund the
same to the Agent together with an amount sufficient to indemnify the
Agent against any cost or loss it may have suffered or incurred by
reason of its having paid out such sum or the proceeds of such exchange
contract prior to its having received such sum.
31.5 PARTIAL PAYMENTS
If and whenever a payment is made by an Obligor hereunder and the Agent
receives an amount less than the due amount of such payment the Agent
may apply the amount received towards the obligations of the Obligors
under this Agreement in the following order:
31.5.1 FIRST, in or towards payment of any unpaid costs, fees and
expenses of each of the Agent, the Security Agent and the
Arranger;
31.5.2 SECOND, in or towards payment pro rata of any accrued interest,
commitment commission, payable to any Bank hereunder due but
unpaid;
31.5.3 THIRD, in or towards payment pro rata of any Outstandings due
but unpaid; and
31.5.4 FOURTH, in or towards payment pro rata of any other sum due but
unpaid.
31.6 VARIATION OF PARTIAL PAYMENTS
The order of partial payments set out in Clause 31.5 (Partial Payments)
shall override any appropriation made by the Obligor to which the
partial payment relates but the order set out in sub-clauses 31.5.2,
31.5.3 and 31.5.4 of Clause 31.5 (Partial Payments) may be varied if
agreed by all the Banks.
32. SET-OFF
32.1 CONTRACTUAL SET-OFF
Following an Event of Default which is continuing each Obligor
authorises each Bank to apply any credit balance to which such Obligor
is entitled on any account of such Obligor with such Bank in
satisfaction of any sum due and payable from such Obligor
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to such Bank under any Finance Document but unpaid. For this purpose,
each Bank is authorised to purchase with the moneys standing to the
credit of any such account such other currencies as may be necessary to
effect such application.
32.2 SET-OFF NOT MANDATORY
No Bank shall be obliged to exercise any right given to it by Clause
32.1 (Contractual Set-off).
33. SHARING
33.1 PAYMENTS TO BANKS
If a Bank (a "RECOVERING BANK") applies any receipt or recovery from an
Obligor to a payment due under this Agreement and such amount is
received or recovered other than in accordance with Clause 31
(Payments), then such Recovering Bank shall:
33.1.1 notify the Agent of such receipt or recovery;
33.1.2 at the request of the Agent, promptly pay to the Agent an amount
(the "SHARING PAYMENT") equal to such receipt or recovery less
any amount which the Agent determines may be retained by such
Recovering Bank as its share of any payment to be made in
accordance with Clause 31.5 (Partial Payments).
33.2 REDISTRIBUTION OF PAYMENTS
The Agent shall treat the Sharing Payment as if it had been paid by the
relevant Obligor and distribute it between the Finance Parties (other
than the Recovering Bank) in accordance with Clause 31.5 (Partial
Payments).
33.3 RECOVERING BANK'S RIGHTS
The Recovering Bank will be subrogated to the rights of the parties
which have shared in a redistribution pursuant to Clause 33.2
(Redistribution of Payments) in respect of the Sharing Payment (and the
relevant Obligor shall be liable to the Recovering Bank in an amount
equal to the Sharing Payment).
33.4 REPAYABLE RECOVERIES
If any part of the Sharing Payment received or recovered by a Recovering
Bank becomes repayable and is repaid by such Recovering Bank, then:
33.4.1 each party which has received a share of such Sharing Payment
pursuant to Clause 33.2 (Redistribution of Payments) shall, upon
request of the Agent, pay to the Agent for account of such
Recovering Bank an amount equal to its share of such Sharing
Payment; and
33.4.2 such Recovering Bank's rights of subrogation in respect of any
reimbursement shall be cancelled and the relevant Obligor will
be liable to the reimbursing party for the amount so reimbursed.
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33.5 EXCEPTION
This Clause 33 (Sharing) shall not apply if the Recovering Bank would
not, after making any payment pursuant hereto, have a valid and
enforceable claim against the relevant Obligor.
33.6 RECOVERIES THROUGH LEGAL PROCEEDINGS
If any Bank intends to commence any action in any court or arbitral
proceedings it shall give prior notice to the Agent, the Security Agent
and the other Banks. If any Bank shall commence any action in any court
or arbitral proceedings to enforce its rights hereunder and, as a result
thereof or in connection therewith, receives any amount, then such Bank
shall not be required to share any portion of such amount with any Bank
which has the legal right to, but does not, join in such action or
commence and diligently prosecute a separate action to enforce its
rights in another court or arbitral proceedings.
34. THE AGENT, THE ARRANGER, THE UNDERWRITERS AND THE BANKS
34.1 APPOINTMENT OF THE AGENT
Each of the Arranger and the Banks hereby appoints the Agent to act as
its agent in connection with the Finance Documents and authorises the
Agent to exercise such rights, powers, authorities and discretions as
are specifically delegated to the Agent by the terms thereof together
with all such rights, powers, authorities and discretions as are
reasonably incidental thereto.
34.2 AGENT'S DISCRETIONS
The Agent may:
34.2.1 assume, unless it has, in its capacity as agent for the Banks,
received notice to the contrary from any other party hereto,
that (a) any representation made or deemed to be made by an
Obligor in connection with any Finance Document is true, (b) no
Event of Default or Potential Event of Default has occurred, (c)
no Obligor is in breach of or default under its obligations
under any Finance Document and (d) any right, power, authority
or discretion vested herein upon an Instructing Group, the Banks
or any other person or group of persons has not been exercised;
34.2.2 assume that each Facility Office of each Bank is that notified
to it by such Bank in writing prior to the date hereof (or, in
the case of a Transferee, at the end of the Transfer Certificate
to which it is a party as Transferee) until it has received from
such Bank a notice designating some other office of such Bank to
replace such Facility Office and act upon any such notice until
the same is superseded by a further such notice;
34.2.3 engage and pay for the advice or services of any lawyers,
accountants, surveyors or other experts whose advice or services
may to it seem necessary, expedient or desirable and rely upon
any advice so obtained;
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34.2.4 rely as to any matters of fact which might reasonably be
expected to be within the knowledge of an Obligor upon a
certificate signed by or on behalf of such Obligor;
34.2.5 rely upon any communication or document believed by it to be
genuine;
34.2.6 refrain from exercising any right, power or discretion vested in
it as agent under any Finance Document unless and until
instructed by an Instructing Group as to whether or not such
right, power or discretion is to be exercised and, if it is to
be exercised, as to the manner in which it should be exercised;
34.2.7 refrain from acting in accordance with any instructions of an
Instructing Group to begin any legal action or proceeding
arising out of or in connection with any Finance Document until
it shall have received such security as it may require (whether
by way of payment in advance or otherwise) for all costs,
claims, losses, expenses (including legal fees) and liabilities
together with any VAT thereon which it will or may expend or
incur in complying with such instructions; and
34.2.8 assume (unless it has specific notice to the contrary) that any
notice or request made by the Parent is made on behalf of all
the Obligors.
34.3 AGENT'S OBLIGATIONS
The Agent shall:
34.3.1 promptly inform each Bank of the contents of any notice or
document received by it in its capacity as Agent from an Obligor
under any Finance Document;
34.3.2 promptly notify each Bank of the occurrence of any Event of
Default or any default by an Obligor in the due performance of
or compliance with its obligations under any Finance Document of
which the Agent has notice from any other party hereto;
34.3.3 save as otherwise provided herein, act as agent under any
Finance Document in accordance with any instructions given to it
by an Instructing Group, which instructions shall be binding on
the Arranger and the Banks; and
34.3.4 if so instructed by an Instructing Group, refrain from
exercising any right, power or discretion vested in it as agent
under any Finance Document.
The Agent's duties under the Finance Documents are solely mechanical and
administrative in nature.
34.4 EXCLUDED OBLIGATIONS
Notwithstanding anything to the contrary expressed or implied herein,
neither the Agent, any Underwriter nor the Arranger shall:
34.4.1 be bound to enquire as to (a) whether or not any representation
made or deemed to be made by an Obligor in connection with any
Finance Document
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is true, (b) the occurrence or otherwise of any Event of Default
or Potential Event of Default, (c) the performance by an Obligor
of its obligations under any Finance Document or (d) any breach
of or default by an Obligor of or under its obligations under
any Finance Document;
34.4.2 be bound to account to any Bank for any sum or the profit
element of any sum received by it for its own account;
34.4.3 be bound to disclose to any other person any information
relating to any member of the Group if (a) such person, on
providing such information, expressly stated to the Agent or, as
the case may be, the Arranger, that such information was
confidential or (b) such disclosure would or might in its
opinion constitute a breach of any law or be otherwise
actionable at the suit of any person;
34.4.4 be under any obligations other than those for which express
provision is made in any Finance Document; or
34.4.5 be or be deemed to be a fiduciary for any other party to any
Finance Document.
34.5 INDEMNIFICATION
Each Bank shall, in its Proportion, from time to time on demand by the
Agent, indemnify the Agent against any and all costs, claims, losses,
expenses (including legal fees) and liabilities together with any VAT
thereon which the Agent may incur, otherwise than by reason of its own
gross negligence or wilful misconduct, in acting in its capacity as
agent under any Finance Document (other than any which have been
reimbursed by the Parent pursuant to Clause 29.1 (Parent's Indemnity)).
34.6 EXCLUSION OF LIABILITIES
Except in the case of negligence or wilful default, none of the Agent,
the Underwriters and the Arranger accepts any responsibility:
34.6.1 for the adequacy, accuracy and/or completeness of the
Information Memorandum or any other information supplied by the
Agent or the Arranger, by an Obligor or by any other person in
connection with any Finance Document or any other agreement,
arrangement or document entered into, made or executed in
anticipation of, pursuant to or in connection with any Finance
Document;
34.6.2 for the legality, validity, effectiveness, adequacy or
enforceability of any Finance Document or any other agreement,
arrangement or document entered into, made or executed in
anticipation of, pursuant to or in connection with any Finance
Document; or
34.6.3 for the exercise of, or the failure to exercise, any judgement,
discretion or power given to any of them by or in connection
with any Finance Document or any other agreement, arrangement or
document entered into, made or
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executed in anticipation of, pursuant to or in connection with
any Finance Document.
Accordingly, none of the Agent, the Underwriters and the Arranger shall
be under any liability (whether in negligence or otherwise) in respect
of such matters, save in the case of negligence or wilful misconduct.
34.7 NO ACTIONS
Each of the Banks agree that it will not assert or seek to assert
against any director, officer or employee of the Agent, the Underwriters
or the Arranger any claim it might have against any of them in respect
of the matters referred to in Clause 34.6 (Exclusion of Liabilities).
34.8 BUSINESS WITH THE GROUP
The Agent and the Arranger may accept deposits from, lend money to and
generally engage in any kind of banking or other business with any
member of the Group.
34.9 RESIGNATION
The Agent, the Underwriters may resign its appointment hereunder at any
time without assigning any reason therefor by giving not less than
thirty days' prior notice to that effect to each of the other parties
hereto, provided that no such resignation shall be effective until a
successor for the Agent is appointed in accordance with the succeeding
provisions of this Clause 34 (The Agent, the Arrangers, the Underwriters
and the Banks).
34.10 SUCCESSOR AGENT
If the Agent gives notice of its resignation pursuant to Clause 34.9
(Resignation), then any reputable and experienced bank or other
financial institution in the United Kingdom may be appointed as a
successor to the Agent by an Instructing Group (who shall consult with
the Parent) during the period of such notice but, if no such successor
is so appointed, the Agent may appoint such a successor itself.
34.11 RIGHTS AND OBLIGATIONS
If a successor to the Agent is appointed under the provisions of Clause
34.10 (Successor Agent), then:
34.11.1 the retiring Agent shall be discharged from any further
obligation under any Finance Document but shall remain entitled
to the benefit of the provisions of this Clause 34 (The Agent,
the Arranger, the Underwriters and the Banks); and
34.11.2 its successor and each of the other parties to any Finance
Document shall have the same rights and obligations amongst
themselves as they would have had if such successor had been a
party to the Finance Documents.
34.12 OWN RESPONSIBILITY
It is understood and agreed by each Bank that at all times it has itself
been, and will continue to be, solely responsible for making its own
independent appraisal of and
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investigation into all risks arising under or in connection with the
Finance Documents including, but not limited to:
34.12.1 the financial condition, creditworthiness, condition, affairs,
status and nature of each member of the Group;
34.12.2 the legality, validity, effectiveness, adequacy and
enforceability of any Finance Documents and any other agreement,
arrangement or document entered into, made or executed in
anticipation of, pursuant to or in connection with any Finance
Document;
34.12.3 whether such Bank has recourse, and the nature and extent of
that recourse, against an Obligor or any other person or any of
their respective assets under or in connection with any Finance
Document, the transactions therein contemplated or any other
agreement, arrangement or document entered into, made or
executed in anticipation of, pursuant to or in connection with
any Finance Document; and
34.12.4 the adequacy, accuracy and/or completeness of the Information
Memorandum and any other information provided by the Agent, an
Underwriter or the Arranger, an Obligor, or by any other person
in connection with any Finance Document, the transactions
contemplated therein or any other agreement, arrangement or
document entered into, made or executed in anticipation of,
pursuant to or in connection with any Finance Document.
Accordingly, each Bank acknowledges to the Agent, the Underwriters and
the Arranger that it has not relied on and will not hereafter rely on
the Agent, the Underwriters and the Arranger or any of them in respect
of any of these matters.
34.13 AGENCY DIVISION SEPARATE
In acting as agent under the Finance Documents for the Banks, the Agent
shall be regarded as acting through its agency division which shall be
treated as a separate entity from any other of its divisions or
departments and, notwithstanding the foregoing provisions of this Clause
34 (The Agent, the Arranger, the Underwriters and the Banks), any
information received by some other division or department of the Agent
may be treated as confidential and shall not be regarded as having been
given to the Agent's agency division.
34.14 RELIANCE AND ENGAGEMENT LETTERS
Each Finance Party confirms each of the Arranger and the Agent has
authority to accept on its behalf the terms of any Reliance Letter or
engagement letters relating to the Reports or any reports or letters
provided by accountants in connection with the Finance Documents or the
transactions contemplated therein (including any net asset letter in
connection with financial assistance procedures) and to bind it in
respect of such Reports, reports or letters and to sign such letters on
its behalf and further confirms that it accepts the terms and
qualifications set out in such letters.
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35. ASSIGNMENTS AND TRANSFERS
35.1 BINDING AGREEMENT
This Agreement shall be binding upon and enure to the benefit of each
party hereto and its or any subsequent successors and Transferees.
35.2 NO ASSIGNMENTS AND TRANSFERS BY THE OBLIGORS
No Obligor shall be entitled to assign or transfer all or any of its
rights, benefits and obligations under the Finance Documents.
35.3 ASSIGNMENTS AND TRANSFERS BY BANKS
Any Bank may, at any time, assign all or any of its rights and benefits
under the Finance Documents or transfer in accordance with Clause 35.5
(Transfers by Banks) all or any of its rights, benefits and obligations
under the Finance Documents to a bank or financial institution, PROVIDED
THAT no such assignment or transfer may be made without prior
consultation with the Parent, except in the case of any such assignment
or transfer:
35.3.1 to any subsidiary or holding company, or to any subsidiary of
any holding company, of such Bank; or
35.3.2 to any other Bank or any subsidiary or holding company, or to
any subsidiary of any holding company, of any other Bank; or
35.3.3 when an Event of Default has occurred which is continuing.
35.4 ASSIGNMENTS BY BANKS
If any Bank assigns all or any of its rights and benefits under the
Finance Documents in accordance with Clause 35.3 (Assignments and
Transfers by Banks), then, unless and until the assignee has delivered a
notice to the Agent confirming in favour of the Agent, the Arranger, the
Security Agent, the other Banks that it shall be under the same
obligations towards each of them as it would have been under if it had
been an original party to the Finance Documents as a Bank (whereupon
such assignee shall become a party to the Finance Documents as a
"Bank"), the Agent, the Arranger, the Security Agent, the other Banks
shall not be obliged to recognise such assignee as having the rights
against each of them which it would have had if it had been such a party
to the Finance Documents.
35.5 TRANSFERS BY BANKS
If any Bank wishes to transfer all or any of its rights, benefits and/or
obligations under the Finance Documents as contemplated in Clause 35.3
(Assignments and Transfers by Banks), then such transfer may be effected
by the delivery to the Agent of a duly completed Transfer Certificate
executed by such Bank and the relevant Transferee in which event, on the
later of the Transfer Date specified in such Transfer Certificate and
the fifth Business Day after (or such earlier Business Day endorsed by
the Agent on such Transfer Certificate falling on or after) the date of
delivery of such Transfer Certificate to the Agent:
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35.5.1 to the extent that in such Transfer Certificate the Bank party
thereto seeks to transfer its rights, benefits and obligations
under the Finance Documents, each of the Obligors and such Bank
shall be released from further obligations towards one another
under the Finance Documents and their respective rights against
one another shall be cancelled (such rights and obligations
being referred to in this Clause 35.5 (Transfers by Banks) as
"DISCHARGED RIGHTS AND OBLIGATIONS");
35.5.2 each of the Obligors and the Transferee party thereto shall
assume obligations towards one another and/or acquire rights
against one another which differ from such discharged rights and
obligations only insofar as each such Obligor and such
Transferee have assumed and/or acquired the same in place of
each such Obligor and such Bank;
35.5.3 the Agent, the Security Agent, the Underwriters, the Arranger,
such Transferee, the other Banks shall acquire the same rights
and benefits and assume the same obligations between themselves
as they would have acquired and assumed had such Transferee been
an original party to the Finance Documents as a Bank with the
rights, benefits and/or obligations acquired or assumed by it as
a result of such transfer and to that extent the Agent, the
Security Agent, the Underwriters, the Arranger and the relevant
Bank shall each be released from further obligations to each
other under the Finance Documents; and
35.5.4 such Transferee shall become a party hereto as a "Bank".
35.6 ASSIGNMENT AND TRANSFER FEES
On the date upon which an assignment takes effect pursuant to Clause
35.4 (Assignments by Banks) or a transfer takes effect pursuant to
Clause 35.5 (Transfers by Banks) the relevant assignee or Transferee
shall pay to the Agent for its own account a fee of (pounds
sterling)1,000.
35.7 DISCLOSURE OF INFORMATION
Any Bank may disclose to any person:
35.7.1 to (or through) whom such Bank assigns or transfers (or may
potentially assign or transfer) all or any of its rights,
benefits and obligations under any Finance Document;
35.7.2 with (or through) whom such Bank enters into (or may potentially
enter into) any sub-participation in relation to, or any other
transaction under which payments are to be made by reference to,
any Finance Document or any Obligor; or
35.7.3 to whom information may be required to be disclosed by any
applicable law or any regulatory authority,
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such information about any Obligor or the Group and any Finance Document
as such Bank shall consider appropriate PROVIDED THAT, in relation to a
disclosure under sub-clauses 35.7.1 and 35.7.2, the person to whom such
information is to be given has entered into a Confidentiality
Undertaking.
35.8 LIMITATION OF SPECIFIED INDEMNITIES
If, at any time, any Bank assigns or transfers any of its rights,
benefits and obligations hereunder or transfers a Facility Office and by
reasons of circumstances either in effect at the time of such assignment
or transfer or which at such time are known to become effective at a
later date there would, but for this Clause 35.8 (Limitation of
Specified Indemnities), arise an obligation on the part of an Obligor
under Clause 14 (Taxes) or Clause 16.1 (Increased Costs) to pay to such
assignee or Transferee any amount in excess of the amount it would have
then been obliged to pay but for such assignment or transfer, then such
Obligor shall not be obliged to pay the amount of such excess PROVIDED
THAT this Clause 35.8 (Limitation of Specified Indemnities) shall not
apply to any assignment or transfer made pursuant to Clause 18
(Mitigation) or to any assignment or transfer made in each case with the
Parent's prior consent or to any assignment or transfer following an
Event of Default which is continuing.
35.9 TRANSFERS OF PART
Any transfer pursuant to Clause 35.5 (Transfers by Banks) of part (but
not the whole) of a Bank's Commitment shall be in a minimum amount of
(pounds sterling)5,000,000 and shall be such that the amount of the
transferring Bank's Commitment shall not be reduced to less than
(pounds sterling)5,000,000.
35.10 INTERCREDITOR ARRANGEMENTS AND SECURITY
35.10.1 Each assignee or Transferee from a Bank shall enter into a deed
of accession in the form set out in the Intercreditor
Arrangements.
35.10.2 Both the transferor or assignor Bank and the relevant Transferee
or assignee shall take all steps necessary to ensure the
transfer of the benefit of any security relating to the transfer
or assignment and shall share (in a proportion to be agreed) any
costs attributable to the transfer of such security.
36. ADDITIONAL BORROWERS
36.1 REQUEST FOR ADDITIONAL BORROWER
The Parent may request that any of its wholly-owned subsidiaries become
an Additional Borrower by delivering to the Agent a Borrower Accession
Memorandum and (to the extent legally possible) a Guarantor Accession
Memorandum duly executed by the Parent and such subsidiary, together
with the documents and other evidence listed in Schedule 8 (Additional
Conditions Precedent) in relation to such subsidiary. Such Additional
Borrower will provide to the extent legally possible the Security
reasonably requested by the Agent which Security shall be given in
accordance with Clause 23.10 (Security).
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36.2 BORROWER CONDITIONS PRECEDENT
A company, in respect of which the Parent has delivered a Borrower
Accession Memorandum to the Agent, shall become an Additional Borrower
and assume all the rights, benefits and obligations of a Borrower as if
it had been an Original Borrower on the date on which the Agent notifies
the Parent that:
36.2.1 an Instructing Group accepts the Parent's request in respect of
such subsidiary and confirms that such subsidiary is suitable
from a withholding tax position; and
36.2.2 the Agent has received, in form and substance satisfactory to
it, all documents and other evidence listed in Schedule 8
(Additional Conditions Precedent) in relation to such
subsidiary,
unless on such date an Event of Default or Potential Event of Default is
continuing or would occur as a result of such subsidiary becoming an
Additional Borrower.
36.3 RESIGNATION OF A BORROWER
If at any time a Borrower (other than the Parent) is under no actual or
contingent obligation under or pursuant to any Finance Document and such
resignation would not affect the legality, validity or enforceability of
any security contemplated by the Security Documents in respect of such
Borrower or its assets, the Parent may request that such Borrower shall
cease to be a Borrower by delivering to the Agent a Resignation Notice.
Such Resignation Notice shall be accepted by the Agent on the date on
which it notifies the Parent that it is satisfied that such Borrower is
under no actual or contingent obligation under or pursuant to any
Finance Document and such Borrower shall immediately cease to be a
Borrower and shall have no further rights, benefits or obligations
hereunder save for those which arose prior to such date.
37. ADDITIONAL GUARANTORS
37.1 OBLIGATION FOR ADDITIONAL GUARANTOR
The Parent shall ensure that any of its subsidiaries (except Dormant
Subsidiaries) to the extent legally possible become an Additional
Guarantor by delivering to the Agent a Guarantor Accession Memorandum
duly executed by the Parent and such subsidiary, together with the
documents and other evidence listed in Schedule 8 (Additional Conditions
Precedent) in relation to such subsidiary promptly following the
acquisition or creation of such subsidiary by any member of the Group.
Such Guarantor will provide to the extent legally possible the Security
reasonably requested by the Agent which Security shall be given in
accordance with Clause 23.10 (Security).
37.2 GUARANTOR CONDITIONS PRECEDENT
A company, in respect of which the Parent has delivered a Guarantor
Accession Memorandum to the Agent, shall became an Additional Guarantor
and assume all the rights, benefits and obligations of a Guarantor which
is not a Guarantor referred to in Clause 25.1 (Parent Guarantee and
Indemnity) or 25.2 (Group Guarantee and Indemnity) as if it had been an
original party hereto as a Guarantor but with the exceptions (if any)
stipulated in the Guarantor Accession Memorandum on the date on
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which the Agent receives, in form and substance satisfactory to it, all
the documents and other evidence listed in Schedule 8 (Additional
Conditions Precedent). The Agent shall notify the Parent when requested
to do so whether it has received all such documents in form and
substance satisfactory to it.
38. CALCULATIONS AND EVIDENCE OF DEBT
38.1 BASIS OF ACCRUAL
Interest and commitment commission shall accrue from day to day and
shall be calculated on the basis of a year of 365 days and the actual
number of days elapsed.
38.2 QUOTATIONS
If on any occasion a Reference Bank or Bank fails to supply the Agent
with a quotation required of it under the foregoing provisions of this
Agreement, the rate for which such quotation was required shall be
determined from those quotations which are supplied to the Agent,
provided that, in relation to determining LIBOR, this Clause 38.2
(Quotations) shall not apply if only one Reference Bank supplies a
quotation.
38.3 EVIDENCE OF DEBT
Each Bank shall maintain in accordance with its usual practice accounts
evidencing the amounts from time to time lent by and owing to it
hereunder.
38.4 CONTROL ACCOUNTS
The Agent shall maintain on its books a control account or accounts in
which shall be recorded:
38.4.1 the amount and the Sterling Amount of any Advance or any Unpaid
Sum and each Bank's share therein;
38.4.2 the amount of all principal, interest and other sums due or to
become due from an Obligor and each Bank's share therein; and
38.4.3 the amount of any sum received or recovered by the Agent
hereunder and each Bank's share therein.
38.5 PRIMA FACIE EVIDENCE
In any legal action or proceeding arising out of or in connection with
this Agreement, the entries made in the accounts maintained pursuant to
Clause 38.3 (Evidence of Debt) and Clause 38.4 (Control Accounts) shall,
in the absence of manifest error, be prima facie evidence of the
existence and amounts of the specified obligations of the Obligors.
38.6 CERTIFICATES OF BANKS
A certificate of a Bank as to:
38.6.1 the amount by which a sum payable to it hereunder is to be
increased under Clause 14.1 (Tax Gross-up);
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38.6.2 the amount for the time being required to indemnify it against
any such cost, payment or liability as is mentioned in Clause
14.2 (Tax Indemnity) or Clause 16.1 (Increased Costs); or
38.6.3 the amount of any credit, relief, remission or repayment as is
mentioned in Clause 15.3 (Tax Credit Payment) or Clause 15.4
(Tax Credit Clawback)
shall, in the absence of manifest error, be prima facie evidence of the
existence and amounts of the specified obligations of the Obligors.
38.7 AGENT'S CERTIFICATES
A certificate of the Agent as to the amount at any time due from a
Borrower or the Parent hereunder or the amount which, but for any of the
obligations of such Borrower or the Parent hereunder being or becoming
void, voidable, unenforceable or ineffective, at any time would have
been due from such Borrower hereunder shall, in the absence of manifest
error, be conclusive for the purposes of Clause 25 (Guarantee and
Indemnity).
39. REMEDIES AND WAIVERS, PARTIAL INVALIDITY
39.1 REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of any
party, any right or remedy under any Finance Document shall operate as a
waiver thereof, nor shall any single or partial exercise of any right or
remedy prevent any further or other exercise thereof or the exercise of
any other right or remedy. The rights and remedies provided herein and
in the Finance Documents are cumulative and not exclusive of any rights
or remedies provided by law.
39.2 PARTIAL INVALIDITY
If, at any time, any provision of the Finance Documents is or becomes
illegal, invalid or unenforceable in any respect under the law of any
jurisdiction, neither the legality, validity or enforceability of the
remaining provisions thereof nor the legality, validity or
enforceability of such provision under the law of any other jurisdiction
shall in any way be affected or impaired thereby.
40. NOTICES
40.1 COMMUNICATIONS IN WRITING
Each communication to be made under the Finance Documents shall be made
in writing and, unless otherwise stated, shall be made by fax or letter.
40.2 ADDRESSES
Any communication or document to be made or delivered pursuant to the
Finance Documents shall (unless the recipient of such communication or
document has, by fifteen days' written notice to the Agent, specified
another address or fax number) be made or delivered to the address or
fax number:
40.2.1 in the case of the Original Obligors, the Security Agent, the
Arranger and the Agent, identified with its name below;
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40.2.2 in the case of each Bank, notified in writing to the Agent prior
to the date hereof (or, in the case of a Transferee, at the end
of the Transfer Certificate to which it is a party as
Transferee); and
40.2.3 in the case of each Additional Obligor, in the relevant
Accession Memorandum
PROVIDED THAT not more than one address may be specified by each party
pursuant to this Clause 40.2 (Addresses) at any time. Any Bank with more
than one Facility Office shall specify its main address and fax number
for the purpose of notices.
40.3 DELIVERY
Any communication or document to be made or delivered by one person to
another pursuant to the Finance Documents shall:
40.3.1 if by way of fax, be deemed to have been received when
transmission has been completed (and, if such date is not a
Business Day, shall be deemed to have been received on the next
Business Day); and
40.3.2 if by way of letter, deemed to have been delivered when left at
that address or, as the case may be, ten days after being
deposited in the post postage prepaid in an envelope addressed
to it at that address,
PROVIDED THAT any communication or document to be made or delivered to
the Agent or Security Agent shall be effective only when received by its
agency division or, as the case may be, trustee division and then only
if the same is expressly marked for the attention of the department or
officer identified with the Agent's or, as the case may be, Security
Agent's signature below (or such other department or officer as the
Agent or, as the case may be, the Security Agent shall from time to time
specify for this purpose).
40.4 ENGLISH LANGUAGE
Each communication and document made or delivered by one party to
another pursuant to the Finance Documents shall be in the English
language or accompanied by a translation thereof into English certified
(by an officer of the person making or delivering the same) as being a
true and accurate translation thereof.
40.5 NOTIFICATION OF CHANGES
Promptly upon receipt of notification of a change of address or fax
number pursuant to Clause 40.3 (Delivery) the Agent shall notify the
other parties hereto of such change.
41. COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument.
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42. AMENDMENTS
42.1 AMENDMENTS
Subject to Clause 42.2 (Amendments requiring the Consent of all the
Banks) and Clause 42.3 (Exceptions) the Agent, if it has the prior
consent of an Instructing Group, and the Obligors may from time to time
agree in writing to amend the Finance Documents or to waive,
prospectively or retrospectively, any of the requirements of the Finance
Documents and any amendments or waivers so agreed shall be binding on
all the Finance Parties, provided that:
42.1.1 no such waiver or amendment shall subject any Finance Party
hereto to any new or additional obligations without the consent
of such Finance Party; and
42.1.2 no such amendment or waiver shall result in any Bank which has a
Revolving Commitment being required to participate in a
Revolving Advance unless the consent of the Banks with Revolving
Commitments exceeding sixty-six and two-thirds per cent. of the
aggregate of the Revolving Commitments has been obtained.
42.2 AMENDMENTS REQUIRING THE CONSENT OF ALL THE BANKS
An amendment or waiver which relates to:
42.2.1 Clause 33 (Sharing) or this Clause 42 (Amendments);
42.2.2 a decrease in the principal amount of any payment to a Bank
under the Finance Documents, or a change in the currency of any
Advance or deferral of any Term Repayment Date or Repayment Date
or Final Maturity Date or Revolving Termination Date;
42.2.3 a decrease in the Margin, the commitment commission, the amount
or currency of any payment of interest, fees or any other amount
payable hereunder to any Finance Party or deferral of the date
for payment thereof;
42.2.4 an increase in a Bank's Commitment;
42.2.5 the conditions set out in sub-clause 6.1.8 of Clause 6.1
(Utilisation Conditions for the Revolving Facility) if an Event
of Default or Potential Event of Default which relates to a
Repeated Representation, Clause 22 (Financial Condition) or
sub-clause 23.16 (Negative Pledge) is continuing;
42.2.6 the definition of Event of Default, Instructing Group Permitted
Acquisitions or Permitted Equity Funded Acquisitions;
42.2.7 a change to any material provision of any Security Document;
42.2.8 (save for Permitted Disposals) the discharge or release of any
Security; or
42.2.9 any provision which contemplates the need for the consent or
approval of all the Banks,
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shall not be made without the prior consent of all the Banks.
42.3 EXCEPTIONS
Notwithstanding any other provisions hereof, neither the Agent nor the
Security Agent shall be obliged to agree to any such amendment or waiver
if the same would:
42.3.1 (in respect of the Agent or Security Agent) amend or waive this
Clause 42 (Amendments), Clause 27 (Costs and Expenses) or Clause
34 (The Agent, the Arranger, the Underwriters and the Banks); or
42.3.2 otherwise amend or waive any of the Agent's or Security Agent's
rights hereunder or subject the Agent or Security Agent or any
Arranger to any additional obligations hereunder or under the
other Finance Documents.
42.4 AMENDMENTS BY PARENT
The Parent (acting on behalf of each of the Obligors) may agree any
amendment to or modification of the provisions of any of the Finance
Documents or any schedule thereto, or grant any waiver or consent in
relation thereto.
42.5 AMENDMENT TO CORRECT MANIFEST ERROR
The Agent may agree with the Parent (acting on behalf of each of the
Obligors) any amendment to or the modification of the provisions of any
of the Finance Documents or any schedule thereto, which is necessary to
correct a manifest error.
43. GOVERNING LAW
This Agreement is governed by English law.
44. JURISDICTION
44.1 ENGLISH COURTS
The courts of England have exclusive jurisdiction to settle any dispute
(a "DISPUTE") arising out of or in connection with the Finance Documents
(including a dispute regarding the existence, validity or termination of
this Agreement or the consequences of its nullity).
44.2 CONVENIENT FORUM
The parties agree that the courts of England are the most appropriate
and convenient courts to settle Disputes between them and, accordingly,
that they will not argue to the contrary.
44.3 NON-EXCLUSIVE JURISDICTION
This Clause 44 (Jurisdiction) is for the benefit of the Finance Parties
only. As a result and notwithstanding Clause 44.1 (English Courts), it
does not prevent any Finance Party from taking proceedings relating to a
Dispute ("PROCEEDINGS") in any other courts with jurisdiction. To the
extent allowed by law, the Finance Parties may take concurrent
Proceedings in any number of jurisdictions.
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44.4 SERVICE OF PROCESS
Each Original Obligor agrees that the documents which start any
Proceedings and any other documents required to be served in relation to
those Proceedings may be served on it on the Parent at its registered
office. If any Obligor ceases to have a place of business in Great
Britain or, as the case may be, the appointment of the person mentioned
in this Clause 44.4 (Service of Process) (or, as the case may be, the
relevant Accession Memorandum) ceases to be effective, the relevant
Obligor shall immediately appoint another person in England to accept
service of process on its behalf in England. If an Obligor fails to do
so (and such failure continues for a period of not less than fourteen
days), the Agent shall be entitled to appoint such a person by notice to
such Obligor. Nothing contained herein shall restrict the right to serve
process in any other manner allowed by law. This Clause 44.4 (Service of
Process) applies to Proceedings in England and to Proceedings elsewhere.
AS WITNESS the hands of the duly authorised representatives of the parties
hereto the date and year first above written.
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SIGNATURES
THE PARENT
TRANSWORLD HOLDINGS (UK) LIMITED
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Address: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇
Fax:
Attention:
THE ORIGINAL BORROWER
TRANSWORLD HEALTHCARE (UK) LIMITED
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Address: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇
Fax:
Attention:
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THE ORIGINAL GUARANTORS
TRANSWORLD HOLDINGS (UK) LIMITED
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Address: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇
Fax:
Attention:
TRANSWORLD HEALTHCARE (UK) LIMITED
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Address: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇
Fax:
Attention:
OMNICARE LIMITED
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Address: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇
Fax:
Attention:
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ALLIED MEDICARE LIMITED
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Address: MEDICARE HOUSE
STONE BUSINESS PARK
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇
Fax:
Attention:
AMCARE LIMITED
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
SUNDERLAND
TYNE & WEAR, SR4 6SN
Fax:
Attention:
ALLIED OXYCARE LIMITED
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Address: ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇
Fax:
Attention:
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NOVACARE (UK) LIMITED
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Address: ▇▇▇▇ ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇
Fax:
Attention:
THE ARRANGER
PARIBAS
By: ▇▇▇▇▇▇▇ ▇▇▇
Address: ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇
THE AGENT
BARCLAYS BANK PLC
By: ▇▇▇▇▇▇▇ ▇▇▇▇
Address: ▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
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THE SECURITY AGENT
BARCLAYS BANK PLC
By: ▇▇▇▇▇▇▇ ▇▇▇▇
Address: ▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
THE UNDERWRITERS
BARCLAYS BANK PLC
By: ▇▇▇▇▇▇▇ ▇▇▇▇
Address: ▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇. ▇▇▇▇
PARIBAS
By: ▇▇▇▇▇▇▇ ▇▇▇
Address: ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇
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THE BANKS
BARCLAYS BANK PLC
By: ▇▇▇▇▇▇▇ ▇▇▇▇
Address: ▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇. ▇▇▇▇
PARIBAS
By: ▇▇▇▇▇▇▇ ▇▇▇
Address: ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇
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