(pound)46,000,000
FACILITY AGREEMENT
dated 19 July 2004
as amended and restated on 12 December 2006
for
ALLIED HEALTHCARE GROUP HOLDINGS LIMITED
as the Company
ALLIED HEALTHCARE HOLDINGS LIMITED
and each of its subsidiaries
as the Original Borrowers
arranged by
BARCLAYS CAPITAL and
LLOYDS TSB BANK PLC
with
BARCLAYS BANK PLC
acting as Agent
and
BARCLAYS BANK PLC
acting as Security Agent
[LINKLATERS LOGO]
Ref: RLJ/RDH
A07131148/0.28/12 Dec 2006
CONTENTS
CLAUSE PAGE
SECTION 1
INTERPRETATION
1. Definitions and interpretation..................................... 1
SECTION 2
THE FACILITIES
2. The Facilities..................................................... 24
3. Purpose............................................................ 25
4. Conditions of Utilisation.......................................... 26
SECTION 3
UTILISATION
5. Utilisation........................................................ 28
6. Optional Currencies................................................ 29
SECTION 4
REPAYMENT, PREPAYMENT AND CANCELLATION
7. Repayment.......................................................... 33
8. Prepayment and cancellation........................................ 33
SECTION 5
COSTS OF UTILISATION
9. Interest........................................................... 38
10. Interest Periods................................................... 39
11. Changes to the calculation of interest............................. 40
12. Fees............................................................... 41
SECTION 6
ADDITIONAL PAYMENT OBLIGATIONS
13. Tax gross up and indemnities....................................... 43
14. Increased costs.................................................... 48
15. Other indemnities.................................................. 49
16. Mitigation by the Lenders.......................................... 50
17. Costs and expenses................................................. 50
SECTION 7
GUARANTEE
18. Guarantee and indemnity............................................ 52
SECTION 8
REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT
19. Representations.................................................... 55
20. Information undertakings........................................... 59
21. Financial covenants................................................ 63
22. General undertakings............................................... 67
23. Events of Default.................................................. 72
SECTION 9
CHANGES TO PARTIES
24. Changes to the Lenders............................................. 76
A07131148/0.28/12 Dec 2006
(i)
25. Changes to the Obligors............................................ 79
SECTION 10
THE SECURED PARTIES
26. Role of the Agent, the Security Agent and the Arranger............. 82
27. Conduct of business by the Secured Parties......................... 87
28. Sharing among the Secured Parties.................................. 87
SECTION 11
ADMINISTRATION
29. Payment mechanics.................................................. 90
30. Set-off............................................................ 92
31. Notices............................................................ 92
32. Calculations and certificates...................................... 94
33. Partial invalidity................................................. 94
34. Remedies and waivers............................................... 94
35. Amendments and waivers............................................. 95
36. Counterparts....................................................... 95
SECTION 12
GOVERNING LAW AND ENFORCEMENT
37. Governing law...................................................... 96
38. Enforcement........................................................ 96
THE SCHEDULES
SCHEDULE PAGE
SCHEDULE 1 The Original Parties.......................................... 97
SCHEDULE 2 Conditions Precedent.......................................... 101
SCHEDULE 3 Requests...................................................... 103
SCHEDULE 4 Mandatory Cost Formulae....................................... 105
SCHEDULE 5 Form of Transfer Certificate.................................. 108
SCHEDULE 6 Form of Accession Letter...................................... 111
SCHEDULE 7 Security Agency Provisions.................................... 112
SCHEDULE 8 Form of Compliance Certificate................................ 115
SCHEDULE 9 Existing Security............................................. 117
SCHEDULE 10 Timetables................................................... 118
SCHEDULE 11 Material Subsidiaries........................................ 120
SCHEDULE 12 Permitted Loans and Permitted Guarantees..................... 121
SCHEDULE 13 Form of Resignation Notice................................... 122
A07131148/0.28/12 Dec 2006
(ii)
THIS AGREEMENT is dated 19 July 2004 as amended and restated on 12 December 2006
and made between:
(1) ALLIED HEALTHCARE GROUP HOLDINGS LIMITED, registration number 3890177 (the
"COMPANY");
(2) EACH OF THE COMPANIES listed in Part I of Schedule I as original borrowers
(together the "ORIGINAL BORROWERS" and each an "ORIGINAL BORROWER");
(3) ALLIED HEALTHCARE INTERNATIONAL INC., a company incorporated in the state
of New York, United States of America (the "PARENT");
(4) THE SUBSIDIARIES of the Company listed in Part II of Schedule 1 as original
guarantors (together with the Company the "ORIGINAL GUARANTORS");
(5) BARCLAYS CAPITAL and LLOYDS TSB BANK PLC as mandated lead arrangers
(whether acting individually or together the "ARRANGER");
(6) THE FINANCIAL INSTITUTIONS listed in Part III and Part IV of Schedule 1 as
lenders (the "ORIGINAL LENDERS");
(7) BARCLAYS BANK PLC and LLOYDS TSB BANK PLC as ancillary lenders (each an
"ANCILLARY LENDER");
(8) ALLIED STAFFING PROFESSIONALS LIMITED and ALLIED HEALTHCARE GROUP LIMITED
as invoice discounting borrowers (the "ID OBLIGORS");
(9) BARCLAYS BANK PLC as invoice discounting lender (the "ID BANK");
(10) BARCLAYS BANK PLC as agent of the other Secured Parties (the "AGENT"); and
(11) BARCLAYS BANK PLC as security agent for the Secured Parties (the "SECURITY
AGENT").
IT IS AGREED as follows:
SECTION 1
INTERPRETATION
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"ACCESSION LETTER" means a document substantially in the form set out in
Schedule 6 (Form of Accession Letter).
"ACCOUNTING MONTH" means each period of approximately thirty days adopted
by the Company for the purpose of its financial reporting in any financial
year of the Company.
"ACCOUNTING QUARTER" means each period of three Accounting Months ending on
31 March, 30 June, 30 September and 31 December in any financial year of
the Company.
"ACCOUNTING QUARTER DATE" means 31 March, 30 June, 30 September or 31
December as relevant.
A07131148/0.28/12 Dec 2006
"ADDITIONAL BORROWER" means a company which becomes an Additional Borrower
in accordance with Clause 25 (Changes to the Obligors)
"ADDITIONAL COST RATE" has the meaning given to it in Schedule 4 (Mandatory
Cost formulae).
"ADDITIONAL DEPRECIATION CHARGE" means the additional depreciation charge
on fixed assets as shown in the financial statements for the year ended 30
September 2006, up to a maximum amount of (pound)8,500,000.
"ADDITIONAL GUARANTOR" means a company which becomes an Additional
Guarantor in accordance with Clause 25 (Changes to the Obligors).
"ADDITIONAL OBLIGOR" means an Additional Borrower or an Additional
Guarantor.
"AFFILIATE" means, in relation to any person, a Subsidiary of that person
or a Holding Company of that person or any other Subsidiary of that Holding
Company.
"AGENT'S SPOT RATE OF EXCHANGE" means the Agent's spot rate of exchange for
the purchase of the relevant currency with the Base Currency in the London
foreign exchange market at or about 11:00 a.m. on a particular day.
"AGREED FORM" means in respect of any document or report as agreed in
respect of both form and substance by the Agent.
"AMENDMENT AND RESTATEMENT AGREEMENT" means an agreement between the
Company, the Original Borrowers, the Parent, the Original Guarantors, the
Arranger, the Original Lenders, the Ancillary Lenders, the ID Bank, the
Agent and the Security Agent, dated 12 December 2006 which amends and
restates this Agreement.
"ANCILLARY DOCUMENT" means each document evidencing an Ancillary Facility
and designated as such by the Agent (acting on the instructions of the
Lenders) and the Company.
"ANCILLARY FACILITY" means any facility or financial accommodation,
including any interest rate swap, cap, or other arrangement for the hedging
or fixing of interest by an Obligor, required in connection with the
business of the Group and entered into by an Obligor and an Ancillary
Lender.
"APPLICABLE ACCOUNTING PRINCIPLES" means GAAP and practices and financial
reference periods used in the Original Financial Statements.
"AUTHORISATION" means an authorisation, consent, approval, resolution,
licence, exemption, filing, notarisation or registration.
"AVAILABILITY PERIOD" means:
(a) in relation to Facility A, the period from and including the date of
this Agreement to and including 19 August 2004;
(b) in relation to Facility B1, the period from and including the date of
this Agreement to and including the Business Day which is one Month
before the Termination Date;
(c) in relation to Facility B2, the period from and including the
Commencement Date to and including the Business Day which is one Month
before the Termination Date; and
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2
(d) in relation to Facility C, the period from and including the Effective
Date to and including the Business Day which is one Month before the
Termination Date.
"AVAILABLE COMMITMENT" means:
(a) in relation to a Facility other than Facility B2, a Lender's
Commitment under that Facility minus:
(i) the Base Currency Amount of its participation in any outstanding
Loans under that Facility;
(ii) in relation to any proposed Utilisation, the Base Currency Amount
of its participation in any Loans that are due to be made under
that Facility on or before the proposed Utilisation Date,
other than, in relation to any proposed Utilisation under Facility B1,
or Facility C only, that Lender's participation in any Facility B1
Loans, or Facility C Loans that are due to be repaid or prepaid on or
before the proposed Utilisation Date; and
(b) in relation to Facility B2, a Lender's Commitment under that Facility
minus the aggregate amount debited to the Debtor Control Accounts.
"AVAILABLE FACILITY" means, in relation to a Facility, the aggregate for
the time being of each Lender's Available Commitment in respect of that
Facility.
"BASE CURRENCY" or "(pound)" means sterling.
"BASE CURRENCY AMOUNT" means, in relation to a Loan, the amount specified
in the Utilisation Request delivered by a Borrower for that Loan (or, if
the amount requested is not denominated in the Base Currency, that amount
converted into the Base Currency at the Agent's Spot Rate of Exchange on
the date which is three Business Days before the Utilisation Date or, if
later, on the date the Agent receives the Utilisation Request) adjusted to
reflect any repayment (other than, in relation to Facility A, a repayment
arising from a change of currency), prepayment, consolidation or division
of the Loan.
"BORROWINGS" has the meaning given to it in Clause 21 (Financial
covenants).
"BORROWER" means an Original Borrower or an Additional Borrower or an ID
Obligor, unless it has ceased to be a Borrower in accordance with Clause 25
(Changes to the Obligors).
"BOUGHT DEBT" means any Debt (as such term is defined in the Sales Ledger
Financing Terms and Conditions) as shall be validly assigned to the ID Bank
in accordance with the Invoice Discounting Agreements.
"BREAK COSTS" means the amount (if any) by which:
(a) the interest which a Lender should have received for the period from
the date of receipt of all or any part of its participation in a Loan
or Unpaid Sum to the last day of the current Interest Period in
respect of that Loan or Unpaid Sum, had the principal amount or Unpaid
Sum received been paid on the last day of that Interest Period;
exceeds:
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3
(b) the amount which that Lender would be able to obtain by placing an
amount equal to the principal amount or Unpaid Sum received by it on
deposit with a leading bank in the Relevant Interbank Market for a
period starting on the Business Day following receipt or recovery and
ending on the last day of the current Interest Period.
"BUDGET" means the Initial Budget and each budget supplied under and
complying with Clause 20.1(e) (Financial Statements).
"BUSINESS DAY" means a day (other than a Saturday or Sunday) on which banks
are open for general business in London and:
(a) (in relation to any date for payment or purchase of a currency other
than euro) the principal financial centre of the country of that
currency; or
(b) (in relation to any date for payment or purchase of euro) any TARGET
Day.
"CAPEX LIMIT" means for the financial year ended 30 September 2007,
(pound)2,200,000, for the financial year ended 30 September 2008,
(pound)1,980,000 and for any subsequent financial years 110% of the amount
of Capital Expenditure as set out in the Budget for that financial year.
"CAPITAL EXPENDITURE" means any expenditure which should in accordance with
the Applicable Accounting Principles be treated as capital expenditure in
the audited consolidated financial statements of the Group.
"CASHFLOW" means (without double counting) EBITDA for the relevant
financial year:
(a) plus any Tax rebate received in cash, or less any Tax paid in cash,
during that relevant financial year;
(b) plus the amount of any increase, or less the amount of any decrease,
in provisions for liabilities during that relevant financial year;
(c) plus the net proceeds of any disposal of assets, or the proceeds of
any insurance claim during that relevant financial year;
(d) less all capital expenditure during that relevant financial year;
(e) plus any exceptional item received in cash, or less any exceptional
item paid in cash, during that relevant financial year;
(f) plus the amount of any decrease, or less the amount of any increase,
in Working Capital during that relevant financial year;
(g) less the amount of any dividends or other profit distributions paid
during that relevant financial year;
(h) less the amount of any profit of any Subsidiary of the Company taken
into account in EBIT for that relevant financial year which, whether
by law or for any other reason, cannot be distributed by way of
dividend, loan or other means to the Company; and
(i) plus any notional capital receipt in respect of finance leases or hire
purchase agreements entered into during that relevant financial year.
"CHARGED ASSETS" has the meaning given to it in the Debenture.
A07131148/0.28/12 Dec 2006
4
"CHARGES OVER CASH COLLATERAL ACCOUNTS" means the charges granted by Allied
Healthcare Holdings Limited in favour of Barclays Bank PLC, pursuant to
Project Driving Range, Project Gravesend and Project Indigo in each case
securing amounts deposited in designated cash collateral accounts.
"CHARGOR" has the meaning given to it in the Debenture.
"COMMENCEMENT DATE" means the date both the Invoice Discounting Agreements
become effective in accordance with their terms.
"COMMITMENT" means a Facility A Commitment, Facility B1 Commitment,
Facility B2 Commitment or Facility C Commitment.
"COMPLIANCE CERTIFICATE" means a certificate substantially in the form set
out in Schedule 8 (Form of Compliance Certificate).
"CONFIDENTIALITY UNDERTAKING" means a confidentiality undertaking
substantially in a recommended form of the LMA or in any other form agreed
between the Company and the Agent.
"DEBENTURE" means the floating security document between the Chargors and
the Security Agent.
"DEBTOR CONTROL ACCOUNTS" means the accounts described as such to be set up
and operated by the ID Bank and each of the ID Obligors under the Invoice
Discounting Agreements.
"DEFAULT" means an Event of Default or any event or circumstance specified
in Clause 23 (Events of Default) which would (with the expiry of a grace
period, the giving of notice, the making of any determination under the
Finance Documents or any combination of any of the foregoing) be an Event
of Default.
"DEPOSIT ACCOUNT CONTROL AGREEMENT" means any agreement or agreements to be
entered into pursuant to the Pledge and Security Agreement.
"DOLLARS" and "US$" means the lawful currency for the time being of the
United States of America.
"EBIT" has the meaning given to it in Clause 21 (Financial covenants).
"EBITA" has the meaning given to it in Clause 21 (Financial covenants).
"EBITDA" has the meaning given to it in Clause 21 (Financial covenants).
"EFFECTIVE DATE" means the Effective Date of the amendment and restatement
of this Agreement pursuant to the Amendment and Restatement Agreement.
"EMPLOYEE PLAN" means, at any time, an "employee pension benefit plan" as
defined in Section 3(2) of ERISA which is subject to Title IV of ERISA
(other than a Multiemployer Plan) then or at any time during the previous
five years maintained for, or contributed to (or to which there is or was
an obligation to contribute) on behalf of, employees of the Parent, any
Obligor or an ERISA Affiliate.
"ENVIRONMENT" means living organisms including the ecological systems of
which they form part and the following media:
A07131148/0.28/12 Dec 2006
5
(a) air (including air within natural or man-made structures, whether
above or below ground);
(b) water (including territorial, coastal and inland waters, water under
or within land and water in drains and sewers); and
(c) land (including land under water).
"ENVIRONMENTAL LAW" means all laws and regulations of any relevant
jurisdiction which:
(a) have as a purpose or effect the protection of, and/or prevention of
harm or damage to, the Environment;
(b) provide remedies or compensation for harm or damage to the
Environment; or
(c) relate to Hazardous Substances or health and safety matters.
"ENVIRONMENTAL LICENCE" means any Authorisation required at any time under
Environmental Law.
"ERISA" means the US Employee Retirement Income Security Act of 1974 (or
any successor legislation thereto) and the regulations promulgated and
rulings issued thereunder.
"ERISA AFFILIATE" means each person (as defined in Section 3(9) of ERISA)
that is a member of a controlled group of, or under common control with,
any of the Parent or any Obligor, within the meaning of Section 414(b),
(c), (m) or (o) of the Internal Revenue Code.
"ERISA EVENT" means any of the following events:
(a) any reportable event, as defined in Section 4043(c) of ERISA and the
regulations promulgated under it, with respect to an Employee Plan as
to which the PBGC has not by regulation waived the requirement of
Section 4043(a) of ERISA that it be notified within thirty days of the
occurrence of that event. However, a failure to meet the minimum
funding standard of Section 412 of the Internal Revenue Code or
Section 302 of ERISA by a material amount shall be a reportable event
for the purposes of this paragraph (a) regardless of the issuance of
any waiver under Section 412(d) of the Internal Revenue Code;
(b) the requirements of subsection (1) of Section 4043(b) of ERISA
(without regard to subsection (2) of that Section) are met with
respect to a contributing sponsor, as defined in Section 4001(a)(13)
of ERISA, of an Employee Plan and an event described in paragraph (9),
(10), (11), (12) or (13) of Section 4043(c) of ERISA is reasonably
expected to occur with respect to that Employee Plan within the
following 30 days;
(c) the filing under Section 4041(c) of ERISA of a notice of intent to
terminate any Employee Plan pursuant to a distress termination;
(d) the termination of any Employee Plan under Section 4041(c) of ERISA
pursuant to a distress termination;
(e) the institution of proceedings under Section 4042 of ERISA by the PBGC
for the termination of, or the appointment of a trustee to administer,
any Employee Plan;
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(f) the failure to make a required contribution to any Employee Plan that
would result in the imposition of an encumbrance under Section 412 of
the Internal Revenue Code or Section 302 of ERISA for a material
amount; or
(g) engagement by an Employee Plan in a non-exempt prohibited transaction
within the meaning of Section 4795 of the Internal Revenue Code or
Section 406 of ERISA for which the associated liability to the Parent,
any Obligor or any ERISA Affiliate could reasonably be expected to be
material.
"EURIBOR" means, in relation to any Loan in euro:
(a) the applicable Screen Rate; or
(b) (if no Screen Rate is available for the Interest Period of that Loan)
the arithmetic mean of the rates (rounded upwards to four decimal
places) as supplied to the Agent at its request quoted by the
Reference Banks to leading banks in the European interbank market,
as of the Specified Time on the Quotation Day for the offering of deposits
in euro for a period comparable to the Interest Period of the relevant
Loan.
"EURO" means the single currency of Participating Member States.
"EVENT OF DEFAULT" means any event or circumstance specified as such in
Clause 23 (Events of Default).
"EXCESS CASH FLOW" means Cashflow less:
(a) Total Debt Service for that financial year including any scheduled
repayments of Facility A falling due during that financial year;
(b) (to the extent the relevant sums or proceeds giving rise to the
prepayment or used to make the prepayment have been included in
computing Cashflow) the aggregate amount of prepayments made during
(or referable to) that financial year; and
(c) the amount of unutilised Capital Expenditure permitted to be carried
forward to the next financial year in accordance with clause 8.4.
"FACILITY" means Facility A, Facility B1, Facility B2 or Facility C.
"FACILITY A" means the term loan facility made available under this
Agreement as described in Clause 2 (The Facilities).
"FACILITY A COMMITMENT" means:
(a) in relation to an Original Lender, the amount in the Base Currency set
opposite its name under the heading "Facility A Commitment" in Part
III or Part IV of Schedule 1 (The Original Parties) and the amount of
any other Facility A Commitment transferred to it under this
Agreement; and
(b) in relation to any other Lender, the amount in the Base Currency of
any Facility A Commitment transferred to it under this Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
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"FACILITY A LOAN" means a loan made or to be made under Facility A or the
principal amount outstanding for the time being of that loan.
"FACILITY A REPAYMENT DATE" means 19 July and 19 January in each calendar
year and each anniversary of those dates.
"FACILITY B COMMITMENT" means the Facility B1 Commitment and the Facility
B2 Commitment, as relevant.
"FACILITY B LOAN" means a Facility B1 Loan and/or a Facility B2 Loan, in
each case as the context requires.
"FACILITY B1" means the revolving credit facility made available under this
Agreement as described in Clause 2 (The Facilities).
"FACILITY B1 LOAN" means a loan made or to be made under Facility B1 or the
principal amount outstanding for the time being of that loan.
"FACILITY B1 COMMITMENT" means the Period A Facility B1 Commitment during
Period A and the Period B Facility B1 Commitment during Period B;
"FACILITY B2" means the invoice discounting facility made available under
the Invoice Discounting Agreement as described in Clause 6A.
"FACILITY B2 COMMITMENT" means the Period A Facility B2 Commitment during
Period A and the Period B Facility B2 Commitment during Period B.
"FACILITY B2 LOAN" means monies advanced or to be advanced under Facility
B2 or the amount outstanding for the time being pursuant to Facility B2.
"FACILITY C" means the revolving credit facility made available under this
Agreement as described in Clause 2 (The Facilities).
"FACILITY C COMMITMENT" means.
(a) in relation to an Original Lender, the amount in the Base Currency set
opposite its name under the heading "Facility C Commitment" in Part
III or Part IV of Schedule 1 (The Original Parties) and the amount of
any other Facility C Commitment transferred to it under this
Agreement; and
(b) in relation to any other Lender, the amount in the Base Currency of
any Facility C Commitment transferred to it under this Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"FACILITY C LOAN" means a loan made or to be made under Facility C or the
principal amount outstanding for the time being of that loan.
"FACILITY C REPAYMENT DATE" means the date that is the earlier of (i) the
Termination Date; and (ii) the date that the Facility A Loan and the
Facility B1 Loan and the sums outstanding pursuant to the Invoice
Discounting Agreements are repaid in full, and all Facility A Commitments,
Facility B1 Commitments and Facility B2 Commitments are cancelled in full.
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"FACILITY OFFICE" means the office or offices notified by a Lender to the
Agent in writing on or before the date it becomes a Lender (or, following
that date, by not less than five Business Days' written notice) as the
office or offices through which it will perform its obligations under this
Agreement.
"FEE LETTER" means any letter or letters dated on or about the date of this
Agreement between, as the case may be, the Arranger and Allied Healthcare
Holdings Limited, the Agent and Allied Healthcare Holdings Limited or the
Security Agent and Allied Healthcare Holdings Limited setting out any of
the fees referred to in Clause 12 (Fees).
"FINANCE DOCUMENT" means this Agreement, any Fee Letter, any Accession
Letter, any Resignation Letter, the Subordination Deed (as amended), the
Invoice Discounting Agreements, any Ancillary Document and Security
Document and any other document designated as such by the Agent and the
Company.
"FINANCE PARTY" means the Agent, the Security Agent, the Arranger, the ID
Bank or a Lender.
"FINANCIAL INDEBTEDNESS" means any indebtedness for or in respect of:
(a) moneys borrowed;
(b) any amount raised by acceptance under any acceptance credit facility
or dematerialised equivalent;
(c) any amount raised pursuant to any note purchase facility or the issue
of bonds, notes, debentures, loan stock or any similar instrument;
(d) the amount of any liability in respect of any lease or hire purchase
contract which would, in accordance with GAAP, be treated as a finance
or capital lease;
(e) receivables sold or discounted (other than any receivables to the
extent they are sold on a non-recourse basis);
(f) any amount raised under any other transaction (including any forward
sale or purchase agreement) having the commercial effect of a
borrowing;
(g) any derivative transaction entered into in connection with protection
against or benefit from fluctuation in any rate or price (and, when
calculating the value of any derivative transaction, only the marked
to market value shall be taken into account);
(h) shares which are expressed to be redeemable;
(i) any counter-indemnity obligation in respect of a guarantee, indemnity,
bond, standby or documentary letter of credit or any other instrument
issued by a bank or financial institution; and
(j) the amount of any liability in respect of any guarantee or indemnity
for any of the items referred to in paragraphs (a) to (i) above.
"GAAP" means:
(a) in respect of the Company or any person incorporated in the United
Kingdom, generally accepted accounting principles, standards and
practices in the United Kingdom; and
A07131148/0.28/12 Dec 2006
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(b) in respect of the Parent or any person incorporated in the United
States of America, generally accepted accounting principles, standards
and practices in the United States of America.
"GROUP" means the Company and its Subsidiaries for the time being.
"GT REPORT" means the report prepared by Xxxxx Xxxxxxxx UK LLP dated 26
October 2006.
"GUARANTOR" means an Original Guarantor or an Additional Guarantor, unless
it has ceased to be a Guarantor in accordance with Clause 25 (Changes to
the Obligors).
"HAZARDOUS SUBSTANCE" means any waste, pollutant, contaminant or other
substance (including any liquid, solid, gas, ion, living organism or noise)
that may be harmful to human health or other life or the Environment or a
nuisance to any person or that may make the use or ownership of any
affected land or property more costly.
"HOLDING COMPANY" means, in relation to a company or corporation, any other
company or corporation in respect of which it is a Subsidiary.
"IC SIDE AGREEMENT" means the terms of engagement dated on or about the
date of this Amendment and Restatement Agreement between Allied Healthcare
Group Holdings Limited and Xxxx Xxxxxxxxxxx.
"INFORMATION PACKAGE" means the information concerning the Parent and the
Group provided to the Arranger before the date of this Agreement by or on
behalf of the Group or the Parent.
"INITIAL BUDGET" means the initial budget for the financial years 2007 and
2008 in the Agreed Form as commented on by Xxxxx Xxxxxxxx UK LLP.
"INTEREST EXPENSE" has the meaning given to it in Clause 21 (Financial
covenants).
"INTEREST PERIOD" means, in relation to a Loan, each period determined in
accordance with Clause 10 (Interest Periods) and, in relation to an Unpaid
Sum, each period determined in accordance with Clause 9.3 (Default
interest) and in relation to a Facility B2 Loan, each Margin Determination
Period.
"INTERIM CONSULTANT" means the interim consultant appointment by the Group
pursuant to the IC Side Agreement.
"INTERNAL REVENUE CODE" means the United States Internal Revenue Code of
1986, as amended.
"INVOICE DISCOUNTING AGREEMENTS" means the Sales Ledger Financing
Agreements and the Sales Ledger Financing Terms and Conditions.
"IRS" means the United States Internal Revenue Service.
"LENDER" means:
(a) any Original Lender;
(b) the ID Bank; and
(c) any bank, financial institution, trust, fund or other entity which has
become a Party in accordance with Clause 24 (Changes to the Lenders),
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10
which in each case has not ceased to be a Party in accordance with the
terms of this Agreement.
"LIABILITIES" has the meaning given to it in the Debenture.
"LIBOR" means, in relation to any Loan:
(a) the applicable Screen Rate; or
(b) (if no Screen Rate is available for the currency or Interest Period of
that Loan) the arithmetic mean of the rates (rounded upwards to four
decimal places) as supplied to the Agent at its request quoted by the
Reference Banks to leading banks in the London interbank market,
as of the Specified Time on the Quotation Day for the offering of deposits
in the currency of that Loan and for a period comparable to the Interest
Period for that Loan.
"LMA" means the Loan Market Association.
"LOAN" means a Facility A Loan, a Facility B1 Loan or a Facility C Loan.
"LOSS SHARE OBLIGATIONS" means the loss share obligations undertaken by
Lloyds TSB Bank PLC as an Original Lender pursuant to Clause 28.6 of this
Agreement.
"MAJORITY LENDERS" means:
(a) if there are no Loans then outstanding, a Lender or Lenders whose
Commitments aggregate 66 2/3% or more of the Total Commitments (or, if
the Total Commitments have been reduced to zero, aggregated 66 2/3% or
more of the Total Commitments immediately prior to the reduction) (For
the purposes of this sub-clause (a) "Commitments" and "Total
Commitments" shall be calculated excluding the Facility B2 Commitments
and the Total Facility B2 Commitments respectively); or
(b) at any other time, a Lender or Lenders whose participations in the
Loans then outstanding aggregate 66 2/3% or more of all the Loans then
outstanding.
"MANDATORY COST" means the percentage rate per annum calculated by the
Agent in accordance with Schedule 4 (Mandatory Cost formulae).
"MARGIN" means, in relation to a particular Interest Period, the rate per
annum determined by reference to the ratio of Net Borrowings to EBITDA as
shown in the most recent Compliance Certificate received by the Agent at
least 5 Business Days before the Quotation Day for that Interest Period, in
accordance with the following table:
Margin (% p.a.) Margin (% p.a.) Margin (% p.a.)
Ratio Facility A1, B1 Facility B2 Facility C
----------------------------- --------------- --------------- ---------------
Greater than 3.5:1.0 2.50 2.25 3.50
Greater than 3.0:1.0 but less
than or equal to 3.5:1.0 2.00 1.75 3.00
Greater than 2.5:1.0 but less
than or equal to 3.0:1.0 1.50 1.25 2.50
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11
Margin (% p.a.) Margin (% p.a.) Margin (% p.a.)
Ratio Facility A1, B1 Facility B2 Facility C
----------------------------- --------------- --------------- ---------------
Greater than 2.0:1.0 but less
than or equal to 2.5:1.0 1.00 1.00 2.00
Greater than 1.0:1.0 but less
than or equal to 2.0:1.0 0.80 0.80 1.80
Equal to or less than
1.0:1.0 0.70 0.70 1.70
"MARGIN DETERMINATION DATE" means the Commencement Date and quarterly
thereafter.
"MARGIN DETERMINATION PERIOD" means each three month period ending on the
Margin Determination Date.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on or material
adverse change in the ability of the Parent or the Obligors (taken as a
whole) to perform and comply with its/their payment obligations under this
Agreement (or the ability of the Company to perform its obligations under
Clause 21 (Financial covenants)).
"MATERIAL SUBSIDIARY" means:
(a) a Subsidiary of the Company the gross assets, EBIT or turnover of
which (consolidated where that Subsidiary itself has Subsidiaries) as
at the date as at which its latest audited consolidated financial
statements were prepared or, as the case may be, for the financial
period to which those financial statements relate account for 5 per
cent. or more of the consolidated gross assets, EBIT or turnover of
the Group (all as calculated by reference to the latest audited
consolidated financial statements of the Group); or
(b) a Subsidiary of the Company to which has been transferred (whether in
a single transaction or a series of transactions (whether related or
not)) the whole or substantially the whole of the assets of a
Subsidiary which immediately prior to such transaction(s) was a
Material Subsidiary.
For the purposes of this definition:
(i) if a Subsidiary becomes a Material Subsidiary under paragraph (b)
above, the Material Subsidiary by which the relevant transfer was made
shall, subject to paragraph (a) above, cease to be a Material
Subsidiary; and
(ii) if a Subsidiary is acquired by the Company after the end of the
financial period to which the latest audited consolidated financial
statements of the Group relate, those financial statements shall be
adjusted as if that Subsidiary had been shown in them by reference to
its then latest audited financial statements (consolidated if
appropriate) until audited consolidated financial statements of the
Group for the financial period in which the acquisition is made have
been prepared.
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12
"MERGER" means any amalgamation or merger by any Obligor with any party who
is not an Obligor under this Agreement.
"MONTH" means a period starting on one day in a calendar month and ending
on the numerically corresponding day in the next calendar month, except
that:
(a) if the numerically corresponding day is not a Business Day, that
period shall end on the next Business Day in that calendar month in
which that period is to end if there is one, or if there is not, on
the immediately preceding Business Day; and
(b) if there is no numerically corresponding day in the calendar month in
which that period is to end, that period shall end on the last
Business Day in that calendar month.
The above rules will only apply to the last Month of any period.
"MONTHLY MANAGEMENT ACCOUNTS" means the monthly management accounts
prepared by the Company containing as a minimum the latest profit and loss
accounts, the balance sheet, a cashflow, details of performance as against
key performance indicators (either as identified in the GT Report or as
otherwise determined to be relevant by the Company) with any accompanying
management commentary.
"MULTIEMPLOYER PLAN" means, at any time, a multiemployer plan (as defined
in Section 4001(a)(3) of ERISA) then or at any time during the previous
five years maintained for, or contributed to (or to which there is or was
an obligation to contribute) on behalf of, employees of the Parent, any
Obligor or an ERISA Affiliate.
"NET BORROWINGS" has the meaning given to it in Clause 21 (Financial
covenants).
"NET ISSUANCE PROCEEDS" means, with respect to any private or public issue
or offering of:
(a) debt securities or notes (subordinated to the indebtedness under the
Facilities in all respects on terms satisfactory to the Agent (acting
on the instructions of the Majority Lenders); or
(b) equity securities (or similar instruments of any kind including
convertible bonds or other equity linked instruments issued on terms
satisfactory to the Agent (acting on the instructions of the Majority
Lenders),
by any member of the Parent Group, the gross cash proceeds received by such
person in connection with such issuance, net of reasonable costs, fees,
commissions and out-of-pocket expenses paid or incurred in connection with
such issuance.
"OBLIGOR" means a Borrower or a Guarantor.
"OFF-BALANCE SHEET FUNDING" means any Financial Indebtedness not required
to be recorded on the balance sheet of a company.
"OPTIONAL CURRENCY" means a currency (other than the Base Currency) which
complies with the conditions set out in Clause 4.4 (Conditions relating to
Optional Currencies).
"ORIGINAL FINANCIAL STATEMENTS" means:
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13
(a) in relation to the Company, the audited consolidated financial
statements of the Group for the financial year ended 30 September
2003;
(b) in relation to each Original Obligor other than the Company, its
audited financial statements for its financial year ended 30 September
2003; and
(c) in relation to the Parent, its audited financial statements for its
financial year ended 30 September 2003.
"ORIGINAL OBLIGOR" means the Original Borrower or an Original Guarantor.
"PARENT GROUP" means the Parent and the Group.
"PARTICIPATING MEMBER STATE" means any member state of the European
Communities that adopts or has adopted the euro as its lawful currency in
accordance with legislation of the European Community relating to Economic
and Monetary Union.
"PARTY" means a party to this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation of the USA
established pursuant to Section 4002 of ERISA or any entity succeeding to
all or any of its functions under ERISA.
"PERIOD" means any of Period A or Period B.
"PERIOD A" means any time from and including the Effective Date to and
including the Commencement Date.
"PERIOD A FACILITY B1 COMMITMENT" means:
(a) in relation to an Original Lender, the amount in the Base Currency set
opposite its name under the heading "Period A Facility B1 Commitment"
in Part II or Part III of Schedule 1 (The Original Parties) and the
amount of any other Period A Facility B1 Commitment transferred to it
under this Agreement; and
(b) in relation to any other Lender, the amount in the Base Currency of
any Period A Facility B1 Commitment transferred to it under this
Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement
"PERIOD A FACILITY B2 COMMITMENT" means.
(a) in relation to the ID Bank, the amount in the Base Currency set
opposite its name under the heading "Period A Facility B2 Commitment"
in Part III or Part IV of Schedule 1 (The Original Parties) and the
amount of any other Period A Facility B2 Commitment transferred to it
under this Agreement; and
(b) in relation to any other Lender, the amount in the Base Currency of
any Period A Facility B2 Commitment transferred to it under this
Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"PERIOD B" means any time from and including the Commencement Date to and
including the Termination Date;
"PERIOD B FACILITY B1 COMMITMENT" means:
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14
(a) in relation to an Original Lender, the amount in the Base Currency set
opposite its name under the heading "Period B Facility B1 Commitment"
in Part II or Part III of Schedule 1 (The Original Parties) and the
amount of any other Period B Facility B1 Commitment transferred to it
under this Agreement; and
(b) in relation to any other Lender, the amount in the Base Currency of
any Period B Facility B1 Commitment transferred to it under this
Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement
"PERIOD B FACILITY B2 COMMITMENT" means.
(a) in relation to the ID Bank, the amount in the Base Currency set
opposite its name under the heading "Period B Facility B2 Commitment"
in Part III or Part IV of Schedule 1 (The Original Parties) and the
amount of any other Period B Facility B2 Commitment transferred to it
under this Agreement; and
(b) in relation to any other Lender, the amount in the Base Currency of
any Period B Facility B2 Commitment transferred to it under this
Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"PERMITTED ACQUISITION" means:
(a) the acquisition by a member of the Group of any share or asset sold,
leased, transferred or otherwise disposed of by another member of the
Group in circumstances constituting a Permitted Disposal;
(b) an acquisition of any business or all of the issued share capital of a
limited liability company if:
(i) no Default is continuing on the closing date for the acquisition
or would occur as a result of the acquisition;
(ii) the acquired company or business is incorporated or established,
and carries on its principal business, in the United Kingdom;
(iii) the acquired company or business carries on, or is, a business
substantially the same as that carried on by the Group;
(iv)
(A) the consideration (including associated costs and expenses)
for the acquisition and any Financial Indebtedness remaining
in the acquired company or business at the date of
acquisition (when aggregated with the consideration
(including associated costs and expenses) for any other
acquisition permitted under this paragraph (b) and any
Financial Indebtedness remaining in any such acquired
companies or businesses at the time of acquisition) does
not:
(i) in any single acquisition exceed (pound)2,000,000; and
(ii) in any financial year of the Company exceed in
aggregate (pound)10,000,000,
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15
(or its equivalent in another currency or currencies); or
(B) the consideration (including associated costs and expenses)
for the acquisition and any Financial Indebtedness remaining
in the acquired company or business at the date of
acquisition (when aggregated with the consideration
(including associated costs and expenses) for any other
acquisition permitted under this paragraph (b) and any
Financial Indebtedness remaining in any such acquired
companies or businesses at the time of acquisition) is
funded by a subscription for shares in the Company; and
(v) the business acquired is EBITA positive.
"PERMITTED DISPOSAL" means the sale, lease, transfer or other disposal:
(a) on arm's length terms of trading stock by any member of the Group in
the ordinary course of trading of the disposing entity;
(b) arising as a result of any Permitted Security or arising pursuant to
the Invoice Discounting Agreements;
(c) of obsolete or redundant vehicles, plant and equipment for cash and on
arm's length terms and which, in the reasonable opinion of the member
of the Group making the sale, transfer or disposal, are not required
for the efficient operation of its business;
(d) on arm's length terms of assets in exchange for other assets
comparable or superior as to type, value and quality; or
(e) where the consideration receivable (when aggregated with the
consideration receivable for any other sale, lease, transfer or other
disposal, other than any permitted under paragraphs (a) to (d) above),
does not exceed (pound)1,000,000 (or its equivalent in another
currency or currencies) in any financial year of the Company.
"PERMITTED GUARANTEE" means:
(a) any guarantee arising under the Finance Documents;
(b) any guarantee issued by a member of the Group in respect of the
obligations of another member of the Group expressly referred to in
Schedule 12 (Permitted Loans and Permitted Guarantees);
(c) any guarantee issued by a member of the Group on arm's length terms
and in the ordinary course of its trading, not in respect of Financial
Indebtedness;
(d) any customary indemnity to a purchaser in relation to a Permitted
Disposal;
(e) any guarantee in respect of a netting or set-off arrangement entered
into by a member of the Group in the ordinary course of its banking
arrangements for the purpose of netting debit and credit balances for
members of the Group, provided that the arrangement does not permit
credit balances of Obligors to be netted or set off against debit
balances of members of the Group which are not Obligors and the
arrangement does not give rise to
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16
Security over the assets of Obligors in support of liabilities of
members of the Group which are not Obligors;
(f) any guarantee issued by an Obligor in relation to the Financial
Indebtedness of a member of the Group which is not an Obligor provided
that the aggregate principal amount guaranteed at any time does not,
when aggregated with:
(i) the amount of any loans outstanding at that time which are
permitted under paragraph (k) of the definition of Permitted
Loans; and
(i) the aggregate consideration payable for the sale, lease, transfer
or other disposal of assets permitted to be sold, leased,
transferred or otherwise disposed of under paragraph (j) of the
definition of Permitted Disposals,
exceed (pound)1,000,000 (or its equivalent in another currency or
currencies); or
(g) any guarantee not falling within paragraphs (a) to (f) above where the
aggregate liability (whether actual or contingent) of members of the
Group under all such guarantees does not at any time exceed
(pound)1,000,000 (or its equivalent in another currency or
currencies).
"PERMITTED LOAN" means:
(a) any trade credit extended by any member of the Group to its customers
on normal commercial terms and in the ordinary course of its trading
activities;
(b) a loan made by a member of the Group to another member of the Group
expressly referred to in Schedule 12 (Permitted Loans and Permitted
Guarantees);
(c) a loan made by a member of the Group in the ordinary course of
business to an employee or director of any member of the Group if the
amount of that loan when aggregated with the amount of all loans to
employees and directors by members of the Group does not at any time
exceed (pound)250,000 (or its equivalent in another currency or
currencies);
(d) any loan not falling within paragraphs (a) to (d) above the aggregate
principal amount of which at any time does not, when aggregated with
the aggregate principal amount of the Financial Indebtedness under any
such loans and the aggregate liability (whether actual or contingent)
of any guarantees at that time which are permitted under paragraph (f)
of the definition of Permitted Guarantee, exceed (pound)1,000,000 (or
its equivalent in another currency or currencies).
"PERMITTED SECURITY" means:
(a) any Security listed in Schedule 9 (Existing Security) except to the
extent the principal amount secured by that Security exceeds the
amount stated in that Schedule;
(b) any netting or set-off arrangement entered into by any member of the
Group in the ordinary course of its banking arrangements for the
purpose of netting debit and credit balances;
(c) any lien arising by operation of law and in the ordinary course of
trading provided that such lien is discharged within 30 days or
arising;
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17
(d) any Security over or affecting any asset acquired by a member of the
Group after the date of this Agreement if:
(i) the Security was not created in contemplation of the acquisition
of that asset by a member of the Group;
(ii) the principal amount secured has not been increased in
contemplation of or since the acquisition of that asset by a
member of the Group; and
(iii) the Security is removed or discharged within 3 months of the
date of acquisition of such asset;
(e) any Security over or affecting any asset of any company which becomes
a member of the Group after the date of this Agreement, where the
Security is created prior to the date on which that company becomes a
member of the Group, if:
(i) the Security was not created in contemplation of the acquisition
of that company;
(ii) the principal amount secured has not increased in contemplation
of or since the acquisition of that company; and
(iii) the Security is removed or discharged within 3 months of that
company becoming a member of the Group;
(f) the Security created pursuant to any Security Document;
(g) any Security arising under or evidenced by the Charges over Cash
Collateral Accounts; or
(h) any Security securing indebtedness the principal amount of which (when
aggregated with the principal amount of any other indebtedness which
has the benefit of Security given by any member of the Group other
than any permitted under paragraphs (a) to (g) above) does not exceed
(pound)1,000,000 (or its equivalent in another currency or
currencies).
"PROJECT DRIVING RANGE" means the transaction relating to the acquisition
of all the shares in Balfor Medical Limited by Allied Healthcare Holdings
Limited.
"PROJECT GRAVESEND" means the transaction relating to the acquisition of
all the shares in Crystalglen Limited by Allied Healthcare Holdings
Limited.
"PROJECT INDIGO" means the transaction relating to the acquisition of all
the shares in Staffing Enterprise Limited and Staffing Enterprise (PSV)
Limited by Allied Healthcare Holdings Limited.
"PLEDGE AND SECURITY AGREEMENT" means the Pledge and Security Agreement
between the Parent and the Security Agent dated on or around the date of
the Amendment and Restatement Agreement.
"QUALIFYING LENDER" has the meaning given to it in Clause 13 (Tax gross-up
and indemnities).
"QUOTATION DAY" means, in relation to any period for which an interest rate
is to be determined:
(a) (if the currency is sterling) the first day of that period;
(b) (if the currency is euro) two TARGET Days before the first day of that
period; or
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18
(c) (for any other currency) two Business Days before the first day of
that period.
"REFERENCE BANKS" means in relation to LIBOR and EURIBOR and Mandatory Cost
the principal London offices of Barclays Bank PLC and Lloyds TSB Bank plc
or such other banks as may be appointed by the Agent in consultation with
the Company.
"REFINANCING" means any refinancing of any or all of the Facilities by any
person not a party to this Agreement.
"RELEVANT INTERBANK MARKET" means, in relation to euro, the European
interbank market and, in relation to any other currency, the London
interbank market.
"RELEVANT PERIOD" has the meaning given to it in Clause 21 (Financial
covenants).
"REPAYMENT INSTALMENT" means each instalment for repayment of the Facility
A Loan specified in Clause 7.1 (Repayment of Facility A Loans).
"REPEATING REPRESENTATIONS" means each of the representations set out in
Clauses 19.1 (Status), 19.2 (Binding obligations), 19.3 (Non-conflict with
other obligations), 19.4 (Power and authority), 19.6 (Governing law and
enforcement), 19.9 (No default), 19.11 (Financial statements), 19.12 (Pari
passu ranking), 19.13 (No proceedings pending or threatened) and 19.14
(Title).
"RESERVATIONS" means:
(a) the principle that equitable remedies are remedies which may be
granted or refused at the discretion of the court;
(b) 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;
(c) the time barring of claims under the Limitation Acts;
(d) the possibility that an undertaking to assume liability for or to
indemnify a person against non-payment of UK stamp duty may be void;
(e) defences of set-off or counterclaim and similar principles; and
(f) any other general principles of law limiting the obligations of an
Obligor or the Parent which are specifically referred to in any legal
opinion delivered pursuant to Clause 4 (Conditions of Utilisation) or
Clause 25 (Changes to the Obligors).
"RESIGNATION NOTICE" means a letter substantially in the form set out in
Schedule 13 (Form of Resignation Notice).
"ROLLOVER LOAN" means one or more Rollover B1 Loans and/or Rollover C
Loans.
"ROLLOVER B1 LOAN" means one or more Facility B1 Loans:
(a) made or to be made on the same day that one or more maturing Facility
B1 Loans is or are due to be repaid;
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19
(b) the aggregate amount of which is equal to or less than the maturing
Facility B1 Loan(s) (unless it is more than the maturing Facility B1
Loan(s) solely because it arose as a result of the operation of Clause
6.2 (Unavailability of a currency));
(c) in the same currency as the maturing Facility B1 Loan(s) (unless it
arose as a result of the operation of Clause 6.2 (Unavailability of a
currency)); and
(d) made or to be made to the same Borrower for the purpose of refinancing
the maturing Facility B1 Loan(s).
"ROLLOVER C LOAN" means one or more Facility C Loans.
(a) made or to be made on the same day that one or more maturing Facility
C Loans is or are due to be repaid;
(b) the aggregate amount of which is equal to or less than the maturing
Facility C Loan(s) (unless it is more than the maturing Facility C
Loan(s) solely because it arose as a result of the operation of Clause
6.2 (Unavailability of a currency));
(c) in the same currency as the maturing Facility C Loan(s) (unless it
arose as a result of the operation of Clause 6.2 (Unavailability of a
currency)); and
(d) made or to be made to the same Borrower for the purpose of refinancing
the maturing Facility C Loan(s).
"SALE" means a disposal of all or substantially all of the assets of the
Group (whether in a single transaction) or a series of related
transactions.
"SALES LEDGER FINANCING AGREEMENT" means the sales ledger financing
agreement to be entered into between the ID Bank and the ID Obligors
setting out the commercial terms of Facility B2 in the form agreed by the
ID Bank, the ID Obligors and Lloyds TSB Bank PLC.
"SALES LEDGER FINANCING TERMS AND CONDITIONS" means the standard terms and
conditions of the ID Bank applicable to invoice discounting facilities
offered by the ID Bank.
"SCREEN RATE" means:
(a) in relation to LIBOR, the British Bankers Association Interest
Settlement Rate for the relevant currency and period; and
(b) in relation to EURIBOR, the percentage rate per annum determined by
the Banking Federation of the European Union for the relevant period,
displayed on the appropriate page of the Reuters screen. If the agreed page
is replaced or service ceases to be available, the Agent may specify
another page or service displaying the appropriate rate after consultation
with the Company and the Lenders.
"SECURED PARTY" means a Finance Party or an Ancillary Lender or an ID
Lender.
"SECURITY" means a mortgage, charge, pledge, lien or other security
interest securing any obligation of any person or any other agreement or
arrangement having a similar effect.
"SECURITY DOCUMENT" means the Debenture, the Pledge and Security Agreement
and the Deposit Account Control Agreements and any other security document
that may at any time be
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20
given as security for any of the Liabilities pursuant to or in connection
with any Finance Document.
"SECURITY PROPERTY" has the meaning given to it in Schedule 7 (Security
agency provisions).
"SELECTION NOTICE" means a notice substantially in the form set out in Part
II of Schedule 3 (Requests) given in accordance with Clause 10 (Interest
Periods) in relation to Facility A.
"SPECIFIED TIME" means a time determined in accordance with Schedule 10
(Timetables).
"SUBORDINATION DEED" means the subordination document between the Borrower,
the Parent and the Agent dated on or about the date of this Agreement.
"SUBSIDIARY" means a subsidiary within the meaning of section 736 of the
Companies Xxx 0000 and, for the purpose of Clause 21 (Financial covenants)
and in relation to financial statements of the Group, a subsidiary
undertaking within the meaning of section 258 of the Companies Xxx 0000.
"TARGET" means Trans-European Automated Real-time Gross Settlement Express
Transfer payment system.
"TARGET DAY" means any day on which TARGET is open for the settlement of
payments in euro.
"TAX" means any tax, levy, impost, duty or other charge or withholding of a
similar nature (including any penalty or interest payable in connection
with any failure to pay or any delay in paying any of the same).
"TAXES ACT" means the Income and Corporation Xxxxx Xxx 0000.
"TERMINATION DATE" means 19 July 2009.
"TOTAL COMMITMENTS" means the aggregate of the Total Facility A
Commitments, the Total Facility B1 Commitments, the Total Facility B2
Commitments and the Total Facility C Commitments, being (pound)46,000,000
at the Effective Date.
"TOTAL FACILITY A COMMITMENTS" means the aggregate of the Facility A
Commitments, being (pound)18,000,000 at the Effective Date.
"TOTAL FACILITY B1 COMMITMENTS" means the aggregate of the Facility B1
Commitments at the time.
"TOTAL FACILITY B2 COMMITMENTS" means the aggregate of the Facility B2
Commitments at the time.
"TOTAL FACILITY C COMMITMENTS" means the aggregate of the Facility C
Commitments, being (pound)8,000,000 at the Effective Date.
"TRANSFER CERTIFICATE" means a certificate substantially in the form set
out in Schedule 5 (Form of Transfer Certificate) or any other form agreed
between the Agent and the Company.
"TRANSFER DATE" means, in relation to a transfer, the later of:
(a) the proposed Transfer Date specified in the Transfer Certificate; and
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21
(b) the date on which the Agent executes the Transfer Certificate.
"UNPAID SUM" means any sum due and payable but unpaid by the Parent or an
Obligor under the Finance Documents.
"US ADMINISTRATION COSTS" means all day to day running costs of the Group's
US operations including rent, professional fees, public company expenses
and salaries but excluding non-cash expenses arising from stock option
schemes as shown in the Budget.
"UTILISATION" means a utilisation of a Facility (but not a utilisation of
Facility B2).
"UTILISATION DATE" means the date of a Utilisation, being the date on which
the relevant Loan is to be made.
"UTILISATION REQUEST" means a notice substantially in the form set out in
Part I of Schedule 3 (Requests).
"VAT" means value added tax as provided for in the Value Added Tax Xxx 0000
and any other tax of a similar nature.
"WORKING CAPITAL" means at any time:
(i) trade and other debtors in relation to the business operations of any
member of the Parent Group;
plus
(ii) prepayments and stock;
less
(iii) trade and other creditors in relation to the business operations of
any member of the Group; and
(iv) accrued expenses and accrued costs of any member of the Group.
1.2 CONSTRUCTION
(a) Unless a contrary indication appears, any reference in this Agreement to:
(i) the "AGENT", the "ARRANGER", any "FINANCE PARTY", any "SECURED
PARTY", any "LENDER", any "OBLIGOR", any "PARTY" or the "SECURITY
AGENT" shall be construed so as to include its successors in title,
permitted assigns and permitted transferees;
(ii) "ASSETS" includes present and future properties, revenues and rights
of every description;
(iii) "BARCLAYS CAPITAL" means the investment banking division of Barclays
Bank PLC;
(iv) a "FINANCE DOCUMENT" or any other agreement or instrument is a
reference to that Finance Document or other agreement or instrument
as amended or novated;
(v) "INDEBTEDNESS" includes any obligation (whether incurred as
principal or as surety) for the payment or repayment of money,
whether present or future, actual or contingent;
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22
(vi) a "PERSON" includes any person, firm, company, corporation,
government, state or agency of a state or any association, trust or
partnership (whether or not having separate legal personality) or
two or more of the foregoing;
(vii) a "REGULATION" includes any regulation, rule, official directive,
request or guideline (whether or not having the force of law) of any
governmental, intergovernmental or supranational body, agency,
department or regulatory, self-regulatory or other authority or
organisation;
(viii) a provision of law is a reference to that provision as amended or
re-enacted; and
(ix) a time of day is a reference to London time.
(b) Section, Clause and Schedule headings are for ease of reference only.
(c) Unless a contrary indication appears, a term used in any other Finance
Document or in any notice given under or in connection with any Finance
Document has the same meaning in that Finance Document or notice as in this
Agreement.
(d) A Default (other than an Event of Default) is "continuing" if it has not
been remedied or waived and an Event of Default is "continuing" if it has
not been waived.
1.3 THIRD PARTY RIGHTS
(a) Unless expressly provided to the contrary in a Finance Document, a person
who is not a Party has no right under the Contracts (Rights of Third
Parties) Xxx 0000 to enforce or to enjoy the benefit of any term of this
Agreement.
(b) Notwithstanding any term of any Finance Document, the consent of any person
who is not Party is not required to rescind or vary this agreement at any
time.
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SECTION 2
THE FACILITIES
2. THE FACILITIES
2.1 THE FACILITIES
Subject to the terms of this Agreement, the Lenders make available to the
Borrowers those facilities described at sub-paragraphs (a), (b) and (d)
below and, subject to the terms of this Agreement and the Invoice
Discounting Agreements, from the Commencement Date the ID Bank makes
available to the ID Obligors the facility described at sub-paragraph (c)
below:
(a) a multicurrency term loan facility in an aggregate amount equal to
the Total Facility A Commitments;
(b) a multicurrency revolving credit facility in an aggregate amount
equal to the Total Facility B1 Commitments. For the avoidance of
doubt, a Lender shall never be committed under this Agreement to lend
any amount that would cause the total of its participations in all
outstanding Facility B Loans to exceed its Facility B Commitment for
the Relevant Period;
(c) an invoice discounting facility in an aggregate amount equal to the
Total Facility B2 Commitments; and
(d) a multicurrency revolving credit facility in an aggregate amount
equal to the Total Facility C Commitments.
2.2 ANCILLARY FACILITIES
(a) Ancillary Facilities may be agreed from time to time between an Ancillary
Lender and an Obligor, and the Ancillary Lenders are under no obligation to
make available or provide an Ancillary Facility until the terms and
conditions of such Ancillary Facility have been agreed.
(b) The Ancillary Lenders will on request by the Agent provide details of all
amounts outstanding under any Ancillary Facility to the Agent, and the
Obligors consent to this information being provided.
2.3 SECURED PARTIES' RIGHTS AND OBLIGATIONS
(a) The obligations of each Secured Party under the Finance Documents are
several. Failure by a Secured Party to perform its obligations under the
Finance Documents does not affect the obligations of any other Party under
the Finance Documents. No Secured Party is responsible for the obligations
of any other Secured Party under the Finance Documents.
(b) The rights of each Secured Party under or in connection with the Finance
Documents are separate and independent rights and any debt arising under
the Finance Documents to a Secured Party from the Parent or an Obligor
shall be a separate and independent debt.
(c) A Secured Party may, except as otherwise stated in the Finance Documents,
separately enforce its rights under the Finance Documents.
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2.4 OBLIGORS' AGENT
(a) Each Obligor (other than the Company) irrevocably appoints the Company to
act on its behalf as its agent in relation to the Finance Documents and
irrevocably authorises:
(i) the Company on its behalf to supply all information concerning itself
contemplated by this Agreement to the Secured Parties and to give and
receive all notices, consents and instructions (including Utilisation
Requests), to agree, accept and execute on its behalf all documents
in connection with the Finance Documents (including amendments and
variations of and consents under any Finance Document) and to execute
any new Finance Document and to take such other action as may be
necessary or desirable under or in connection with the Finance
Documents; and
(ii) each Secured Party to give any notice, demand or other communication
to that Obligor pursuant to the Finance Documents to the Company.
(b) Each Obligor (other than the Company) confirms that:
(i) it will be bound by any action taken by the Company under or in
connection with the Finance Document; and
(ii) each Secured Party may rely on any action purported to be taken by
the Company on behalf of that Obligor.
2.5 ACTS OF THE COMPANY
(a) The respective liabilities of each of the Obligors under the Finance
Documents shall not be in any way affected by:
(i) any actual or purported irregularity in any act done, or failure to
act, by the Company;
(ii) the Company acting (or purporting to act) in any respect outside any
authority conferred upon it by any Obligor; or
(iii) any actual or purported failure by, or inability of, the Company to
inform any Obligor of receipt by it of any notification under the
Finance Documents.
(b) In the event of any conflict between any notices or other communications of
the Company and any other Obligor, those of the Company shall prevail.
3. PURPOSE
3.1 PURPOSE
(a) Each Borrower shall apply all amounts borrowed by it under Facility A,
Facility B1 and Facility C for its general corporate purposes.
(b) Each Borrower shall apply all amounts borrowed by it under Facility B2
initially to ensure that the Facility B1 Commitment is reduced to
(pound)12,500,000 and thereafter to finance the working capital
requirements of the Group.
3.2 MONITORING
No Finance Party is bound to monitor or verify the application of any
amount borrowed pursuant to this Agreement.
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4. CONDITIONS OF UTILISATION
4.1 INITIAL CONDITIONS PRECEDENT
[NOT USED.]
4.2 FURTHER CONDITIONS PRECEDENT
(a) The Lenders will only be obliged to comply with Clause 5.4 (Lenders'
participation) if on the date of the Utilisation Request and on the
proposed Utilisation Date:
(i) in the case of a Rollover Loan, no Event of Default is continuing or
would result from the proposed Loan and, in the case of any other
Loan, no Default is continuing or would result from the proposed
Loan; and
(ii) the Repeating Representations to be made by the Parent and each
Obligor are true in all material respects.
(b) The Lenders will only be obliged to comply with Clause 6.3 (Change of
currency) if, on the first day of an Interest Period, no Default is
continuing or would result from the change of currency and the Repeating
Representations to be made by the Parent and each Obligor are true in all
material respects.
4.3 CONDITION SUBSEQUENT
[NOT USED.]
4.4 CONDITIONS RELATING TO OPTIONAL CURRENCIES
(a) A currency will constitute an Optional Currency in relation to a Loan if:
(i) it is readily available in the amount required and freely convertible
into the Base Currency in the Relevant Interbank Market on the
Quotation Day and the Utilisation Date for that Loan; and
(ii) it is US Dollars or euro or has been approved by the Agent (such
approval not to be unreasonably withheld) on or prior to receipt by
the Agent of the relevant Utilisation Request or Selection Notice for
that Loan.
(b) If by the Specified Time the Agent has received a written request from the
Company for a currency to be approved under paragraph (a)(ii) above, the
Agent will notify the Lenders of that request by the Specified Time. Based
on any responses received by the Agent by the Specified Time, the Agent
will confirm to the Company by the Specified Time:
(i) whether or not the Lenders have granted their approval; and
(ii) if approval has been granted, the minimum amount (and, if required,
integral multiples) for any subsequent Utilisation in that currency.
4.5 MAXIMUM NUMBER OF LOANS
(a) A Borrower may not deliver a Utilisation Request if as a result of the
proposed Utilisation more than 10 Loans would be outstanding.
(b) A Borrower may not request that a Facility A Loan be divided if, as a
result of the proposed division, more than 10 Loans would be outstanding.
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(c) Any Loan made by a single Lender under Clause 6.2 (Unavailability of a
currency) shall not be taken into account in this Clause 4.5.
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SECTION 3
UTILISATION
5. UTILISATION
5.1 DELIVERY OF A UTILISATION REQUEST
A Borrower may utilise a Facility (other than Facility B2) by delivery to
the Agent of a duly completed Utilisation Request not later than the
Specified Time.
5.2 COMPLETION OF A UTILISATION REQUEST
(a) Each Utilisation Request is irrevocable and will not be regarded as having
been duly completed unless:
(i) it identifies the Facility to be utilised;
(ii) it identifies the relevant Borrower;
(iii) the proposed Utilisation Date is a Business Day within the
Availability Period applicable to that Facility;
(iv) the currency and amount of the Utilisation comply with Clause 5.3
(Currency and amount);
(v) the proposed Interest Period complies with Clause 10 (Interest
Periods); and
(vi) it specifies the account and bank (which must be in the principal
financial centre of the country of the currency of the Utilisation
or, in the case of euro, the principal financial centre of a
Participating Member State in which banks are open for general
business on that day or London) to which the proceeds of the
Utilisation are to be credited.
(b) Only one Loan may be requested in each Utilisation Request.
5.3 CURRENCY AND AMOUNT
(a) The currency specified in a Utilisation Request must be the Base Currency
or an Optional Currency.
(b) The amount of the proposed Loan must be:
(i) if the currency selected is the Base Currency, a minimum of
(pound)1,000,000 or, if less, the Available Facility;
(ii) if the currency selected is US Dollars, a minimum of US$1,500,000 or,
if less, the Available Facility;
(iii) if the currency selected is euro, a minimum of euro 1,500,000 or, if
less, the Available Facility; or
(iv) if the currency selected is an Optional Currency other than US
Dollars or euro, the minimum amount (and, if required, integral
multiple) specified by the Agent pursuant to paragraph (b)(ii) of
Clause 4.4 (Conditions relating to Optional Currencies) or, if less,
the Available Facility; and
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(v) in any event such that its Base Currency Amount is less than or equal
to the Available Facility.
5.4 LENDERS' PARTICIPATION
(a) If the conditions set out in this Agreement have been met, each Lender
shall make its participation in each Loan available by the Utilisation Date
through its Facility Office.
(b) The amount of each Lender's participation in each Loan will be equal to the
proportion borne by its Available Commitment to the Available Facility
immediately prior to making the Loan.
(c) The Agent shall determine the Base Currency Amount of each Loan which is to
be made in an Optional Currency and shall notify each Lender of the amount,
currency and the Base Currency Amount of each Loan and the amount of its
participation in that Loan, in each case by the Specified Time.
6. OPTIONAL CURRENCIES
6.1 SELECTION OF CURRENCY
(a) A Borrower shall select the currency of a Loan:
(i) (in the case of an initial Utilisation) in a Utilisation Request; and
(ii) (afterwards in relation to a Facility A Loan made to it) in a
Selection Notice.
(b) If a Borrower fails to issue a Selection Notice in relation to a Facility A
Loan, it shall be deemed to have requested that the Loan will remain
denominated for its next Interest Period in the same currency in which it
is then outstanding.
(c) If a Borrower issues a Selection Notice requesting a change of currency and
the first day of the requested Interest Period is not a Business Day for
the new currency, the Agent shall promptly notify that Borrower and the
Lenders and the Loan will remain in the existing currency (with Interest
Periods running from one Business Day until the next Business Day) until
the next day which is a Business Day for both currencies, on which day the
requested Interest Period will begin.
6.2 UNAVAILABILITY OF A CURRENCY
If before the Specified Time on any Quotation Day:
(a) a Lender notifies the Agent that the Optional Currency requested is
not readily available to it in the amount required; or
(b) a Lender notifies the Agent that compliance with its obligation to
participate in a Loan in the proposed Optional Currency would
contravene a law or regulation applicable to it,
the Agent will give notice to the relevant Borrower to that effect by the
Specified Time on that day. In this event, any Lender that gives notice
pursuant to this Clause 6.2 will be required to participate in the Loan in
the Base Currency (in an amount equal to that Lender's proportion of the
Base Currency Amount or, in respect of a Rollover Loan, an amount equal to
that Lender's proportion of the Base Currency Amount of the Rollover Loan
that is due to be made) and its participation will be treated as a separate
Loan denominated in the Base Currency during that Interest Period.
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6.3 CHANGE OF CURRENCY
(a) If a Facility A Loan is to be denominated in different currencies during
two successive Interest Periods:
(i) if the currency for the second Interest Period is an Optional
Currency, the amount of the Loan in that Optional Currency will be
calculated by the Agent as the amount of that Optional Currency equal
to the Base Currency Amount of the Loan at the Agent's Spot Rate of
Exchange at the Specified Time;
(ii) if the currency for the second Interest Period is the Base Currency,
the amount of the Loan will be equal to the Base Currency Amount;
(iii) (unless the Agent and the relevant Borrower agree otherwise in
accordance with paragraph (b) below) the Borrower that has borrowed
the Loan shall repay it on the last day of the first Interest Period
in the currency in which it was denominated for that Interest Period;
and
(iv) (subject to Clause 4.2 (Further conditions precedent)) the Lenders
shall re-advance the Loan in the new currency in accordance with
Clause 6.5 (Agent's calculations).
(b) If the Agent and the Borrower that has borrowed the Facility A Loan agree,
the Agent shall:
(i) apply the amount paid to it by the Lenders pursuant to paragraph
(a)(iv) above (or so much of that amount as is necessary) in or
towards purchase of an amount in the currency in which the Facility A
Loan is outstanding for the first Interest Period; and
(ii) use the amount it purchases in or towards satisfaction of the
relevant Borrower's obligations under paragraph (a)(iii) above.
(c) If the amount purchased by the Agent pursuant to paragraph (b)(i) above is
less than the amount required to be repaid by the relevant Borrower, the
Agent shall promptly notify that Borrower and that Borrower shall, on the
last day of the first Interest Period, pay an amount to the Agent (in the
currency of the outstanding Facility A Loan for the first Interest Period)
equal to the difference.
(d) If any part of the amount paid to the Agent by the Lenders pursuant to
paragraph (a)(iv) above is not needed to purchase the amount required to be
repaid by the relevant Borrower, the Agent shall promptly notify that
Borrower and pay that Borrower, on the last day of the first Interest
Period, that part of that amount (in the new currency).
6.4 SAME OPTIONAL CURRENCY DURING SUCCESSIVE INTEREST PERIODS
(a) If a Facility A Loan is to be denominated in the same Optional Currency
during two successive Interest Periods, the Agent shall calculate the
amount of the Facility A Loan in the Optional Currency for the second of
those Interest Periods (by calculating the amount of Optional Currency
equal to the Base Currency Amount of that Facility A Loan at the Agent's
Spot Rate of Exchange at the Specified Time) and (subject to paragraph (b)
below):
(i) if the amount calculated is less than the existing amount of that
Facility A Loan in the Optional Currency during the first Interest
Period, promptly notify the Borrower that has borrowed the Facility A
Loan and that Borrower shall pay, on the last day of the first
Interest Period, an amount equal to the difference; or
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(ii) if the amount calculated is more than the existing amount of that
Facility A Loan in the Optional Currency during the first Interest
Period, promptly notify each Lender and, if no Default is continuing,
each Lender shall, on the last day of the first Interest Period, pay
its participation in an amount equal to the difference.
(b) If the calculation made by the Agent pursuant to paragraph (a) above shows
that the amount of the Facility A Loan in the Optional Currency for the
second of those Interest Periods converted into the Base Currency at the
Agent's Spot Rate of Exchange used in calculating the Base Currency Amount
of that Loan has increased or decreased by less than 5 per cent. compared
to its Base Currency Amount (taking into account any payments made pursuant
to paragraph (a) above), no notification shall be made by the Agent and no
payment shall be required under paragraph (a) above.
6.5 AGENT'S CALCULATIONS
(a) All calculations made by the Agent pursuant to this Clause 6 will take into
account any repayment, prepayment, consolidation or division of Facility A
Loans to be made on the last day of the first Interest Period.
(b) Each Lender's participation in a Loan will, subject to paragraph (a) above,
be determined in accordance with paragraph (b) of Clause 5.4 (Lenders'
participation).
6A FACILITY B2 - INVOICE DISCOUNTING AGREEMENTS
6A.1 TERMS OF INVOICE DISCOUNTING AGREEMENTS
(a) The terms applicable to Facility B2 will be agreed between the ID Bank and
the ID Obligors and Lloyds TSB Bank PLC and will be set out in the Invoice
Discounting Agreements provided that:
(i) those terms shall be consistent with this Clause 6A;
(ii) utilisations under Facility B2 shall be in accordance with the
Invoice Discounting Agreements and shall be used initially to ensure
that the Facility B1 Commitment is reduced to (pound)12,500,000 and
thereafter to finance the working capital requirements of the Group.
(b) Any material variation to the Invoice Discounting Agreements other than the
Sales Ledger Financing Terms and Conditions (including any proposed
increase or reduction in the Facility B2 Commitment) shall require the
consent of the ID Bank, the ID Obligors and Lloyds TSB Bank PLC for so long
as it retains Loss Share Obligations in relation to Facility B2.
(c) In the case of any inconsistency between any term of the Invoice
Discounting Agreements and any term of this Agreement, this Agreement shall
prevail.
6A.2 LIMITS ON FACILITY B2
The Parent and the Company shall each ensure that:
(a) the aggregate of all Facility B2 Commitments does not at any time exceed
the Total Facility B2 Commitments;
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(b) the aggregate of the Facility B2 Loans outstanding does not at any time
exceed the Facility B2 Commitment.
6A.4 NOTICES
(a) The ID Bank shall promptly notify the Agent of:
(i) the amount of Facility B2 which is cancelled or expires and the date
of any such cancellation or expiry; and
(ii) any other information relating to Facility B2 as the Agent may
request, including the Outstandings under Facility B2 from time to
time.
(b) The Agent may assume, unless it has received notice to the contrary in its
capacity as agent for the Lenders, that Facility B2 has not expired or been
cancelled in whole or part.
(c) The Parent and each Obligor consents to all information described in
paragraph (a) above being disclosed to the Finance Parties.
6A.5 FACILITY B2 OUTSTANDINGS
(a) The relevant Borrower under the Invoice Discounting Agreements shall repay
or pay on the due date each amount payable under the Invoice Discounting
Agreements.
(b) All Facility B2 Loans then outstanding will be repaid on the Termination
Date.
6A.6 SECURITY AGENT'S WAIVER
(a) The Security Agent hereby confirms that for so long as the Bought Debts are
and remain legally and beneficially owned by the ID Bank, such Bought Debts
are not assets subject to the Security created by the Debenture.
6A.7 PROCEEDS OF BOUGHT DEBTS
(a) It is hereby agreed that the ID Bank may collect and retain and is under no
obligation to share with any other Secured Party any amount which it has
received or recovered as a result of its collection of the Bought Debts,
save as is necessary to give effect to the rights of subrogation of a
Lender who makes a Loss Share Payment(s) under sub-clause 28.6 (Loss Share)
below.
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SECTION 4
REPAYMENT, PREPAYMENT AND CANCELLATION
7. REPAYMENT
7.1 REPAYMENT OF FACILITY A LOANS
(a) The Facility A Loans outstanding at the end of the Availability Period for
Facility A shall be repaid by each Borrower that has drawn a Facility A
Loan in 10 equal six monthly instalments. One instalment shall fall due on
each Facility A Repayment Date.
(b) No Borrower may reborrow any part of Facility A which is repaid.
(c) All Facility A Loans then outstanding will be repaid on the Termination
Date.
7.2 REPAYMENT OF FACILITY B1 LOANS
(a) Each Borrower which has drawn a Facility B1 Loan shall repay that Loan on
the last day of its Interest Period.
(b) All Facility B1 Loans then outstanding will be repaid on the Termination
Date.
7.3 REPAYMENT OF FACILITY C LOANS
Each Borrower which has drawn a Facility C Loan shall repay that Loan on
the Facility C Repayment Date.
8. PREPAYMENT AND CANCELLATION
8.1 ILLEGALITY
If it becomes unlawful in any applicable jurisdiction for a Lender to
perform any of its obligations as contemplated by this Agreement or to fund
or maintain its participation in any Loan:
(a) that Lender shall promptly notify the Agent upon becoming aware of
that event;
(b) upon the Agent notifying the Company, the Commitment of that Lender
will be immediately cancelled; and
(c) each Borrower shall repay that Lender's participation in the Loans
made to that Borrower on the last day of the Interest Period for each
Loan occurring after the Agent has notified the Company or, if
earlier, the date specified by the Lender in the notice delivered to
the Agent (being no earlier than the last day of any applicable grace
period permitted by law).
8.2 CHANGE OF CONTROL
(a) If any person, or persons acting in concert, acquire(s) control of:
(i) the Parent;
(ii) the Company; or
(iii) any Borrower,
then:
(iv) the Company shall promptly notify the Agent upon becoming aware of
that event;
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(v) a Lender shall not be obliged to fund a Utilisation (except for a
Rollover Loan); and
(vi) if a Lender so requires and notifies the Agent, the Agent shall, by
not less than 30 days' notice to the Company, cancel the Commitment
of that Lender and declare the participation of that Lender in all
outstanding Loans, together with accrued interest, and all other
amounts accrued under the Finance Documents immediately due and
payable, whereupon the Commitment of that Lender will be cancelled
and all such outstanding amounts will become immediately due and
payable.
(b) For the purpose of paragraph (a) above:
(i) "CONTROL" has the meaning given to it in section 416(2) of the Taxes
Act; and
(ii) "ACTING IN CONCERT" has the meaning given to it in the City Code on
Takeovers and Mergers.
8.3 DISPOSAL
(a) In this Clause 8.3 "NET DISPOSAL PROCEEDS" means any amount received by a
member of the Group as consideration for a Permitted Disposal of an asset
to a person which is not a member of the Group, including the amount of any
intercompany loan repaid or prepaid to continuing members of the Group,
less:
(i) all Taxes paid or reasonably estimated by the Company to be payable
(certified by the Company to the Agent) as a result of that disposal;
and
(ii) all reasonable costs and expenses incurred by members of the Group in
connection with the disposal, receipt or recovery.
(b) Other than Permitted Disposals where the asset disposed of is based in the
United Kingdom and is reinvested within 6 months of the date of disposal,
the Original Borrowers shall procure the application of an amount equal to
the net disposal proceeds in respect of any Permitted Disposals in
repayment of the Facilities in accordance with this Clause 8.3 promptly
upon receipt of the same by any Group member.
(c) Any prepayment made under this Clause 8.3 must be made:
(i) on or before the last day of the Interest Period of the Loan to be
prepaid in which the disposal occurred; or
(ii) in the case of a Facility B2 Loan, on or before the last day of the
Margin Determination Period in which the disposal occurred; or
(iii) where the Company has notified the Agent that an asset the subject of
a disposal is to be replaced by another asset based in the United
Kingdom for use in the business of the Group and no reinvestment is
made within 6 months of the date of the disposal, on or before the
last day of the Interest Period of the Loan to be prepaid in which
the period of 6 months ended or, in the case of a Facility B2 Loan,
on or before the last day of the Margin Determination Period in which
the period of 6 months ended.
(d) Any prepayment of Facility B1 or Facility B2 made under this Clause 8.3
will result in the cancellation of the Available Facility with respect to
Facility B1 or Facility B2 by the amount of that prepayment.
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8.4 MANDATORY PREPAYMENT FROM EXCESS CASH FLOW
(a) Until such time as:
(i) Facility C has been repaid in full and all Facility C Commitments
have been cancelled in full; and
(ii) the ratio of Net Borrowings to EBITDA for any Relevant Period is less
than 3.0 to 1.0 for two consecutive covenant test dates,
the Group shall, on or before 31 January in each financial year (commencing
in the financial year 2008), procure that an amount equal to 50 per cent.
of Excess Cash Flow for the immediately preceding financial year is applied
in prepayment of the Facilities in accordance with the provisions of this
Agreement.
(b) Paragraph (a) above does not apply to any Excess Cash Flow which does not
exceed (pound)500,000 (or its equivalent in another currency or currencies)
in any financial year of the Group. For the avoidance of doubt, the first
(pound)500,000 (or its equivalent in another currency or currencies) of any
Excess Cash Flow may be retained by the Group for its general corporate
purposes.
(c) Any prepayment of Facility B1 or Facility B2 made under this Clause 8.4
will result in the cancellation of the Available Facility with respect to
Facility B1 or Facility B2 by the amount of that prepayment.
8.5 MANDATORY PREPAYMENT FROM SHAREHOLDER FUNDS
(a) Any Net Issuance Proceeds shall be applied in prepayment of the Facilities
in accordance with the provisions of this Agreement until:
(i) Facility C has been repaid in full and the Total Facility C
Commitments have been cancelled in full; and
(ii) the Parent or other Obligor can demonstrate to the satisfaction of
the Agent (acting reasonably) that the ratio of Net Borrowings to
EBITDA is less than 3.0 to 1.0 or for the previous two consecutive
covenant test dates and the said ratio will remain less than 3.0 to
1.0 for the subsequent four covenant test dates.
(b) Any prepayment of Facility B1 or Facility B2 made under this Clause 8.5
will result in the cancellation of the Available Facility with respect to
Facility B1 or Facility B2 by the amount of that prepayment.
8.6 VOLUNTARY CANCELLATION
The Company may, if it gives the Agent not less than 5 Business Days' (or
such shorter period as the Majority Lenders may agree) prior notice, cancel
the whole or any part (being a minimum amount of (pound)500,000 and an
integral multiple of (pound)250,000) of an Available Facility. Any
cancellation under this Clause 8.6 shall reduce the Commitments of the
Lenders rateably under that Facility.
8.7 VOLUNTARY PREPAYMENT OF FACILITY A LOANS
(a) The Borrower to which a Facility A Loan has been made may, if it gives the
Agent not less than 5 Business Days' (or such shorter period as the
Majority Lenders may agree) prior notice, prepay the whole or any part of
any Facility A Loan (but, if in part, being an amount that reduces the
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Base Currency Amount of the Facility A Loan by a minimum amount of
(pound)500,000 and an integral multiple of (pound)250,000).
(b) A Facility A Loan may only be prepaid after the last day of the
Availability Period (or, if earlier, the day on which the applicable
Available Facility is zero).
8.8 VOLUNTARY PREPAYMENT OF FACILITY B1 LOANS
The Borrower to which a Facility B1 Loan has been made may, if it gives the
Agent not less than 5 Business Days' (or such shorter period as the
Majority Lenders may agree) prior notice, prepay the whole or any part of a
Facility B1 Loan (but if in part, being an amount that reduces the Base
Currency Amount of the Facility B1 Loan by a minimum amount of
(pound)500,000 and an integral multiple of (pound)250,000).
8.9 VOLUNTARY PREPAYMENT OF FACILITY C LOANS
The Borrower to which a Facility C Loan has been made may, if it gives the
Agent not less than 5 Business Days' (or such shorter period as the
Majority Lenders may agree) prior notice, prepay the whole or any part of a
Facility C Loan (but if in part, being an amount that reduces the Base
Currency Amount of the Facility C Loan by a minimum amount of
(pound)500,000 and an integral multiple of (pound)250,000).
8.10 APPLICATION OF PROCEEDS
(a) Any prepayment made under Clause 8 (Prepayment and cancellation) must be
applied towards:
(i) FIRST, prepayment of Facility C Loans;
(ii) SECOND, prepayment of Facility A Loans (in inverse order of
maturity);
(iii) THIRD, prepayment of Facility B1 Loans;
(iv) FOURTH, prepayment of Facility B2 Loans;
(v) FIFTH, prepayment or cash cover of the Ancillary Facilities; and
(vi) SIX, prepayment or cash cover of any other amounts outstanding to the
Original Lenders.
(b) Any prepayment towards Facility C Loans shall be permanent prepayments and
the Total Facility C Commitments shall be permanently reduced in the amount
of such prepayment.
8.11 RIGHT OF REPAYMENT AND CANCELLATION IN RELATION TO A SINGLE LENDER
(a) If:
(i) any sum payable to any Lender by the Parent or an Obligor is required
to be increased under paragraph (c) of Clause 13.2 (Tax gross-up); or
(ii) any Lender claims indemnification from the Original Borrowers under
Clause 13.3 (Tax indemnity) or Clause 14 (Increased costs),
the Company may, whilst the circumstance giving rise to the requirement or
indemnification continues, give the Agent notice of cancellation of the
Commitment of that Lender and its intention to procure the repayment of
that Lender's participation in the Loans.
(b) On receipt of a notice referred to in paragraph (a) above, the Commitment
of that Lender shall immediately be reduced to zero.
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(c) On the last day of each Interest Period which ends after the Company has
given notice under paragraph (a) above (or, if earlier, the date specified
by the Company in that notice), each Borrower to which a Loan is
outstanding shall repay that Lender's participation in that Loan.
8.12 RESTRICTIONS
(a) Any notice of cancellation or prepayment given by any Party under this
Clause 8 shall be irrevocable and, unless a contrary indication appears in
this Agreement, shall specify the date or dates upon which the relevant
cancellation or prepayment is to be made and the amount of that
cancellation or prepayment.
(b) Any prepayment under this Agreement shall be made together with accrued
interest on the amount prepaid and, subject to any Break Costs, without
premium or penalty save as provided for in the Invoice Discounting
Agreements and at Clause 12.2 (Prepayment Fee) below.
(c) No Borrower may reborrow any part of Facility A or Facility C which is
prepaid.
(d) Unless a contrary indication appears in this Agreement, any part of
Facility B1 or Facility B2 which is prepaid may be reborrowed in accordance
with the terms of this Agreement.
(e) No Borrower shall repay or prepay all or any part of the Loans or cancel
all or any part of the Commitments except at the times and in the manner
expressly provided for in this Agreement or in the Invoice Discounting
Agreements.
(f) No amount of the Total Commitments cancelled under this Agreement may be
subsequently reinstated.
(g) If the Agent receives a notice under this Clause 8 it shall promptly
forward a copy of that notice to either the Company or the affected Lender,
as appropriate.
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SECTION 5
COSTS OF UTILISATION
9. INTEREST
9.1 CALCULATION OF INTEREST
The rate of interest on each Loan for each Interest Period is the
percentage rate per annum which is the aggregate of the applicable:
(a) Margin;
(b) LIBOR or, in relation to any Loan in euro, EURIBOR; and
(c) Mandatory Cost, if any.
9.2 PAYMENT OF INTEREST
The Borrower to which a Loan has been made shall pay accrued interest on
that Loan on the last day of each Interest Period (and, if the Interest
Period is longer than six Months, on the dates falling at six monthly
intervals after the first day of the Interest Period).
9.3 DEFAULT INTEREST
(a) If the Parent or an Obligor fails to pay any amount payable by it under a
Finance Document on its due date, interest shall accrue on the overdue
amount from the due date up to the date of actual payment (both before and
after judgment) at a rate which, subject to paragraph (b) below, is the sum
of 1 per cent and the rate which would have been payable if the overdue
amount had, during the period of non-payment, constituted a Loan in the
currency of the overdue amount for successive Interest Periods, each of a
duration selected by the Agent (acting reasonably). Any interest accruing
under this Clause 9.3 shall be immediately payable by the Parent or the
Obligor on demand by the Agent.
(b) If any overdue amount consists of all or part of a Loan which became due on
a day which was not the last day of an Interest Period relating to that
Loan:
(i) the first Interest Period for that overdue amount shall have a
duration equal to the unexpired portion of the current Interest
Period relating to that Loan; and
(ii) the rate of interest applying to the overdue amount during that first
Interest Period shall be the sum of 1 per cent and the rate which
would have applied if the overdue amount had not become due.
(c) If an ID Obligor fails to pay any amount payable by it under the Invoice
Discounting Agreements on its due date, interest shall accrue on the
overdue amount from the due date up to the date of actual payment (both
before and after judgement) at a rate which is the sum of 1 per cent and
the rate of interest which would have been payable if the overdue amount
had not become due; however this is without prejudice to and does not
supersede or replace the obligations of the ID Obligors pursuant to
Condition 20.3 of the Sales Ledger Financing Terms and Conditions (or any
successor condition)
(d) Default interest (if unpaid) arising on an overdue amount will be
compounded with the overdue amount at the end of each Interest Period
applicable to that overdue amount or in the case of
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Facility B2 at the end of the Margin Determination Period but will remain
immediately due and payable.
9.4 NOTIFICATION OF RATES OF INTEREST
The Agent shall promptly notify the Lenders and the Company of the
determination of a rate of interest under this Agreement and under the
Invoice Discounting Agreement.
10. INTEREST PERIODS
10.1 SELECTION OF INTEREST PERIODS
(a) A Borrower may select an Interest Period for a Loan in the Utilisation
Request for that Loan or (if the Loan has already been borrowed) in a
Selection Notice.
(b) Each Selection Notice for a Facility A Loan is irrevocable and must be
delivered to the Agent by the Borrower to which that Facility A Loan was
made not later than the Specified Time.
(c) If a Borrower fails to deliver a Selection Notice to the Agent in
accordance with paragraph (b) above, the relevant Interest Period will,
subject to Clause 10.2 (Changes to Interest Periods), be one Month.
(d) Subject to this Clause 10, a Borrower may select an Interest Period of 1,
2, 3 or 6 Months or any other period agreed between that Borrower and the
Agent (acting on the instructions of all the Lenders). In addition a
Borrower may select an Interest Period of less than one Month (in relation
to Facility A), if necessary to ensure that there are sufficient Facility A
Loans (with an aggregate Base Currency Amount equal to or greater than the
Repayment Instalment) which have an Interest Period ending on a Facility A
Repayment Date for that Borrower to make the Repayment Instalment due on
that date.
(e) An Interest Period for a Loan shall not extend beyond the Termination Date
applicable to its Facility.
(f) Each Interest Period for a Facility A Loan shall start on the Utilisation
Date or (if already made) on the last day of its preceding Interest Period.
10.2 CHANGES TO INTEREST PERIODS
(a) Prior to determining the interest rate for a Facility A Loan, the Agent may
shorten an Interest Period for any Facility A Loan to ensure there are
sufficient Facility A Loans with an Interest Period ending on a Facility A
Repayment Date for the Borrower of that Facility A Loan to make the
Repayment Instalment due on that Facility A Repayment Date.
(b) If the Agent makes any of the changes to an Interest Period referred to in
this Clause 10.2, it shall promptly notify the relevant Borrower and the
Lenders.
10.3 NON-BUSINESS DAYS
If an Interest Period would otherwise end on a day which is not a Business
Day, that Interest Period will instead end on the next Business Day in that
calendar month (if there is one) or the preceding Business Day (if there is
not).
10.4 CONSOLIDATION AND DIVISION OF FACILITY A LOANS
(a) Subject to paragraph (b) below, if two or more Interest Periods:
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(i) relate to Facility A Loans in the same currency;
(ii) end on the same date; and
(iii) are made to the same Borrower,
those Facility A Loans will, unless that Borrower specifies to the contrary
in the Selection Notice for the next Interest Period, be consolidated into,
and treated as, a single Facility A Loan on the last day of the Interest
Period.
(b) Subject to Clause 4.5 (Maximum number of Loans) and Clause 5.3 (Currency
and amount), if a Borrower requests in a Selection Notice that a Facility A
Loan be divided into two or more Facility A Loans, that Facility A Loan
will, on the last day of its Interest Period, be so divided with Base
Currency Amounts specified in that Selection Notice, being an aggregate
Base Currency Amount equal to the Base Currency Amount of the Facility A
Loan immediately before its division.
11. CHANGES TO THE CALCULATION OF INTEREST
11.1 ABSENCE OF QUOTATIONS
Subject to Clause 11.2 (Market disruption), if LIBOR or, if applicable,
EURIBOR is to be determined by reference to the Reference Banks but a
Reference Bank does not supply a quotation by the Specified Time on the
Quotation Day, the applicable LIBOR or EURIBOR shall be determined on the
basis of the quotations of the remaining Reference Banks.
11.2 MARKET DISRUPTION
(a) If a Market Disruption Event occurs in relation to a Loan for any Interest
Period, then the rate of interest on each Lender's share of that Loan for
the Interest Period shall be the rate per annum which is the sum of:
(i) the Margin;
(ii) the rate notified to the Agent by that Lender as soon as practicable
and in any event before interest is due to be paid in respect of that
Interest Period, to be that which expresses as a percentage rate per
annum the cost to that Lender of funding its participation in that
Loan from whatever source it may reasonably select; and
(iii) the Mandatory Cost, if any, applicable to that Lender's participation
in the Loan.
(b) In this Agreement "Market Disruption Event" means:
(i) at or about noon on the Quotation Day for the relevant Interest
Period the Screen Rate is not available and none or only one of the
Reference Banks supplies a rate to the Agent to determine LIBOR or,
if applicable, EURIBOR for Sterling for the relevant Interest Period;
or
(ii ) before close of business in London on the Quotation Day for the
relevant Interest Period, the Agent receives notifications from a
Lender or Lenders (whose participations in a Loan exceed 35 per cent.
of that Loan) that the cost to it of obtaining matching deposits in
the Relevant Interbank Market would be in excess of LIBOR or, if
applicable, EURIBOR.
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11.3 ALTERNATIVE BASIS OF INTEREST OR FUNDING
(a) If a Market Disruption Event occurs and the Agent or the Company so
requires, the Agent and the Company shall enter into negotiations (for a
period of not more than thirty days) with a view to agreeing a substitute
basis for determining the rate of interest.
(b) Any alternative basis agreed pursuant to paragraph (a) above shall, with
the prior consent of all the Lenders and the Company, be binding on all
Parties.
11.4 BREAK COSTS
(a) Each Borrower shall, within three Business Days of demand by a Finance
Party, pay to that Finance Party its Break Costs attributable to all or any
part of a Loan or Unpaid Sum being paid by that Borrower on a day other
than the last day of an Interest Period for that Loan or Unpaid Sum.
(b) Each Lender shall, as soon as reasonably practicable after a demand by the
Agent, provide a certificate confirming the amount of its Break Costs for
any Interest Period in which they accrue.
12. FEES
12.1 COMMITMENT FEE
(a) The Company shall pay to the Agent (for the account of each Lender) a fee
in the Base Currency computed at the rate of 45 per cent. per annum of the
applicable Margin on that Lender's Available Commitment under each Facility
for the Availability Period applicable to that Facility.
(b) The accrued commitment fee is payable:
(i) in respect of Facility A, on the last day of the Availability Period
and, if Facility A is cancelled in full, on the cancelled amount of
the relevant Lender's Commitment at the time the cancellation is
effective;
(ii) in respect of each of Facility B1, Facility B2 and Facility C, on the
last day of each successive period of three Months which ends during
the Availability Period for the relevant Facility on the last day of
the Availability Period for the relevant Facility and, if any of
Facility B1, Facility B2 or Facility C is cancelled in full, on the
cancelled amount of the relevant Lender's Commitment for that
Facility at the time the cancellation is effective;
12.2 PREPAYMENT FEE
(a) In the event of any prepayment or cancellation of the whole or any part of
Facility A, Facility B1 or Facility B2 as a result of a Sale, Merger or
Refinancing the Company shall pay to the Agent (for the account of each
Lender) a fee in the Base Currency of 1 per cent. of the aggregate amount
so prepaid or cancelled (the PREPAYMENT FEE").
(b) The distribution of the Prepayment Fee by the Agent shall be based on the
percentage participation of each of the Lenders' in the Total Facility A
Commitments or Total Facility B1 Commitments or Total Facility B2
Commitments, as relevant.
(c) The Prepayment Fee shall not be payable on:
(i) repayments of Facility A Loans in accordance with Clause 7.1
(Repayment of Facility A Loans);
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(ii) repayments of maturing Facility B1 Loans and Facility C Loans (where
the Total Facility B1 Commitments and/or Total Facility C Commitments
are not also cancelled); and
(iii) prepayments made in respect of any of the circumstances described in
Clauses 8.1 (Illegality), 8.4 (Mandatory Prepayment from Excess Cash
Flow) and 8.11 (Right of Prepayment and Cancellation).
12.3 AGENCY FEE
Allied Healthcare Holdings Limited shall pay to the Agent (for its own
account) an agency fee in the amount and at the times agreed in a Fee
Letter.
12.4 SECURITY AGENCY FEE
Allied Healthcare Holdings Limited shall pay to the Security Agent (for its
own account) a security agency fee in the amount and at the times agreed in
a Fee Letter.
12.5 MONITORING FEE
(a) The Company shall pay each of the Original Lenders a monthly monitoring fee
in the amount of (pound)2,500, debited on the first Business Day of each
Month (the "MONITORING FEE").
(b) The Monitoring Fee shall be waived by the Original Lenders until such time
as:
(i) the Interim Consultant is no longer engaged by the Group; or
(ii) the Interim Consultant has issued an IC Notice (as defined in Clause
22.23 (Interim Consultant)),
and
(i) Facility C has not been repaid in full and all Facility C Commitments
have been cancelled in full; or
(ii) the ratio of Net Borrowings to EBITDA for any Relevant Period is more
than 3.0 to 1.0 for two consecutive covenant test dates,
in which case the Monitoring Fee shall become payable thereafter.
12.6 ARRANGEMENT FEE
Allied Healthcare Holdings Limited shall pay to the Arranger an arrangement
fee in the amount and at the times agreed in a Fee Letter.
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SECTION 6
ADDITIONAL PAYMENT OBLIGATIONS
13. TAX GROSS UP AND INDEMNITIES
13.1 DEFINITIONS
(a) In this Agreement:
"PROTECTED PARTY" means a Finance Party which is or will be subject to any
liability, or required to make any payment, for or on account of Tax in
relation to a sum received or receivable (or any sum deemed for the
purposes of Tax to be received or receivable) under a Finance Document.
"QUALIFYING LENDER" means:
(i) a Lender (other than a Lender within sub-paragraph (ii) below) which
is beneficially entitled to interest payable to that Lender in
respect of an advance under a Finance Document and is:
(A) a Lender:
1. which is a bank (as defined for the purpose of section
349 of the Taxes Act) making an advance under a Finance
Document; or
2. in respect of an advance made under a Finance Document
by a person that was a bank (as defined for the purpose
of section 349 of the Taxes Act) at the time that that
advance was made,
and which is within the charge to United Kingdom corporation
tax as respects any payments of interest made in respect of
that advance; or
(B) a Lender which is:
1. a company resident in the United Kingdom for United
Kingdom tax purposes;
2. a partnership each member of which is:
(i) a company so resident in the United Kingdom; or
(ii) a company not so resident in the United Kingdom
which carries on a trade in the United Kingdom
through a permanent establishment and which brings
into account in computing its chargeable profits
(for the purposes of section 11(2) of the Taxes
Act) the whole of any share of interest payable in
respect of that advance that falls to it by reason
of sections 114 and 115 of the Taxes Act;
3. a company not so resident in the United Kingdom which
carries on a trade in the United Kingdom through a
permanent establishment and which brings into account
interest payable in respect of that advance in computing
the chargeable profits (for the purposes of section
11(2) of the Taxes Act) of that company; or
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(C) a Treaty Lender; or
(ii) a building society (as defined for the purpose of section 477A of
the Taxes Act).
"TAX CONFIRMATION" means a confirmation by a Lender that the person
beneficially entitled to interest payable to that Lender in respect of an
advance under a Finance Document is either:
(v) a company resident in the United Kingdom for United Kingdom tax
purposes; or
(vi) a partnership each member of which is:
(A) a company so resident in the United Kingdom; or
(B) a company not so resident in the United Kingdom which carries
on a trade in the United Kingdom through a permanent
establishment and which brings into account in computing its
chargeable profits (for the purposes of section 11(2) of the
Taxes Act) the whole of any share of interest payable in
respect of that advance that falls to it by reason of sections
114 and 115 of the Taxes Act; or
(vii) a company not so resident in the United Kingdom which carries on a
trade in the United Kingdom through a permanent establishment and
which brings into account interest payable in respect of that
advance in computing the chargeable profits (for the purposes of
section 11(2) of the Taxes Act) of that company.
"TAX CREDIT" means a credit against, relief or remission for, or repayment
of any Tax.
"TAX DEDUCTION" means a deduction or withholding for or on account of Tax
from a payment under a Finance Document.
"TAX PAYMENT" means either the increase in a payment made by the Parent or
an Obligor to a Finance Party under Clause 13.2 (Tax gross-up) or a
payment under Clause 13.3 (Tax indemnity).
"TREATY LENDER" means a Lender which:
(i) is treated as a resident of a Treaty State for the purposes of the
Treaty;
(ii) does not carry on a business in the United Kingdom through a
permanent establishment with which that Lender's participation in
the Loans is effectively connected; and
(iii) fulfils any conditions which must be fulfilled under the double
taxation agreement for residents of that Treaty State to obtain
exemption from United Kingdom taxation on interest.
"TREATY STATE" means a jurisdiction having a double taxation agreement (a
"TREATY") with the United Kingdom which makes provision for full exemption
from tax imposed by the United Kingdom on interest.
"UK NON-BANK LENDER" means:
(i) where a Lender becomes a Party on the day on which this Agreement is
entered into, a Lender listed in Part III of Schedule 1 (The
Original Parties); and
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(ii) where a Lender becomes a Party after the day on which this Agreement
is entered into, a Lender which gives a Tax Confirmation in the
Transfer Certificate which it executes on becoming a Party.
(b) Unless a contrary indication appears, in this Clause 13 a reference to
"determines" or "determined" means a determination made in the absolute
discretion of the person making the determination.
13.2 TAX GROSS-UP
(a) The Parent and each Obligor shall make all payments to be made by it
without any Tax Deduction, unless a Tax Deduction is required by law.
(b) The Company shall promptly upon becoming aware that the Parent or an
Obligor must make a Tax Deduction (or that there is any change in the rate
or the basis of a Tax Deduction) notify the Agent accordingly. Similarly,
a Lender shall notify the Agent on becoming so aware in respect of a
payment payable to that Lender. If the Agent receives such notification
from a Lender it shall notify the Company and the Parent or that Obligor.
(c) If a Tax Deduction is required by law to be made by the Parent or an
Obligor, the amount of the payment due from the Parent or that Obligor
shall be increased to an amount which (after making any Tax Deduction)
leaves an amount equal to the payment which would have been due if no Tax
Deduction had been required.
(d) The Parent or an Obligor is not required to make an increased payment to a
Lender under paragraph (c) above for a Tax Deduction in respect of tax
imposed by the United Kingdom from a payment of interest on a Loan, if on
the date on which the payment falls due:
(i) the payment could have been made to the relevant Lender without a
Tax Deduction if it was a Qualifying Lender, but on that date that
Lender is not or has ceased to be a Qualifying Lender other than as
a result of any change after the date it became a Lender under this
Agreement in (or in the interpretation, administration or
application of) any law or Treaty, or any published practice or
concession of any relevant taxing authority; or
(ii)
(A) the relevant Lender is a Qualifying Lender solely under
sub-paragraph (i)(B) of the definition of Qualifying Lender;
(B) the Board of the Inland Revenue has given (and not revoked) a
direction (a "DIRECTION") under section 349C of the Taxes Act
(as that provision has effect on the date on which the
relevant Lender became a Party) which relates to that payment
and that Lender has received from the Parent, that Obligor or
the Company a certified copy of that Direction; and
(C) the payment could have been made to the Lender without any Tax
Deduction in the absence of that Direction; or
(iii) the relevant Lender is a Qualifying Lender solely under
sub-paragraph (i)(B) of the definition of Qualifying Lender and it
has not, other than by reason of any change after the date of this
Agreement in (or in the interpretation, administration or
application of)
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any law or any published practice or concession of any relevant
taxing authority, given a Tax Confirmation to the Company; or
(iv) the relevant Lender is a Treaty Lender and the Parent or the Obligor
making the payment is able to demonstrate that the payment could
have been made to the Lender without the Tax Deduction had that
Lender complied with its obligations under paragraph (g) below.
(e) If the Parent or an Obligor is required to make a Tax Deduction, the
Parent or that Obligor shall make that Tax Deduction and any payment
required in connection with that Tax Deduction within the time allowed and
in the minimum amount required by law.
(f) Within thirty days of making either a Tax Deduction or any payment
required in connection with that Tax Deduction, the Parent or the Obligor
making that Tax Deduction shall deliver to the Agent for the Finance Party
entitled to the payment evidence reasonably satisfactory to that Finance
Party that the Tax Deduction has been made or (as applicable) any
appropriate payment paid to the relevant taxing authority.
(g) A Treaty Lender and the Parent or each Obligor which makes a payment to
which that Treaty Lender is entitled shall co-operate in completing any
procedural formalities necessary for the Parent or that Obligor to obtain
authorisation to make that payment without a Tax Deduction.
(h) A UK Non-Bank Lender which becomes a Party on the day on which this
Agreement is entered into gives a Tax Confirmation to the Company by
entering into this Agreement.
(i) A UK Non-Bank Lender shall promptly notify the Company and the Agent if
there is any change in the position from that set out in the Tax
Confirmation.
13.3 TAX INDEMNITY
(a) The Borrowers shall (within three Business Days of demand by the Agent)
pay to a Protected Party an amount equal to the loss, liability or cost
which that Protected Party determines will be or has been (directly or
indirectly) suffered for or on account of Tax by that Protected Party in
respect of a Finance Document.
(b) Paragraph (a) above shall not apply:
(i) with respect to any Tax assessed on a Finance Party:
(A) under the law of the jurisdiction in which that Finance Party
is incorporated or, if different, the jurisdiction (or
jurisdictions) in which that Finance Party is treated as
resident for tax purposes; or
(B) under the law of the jurisdiction in which that Finance
Party's Facility Office is located in respect of amounts
received or receivable in that jurisdiction,
if that Tax is imposed on or calculated by reference to the net income
received or receivable (but not any sum deemed to be received or
receivable) by that Finance Party; or
(ii) to the extent a loss, liability or cost:
(A) is compensated for by an increased payment under Clause 13.2
(Tax gross-up); or
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(B) would have been compensated for by an increased payment under
Clause 13.2 (Tax gross-up) but was not so compensated solely
because one of the exclusions in paragraph (d) of Clause 13.2
(Tax gross-up) applied.
(c) A Protected Party making, or intending to make, a claim under paragraph
(a) above shall promptly notify the Agent of the event which will give, or
has given, rise to the claim, following which the Agent shall notify the
Company.
(d) A Protected Party shall, on receiving a payment from the Parent or an
Obligor under this Clause 13.3, notify the Agent.
13.4 TAX CREDIT
If the Parent or an Obligor makes a Tax Payment and the relevant Finance
Party (acting in good faith) determines that:
(a) a Tax Credit is attributable either to an increased payment of which
that Tax Payment forms part, or to that Tax Payment; and
(b) that Finance Party has obtained, utilised and retained that Tax
Credit,
the Finance Party shall pay an amount to the Parent or the Obligor which
that Finance Party determines will leave it (after that payment) in the
same after-Tax position as it would have been in had the Tax Payment not
been required to be made by the Parent or the Obligor.
13.5 STAMP TAXES
The Borrowers shall pay and, within three Business Days of demand,
indemnify each Finance Party against any cost, loss or liability that
Finance Party incurs in relation to all stamp duty, stamp duty land tax,
registration and other similar Taxes payable in respect of any Finance
Document.
13.6 VALUE ADDED TAX
(a) All amounts set out, or expressed to be payable under a Finance Document
by any Party to a Finance Party which (in whole or in part) constitute the
consideration for VAT purposes shall be deemed to be exclusive of any VAT
which is chargeable on such supply, and accordingly, subject to paragraph
(c) below, if VAT is chargeable on any supply made by any Finance Party to
any Party under a Finance Document, that Party shall pay to the Finance
Party (in addition to and at the same time as paying the consideration) an
amount equal to the amount of the VAT (and such Finance Party shall
promptly provide an appropriate VAT invoice to such Party).
(b) If VAT is chargeable on any supply made by any Finance Party (the
"SUPPLIER") to any other Finance Party (the "RECIPIENT") under a Finance
Document, and any Party (the "RELEVANT PARTY") is required by the terms of
any Finance Document to pay an amount equal to the consideration for such
supply to the Supplier (rather than being required to reimburse the
Recipient in respect of that consideration), such Party shall also pay to
the Supplier (in addition to and at the same time as paying such amount)
an amount equal to the amount of such VAT. The Recipient will promptly pay
to the Relevant Party an amount equal to any credit or repayment from the
relevant tax authority which it reasonably determines relates to the VAT
chargeable on that supply.
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(c) Where a Finance Document requires any Party to reimburse a Finance Party
for any costs or expenses, that Party shall also at the same time pay and
indemnify the Finance Party against all VAT incurred by the Finance Party
in respect of the costs or expenses.
14. INCREASED COSTS
14.1 INCREASED COSTS
(a) Subject to Clause 14.3 (Exceptions) the Borrowers shall, within three
Business Days of a demand by the Agent, pay for the account of a Finance
Party the amount of any Increased Costs incurred by that Finance Party or
any of its Affiliates as a result of (i) the introduction of or any change
in (or in the interpretation, administration or application of) any law or
regulation or (ii) compliance with any law or regulation made after the
date of this Agreement.
(b) In this Agreement "INCREASED COSTS" means:
(i) a reduction in the rate of return from the Facility or on a Finance
Party's (or its Affiliate's) overall capital;
(ii) an additional or increased cost; or
(iii) a reduction of any amount due and payable under any Finance
Document,
which is incurred or suffered by a Finance Party or any of its Affiliates
to the extent that it is attributable to that Finance Party having entered
into its Commitment or funding or performing its obligations under any
Finance Document.
14.2 INCREASED COST CLAIMS
(a) A Finance Party intending to make a claim pursuant to Clause 14.1
(Increased costs) shall notify the Agent of the event giving rise to the
claim, following which the Agent shall promptly notify the Company.
(b) Each Finance Party shall, as soon as practicable after a demand by the
Agent, provide a certificate confirming the amount of its Increased Costs.
14.3 EXCEPTIONS
(a) Clause 14.1 (Increased costs) does not apply to the extent any Increased
Cost is:
(i) attributable to a Tax Deduction required by law to be made by the
Parent or an Obligor;
(ii) compensated for by Clause 13.3 (Tax indemnity) (or would have been
compensated for under Clause 13.3 (Tax indemnity) but was not so
compensated solely because any of the exclusions in paragraph (b) of
Clause 13.3 (Tax indemnity) applied);
(iii) compensated for by the payment of the Mandatory Cost; or
(iv) attributable to the wilful breach by the relevant Finance Party or
its Affiliates of any law or regulation.
(b) In this Clause 14.3, a reference to a "Tax Deduction" has the same meaning
given to the term in Clause 13.1 (Definitions).
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15. OTHER INDEMNITIES
15.1 CURRENCY INDEMNITY
(a) If any sum due from the Parent or an Obligor under the Finance Documents
(a "SUM"), or any order, judgment or award given or made in relation to a
Sum, has to be converted from the currency (the "FIRST CURRENCY") in which
that Sum is payable into another currency (the "SECOND CURRENCY") for the
purpose of:
(i) making or filing a claim or proof against the Parent or that
Obligor;
(ii) obtaining or enforcing an order, judgment or award in relation to
any litigation or arbitration proceedings,
the Parent or that Obligor shall as an independent obligation, within
three Business Days of demand, indemnify each Finance Party to whom that
Sum is due against any cost, loss or liability arising out of or as a
result of the conversion including any discrepancy between (A) the rate of
exchange used to convert that Sum from the First Currency into the Second
Currency and (B) the rate or rates of exchange available to that person at
the time of its receipt of that Sum.
(b) The Parent and each Obligor waives any right it may have in any
jurisdiction to pay any amount under the Finance Documents in a currency
or currency unit other than that in which it is expressed to be payable.
15.2 OTHER INDEMNITIES
The Borrowers shall (or shall procure that the Parent or an Obligor will),
within three Business Days of demand, indemnify each Finance Party against
any cost, loss or liability incurred by that Finance Party as a result of:
(a) the occurrence of any Event of Default;
(b) a failure by the Parent or an Obligor to pay any amount due under a
Finance Document on its due date, including without limitation, any
cost, loss or liability arising as a result of Clause 28 (Sharing
among the Finance Parties);
(c) funding, or making arrangements to fund, its participation in a Loan
requested by a Borrower in a Utilisation Request but not made by
reason of the operation of any one or more of the provisions of this
Agreement (other than by reason of default or negligence by that
Finance Party alone); or
(d) a Loan (or part of a Loan) not being prepaid in accordance with a
notice of prepayment given by a Borrower or the Company.
15.3 INDEMNITY TO THE AGENT AND THE SECURITY AGENT
The Borrowers shall promptly indemnify the Agent and the Security Agent
against any cost, loss or liability incurred by the Agent (acting
reasonably) as a result of:
(a) investigating any event which it reasonably believes is a Default;
(b) entering into or performing any foreign exchange contract for the
purposes of paragraph (b) of Clause 6.3 (Change of currency); or
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(c) acting or relying on any notice, request or instruction which it
reasonably believes to be genuine, correct and appropriately
authorised.
16. MITIGATION BY THE LENDERS
16.1 MITIGATION
(a) Each Finance Party shall, in consultation with the Company, take all
reasonable steps to mitigate any circumstances which arise and which would
result in any amount becoming payable under or pursuant to, or cancelled
pursuant to, any of Clause 8.1 (Illegality), Clause 13 (Tax gross-up and
indemnities), Clause 14 (Increased costs) or paragraph 3 of Schedule 4
(Mandatory Cost Formula) including (but not limited to) transferring its
rights and obligations under the Finance Documents to another Affiliate or
Facility Office.
(b) Paragraph (a) above does not in any way limit the obligations of the
Parent or any Obligor under the Finance Documents.
16.2 LIMITATION OF LIABILITY
(a) The Borrowers shall indemnify each Finance Party for all costs and
expenses reasonably incurred by that Finance Party as a result of steps
taken by it under Clause 16.1 (Mitigation).
(b) A Finance Party is not obliged to take any steps under Clause 16.1
(Mitigation) if, in the opinion of that Finance Party (acting reasonably),
to do so might be prejudicial to it.
17. COSTS AND EXPENSES
17.1 TRANSACTION EXPENSES
The Borrowers shall promptly on demand pay the Agent, the Security Agent
and the Arranger the amount of all costs and expenses (including legal
fees) reasonably incurred by any of them in connection with the
negotiation, preparation, printing, execution and syndication of:
(a) this Agreement and any other documents referred to in this
Agreement; and
(b) any other Finance Documents executed after the date of this
Agreement.
17.2 AMENDMENT COSTS
If (a) the Parent or an Obligor requests an amendment, waiver or consent
or (b) an amendment is required pursuant to Clause 29.9 (Change of
currency), the Borrowers shall, within three Business Days of demand,
reimburse the Agent and the Security Agent for the amount of all costs and
expenses (including legal fees) reasonably incurred by the Agent or the
Security Agent in responding to, evaluating, negotiating or complying with
that request or requirement.
17.3 ENFORCEMENT COSTS
The Borrowers shall, within three Business Days of demand, pay to each
Secured Party the amount of all costs and expenses (including legal fees)
incurred by that Secured Party in connection with the enforcement of, or
the preservation of any rights under, any Finance Document.
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17.4 SECURITY AGENT EXPENSES
Each Borrower shall promptly on demand pay the Security Agent the amount
of all costs and expenses (including legal fees) reasonably incurred by it
in connection with the administration or release of any Security created
pursuant to any Security Document.
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SECTION 7
GUARANTEE
18. GUARANTEE AND INDEMNITY
18.1 GUARANTEE AND INDEMNITY
Each Guarantor and the Parent irrevocably and unconditionally jointly and
severally:
(a) guarantees to each Secured Party punctual performance by each Borrower
of all that Borrower's obligations under the Finance Documents;
(b) undertakes with each Secured Party that whenever a Borrower does not
pay any amount when due under or in connection with any Finance
Document, that Guarantor or the Parent shall immediately on demand pay
that amount as if it was the principal obligor; and
(c) indemnifies each Secured Party immediately on demand against any cost,
loss or liability suffered by that Secured Party if any obligation
guaranteed by it is or becomes unenforceable, invalid or illegal. The
amount of the cost, loss or liability shall be equal to the amount
which that Secured Party would otherwise have been entitled to
recover.
18.2 CONTINUING GUARANTEE
This guarantee is a continuing guarantee and will extend to the ultimate
balance of sums payable by the Parent or any Obligor under the Finance
Documents, regardless of any intermediate payment or discharge in whole or
in part.
18.3 REINSTATEMENT
If any payment by an Obligor or the Parent or any discharge given by a
Secured Party (whether in respect of the obligations of any Obligor or the
Parent or any security for those obligations or otherwise) is avoided or
reduced as a result of insolvency or any similar event:
(a) the liability of each Obligor and the Parent shall continue as if the
payment, discharge, avoidance or reduction had not occurred; and
(b) each Secured Party shall be entitled to recover the value or amount of
that security or payment from each Obligor and the Parent, as if the
payment, discharge, avoidance or reduction had not occurred.
18.4 WAIVER OF DEFENCES
The obligations of each Guarantor and the Parent under this Clause 18 will
not be affected by an act, omission, matter or thing which, but for this
Clause, would reduce, release or prejudice any of its obligations under
this Clause 18 (without limitation and whether or not known to it or any
Secured Party) including:
(a) any time, waiver or consent granted to, or composition with, any
Obligor or the Parent or other person;
(b) the release of any other Obligor or the Parent or any other person
under the terms of any composition or arrangement with any creditor of
any member of the Group;
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(c) the taking, variation, compromise, exchange, renewal or release of, or
refusal or neglect to perfect, take up or enforce, any rights against,
or security over assets of, any Obligor or the Parent or other person
or any non-presentation or non-observance of any formality or other
requirement in respect of any instrument or any failure to realise the
full value of any security;
(d) any incapacity or lack of power, authority or legal personality of or
dissolution or change in the members or status of an Obligor or the
Parent or any other person;
(e) any amendment (however fundamental) or replacement of a Finance
Document or any other document or security;
(f) any unenforceability, illegality or invalidity of any obligation of
any person under any Finance Document or any other document or
security; or
(g) any insolvency or similar proceedings.
18.5 IMMEDIATE RECOURSE
Each Guarantor and the Parent waives any right it may have of first
requiring any Secured Party (or any trustee or agent on its behalf) to
proceed against or enforce any other rights or security or claim payment
from any person before claiming from that Guarantor or the Parent under
this Clause 18. This waiver applies irrespective of any law or any
provision of a Finance Document to the contrary.
18.6 APPROPRIATIONS
Until all amounts which may be or become payable by the Obligors or the
Parent under or in connection with the Finance Documents have been
irrevocably paid in full, each Secured Party (or any trustee or agent on
its behalf) may:
(a) refrain from applying or enforcing any other moneys, security or
rights held or received by that Secured Party (or any trustee or
agent on its behalf) in respect of those amounts, or apply and
enforce the same in such manner and order as it sees fit (whether
against those amounts or otherwise) and no Guarantor or the Parent
shall be entitled to the benefit of the same; and
(b) hold in an interest-bearing suspense account any moneys received from
any Guarantor or the Parent or on account of any Guarantor's or the
Parent's liability under this Clause 18.
18.7 DEFERRAL OF GUARANTORS' RIGHTS
Until all amounts which may be or become payable by the Obligors and the
Parent under or in connection with the Finance Documents have been
irrevocably paid in full and unless the Agent or, as the case may be, the
Security Agent otherwise directs, no Guarantor or the Parent will exercise
any rights which it may have by reason of performance by it of its
obligations under the Finance Documents:
(a) to be indemnified by an Obligor or the Parent;
(b) to claim any contribution from any other guarantor of any Obligor's or
the Parent's obligations under the Finance Documents; and/or
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(c) to take the benefit (in whole or in part and whether by way of
subrogation or otherwise) of any rights of the Secured Parties under
the Finance Documents or of any other guarantee or security taken
pursuant to, or in connection with, the Finance Documents by any
Secured Party.
18.8 RELEASE OF GUARANTORS' RIGHT OF CONTRIBUTION
If any Guarantor (a "RETIRING GUARANTOR") ceases to be a Guarantor in
accordance with the terms of the Finance Documents for the purpose of any
sale or other disposal of that Retiring Guarantor then on the date such
Retiring Guarantor ceases to be a Guarantor:
(a) that Retiring Guarantor is released by each other Guarantor from any
liability (whether past, present or future and whether actual or
contingent) to make a contribution to any other Guarantor arising by
reason of the performance by any other Guarantor of its obligations
under the Finance Documents; and
(b) each other Guarantor waives any rights it may have by reason of the
performance of its obligations under the Finance Documents to take the
benefit (in whole or in part and whether by way of subrogation or
otherwise) of any rights of the Secured Parties under any Finance
Document or of any other security taken pursuant to, or in connection
with, any Finance Document where such rights or security are granted
by or in relation to the assets of the Retiring Guarantor.
In this Clause 18.8 a reference to "Guarantor" includes the Parent.
18.9 ADDITIONAL SECURITY
This guarantee is in addition to and is not in any way prejudiced by any
other guarantee or security now or subsequently held by any Secured Party.
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SECTION 8
REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT
19. REPRESENTATIONS
(a) Each Obligor makes the representations and warranties set out in this
Clause 19 to each Secured Party on the date of this Agreement.
(b) The Parent makes the representations and warranties set out in this Clause
19, other than the representations set out in Clause 19.7 (Deduction of
Tax) Clause 19.12(a) (Pari passu ranking), Clause 19.14 (Title) and Clause
19.18 (Material Subsidiaries), for itself and each member of the Group to
each Secured Party on the date of this Agreement.
19.1 STATUS
(a) It is a corporation, duly incorporated and validly existing under the law
of its jurisdiction of incorporation.
(b) It has the power to own its assets and carry on its business as it is
being conducted.
19.2 BINDING OBLIGATIONS
The obligations expressed to be assumed by it in each Finance Document are
legal, valid, binding and enforceable, subject to:
(a) the Reservations; or
(b) in the case of any Security Document, the requirements specified at
the end of Clause 19.5 (Validity and admissibility in evidence).
19.3 NON-CONFLICT WITH OTHER OBLIGATIONS
The entry into and performance by it of, and the transactions contemplated
by, the Finance Documents do not and will not conflict with:
(a) any law or regulation applicable to it;
(b) its constitutional documents; or
(c) any agreement or instrument binding upon it or any of its assets in
any material respect,
nor (except as provided in any Security Document) result in the existence
of, or oblige it to create, any Security over any of its assets.
19.4 POWER AND AUTHORITY
It has the power to enter into, perform and deliver, and has taken all
necessary action to authorise its entry into, performance and delivery of,
the Finance Documents to which it is a party and the transactions
contemplated by those Finance Documents.
19.5 VALIDITY AND ADMISSIBILITY IN EVIDENCE
All Authorisations required or desirable:
(a) to enable it lawfully to enter into, exercise its rights and comply
with its obligations in the Finance Documents to which it is a party;
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(b) to make the Finance Documents to which it is a party admissible in
evidence in its jurisdiction of incorporation; and
(c) to enable it to create the Security to be created by it pursuant to
any Security Document and to ensure that such Security has the
priority and ranking it is expressed to have, subject to the
Reservations,
have been obtained or effected and are in full force and effect save for
the making of the appropriate registrations of the Security Documents with
the Companies Registration Office and HM Land Registry.
19.6 GOVERNING LAW AND ENFORCEMENT
(a) The choice of English law as the governing law of the Finance Documents
will be recognised and enforced in its jurisdiction of incorporation.
(b) Any judgment obtained in England in relation to a Finance Document will be
recognised and enforced in its jurisdiction of incorporation.
19.7 DEDUCTION OF TAX
It is not required to make any deduction for or on account of Tax from any
payment it may make under any Finance Document.
19.8 NO FILING OR STAMP TAXES
Under the law of its jurisdiction of incorporation it is not necessary
that the Finance Documents be filed, recorded or enrolled with any court
or other authority in that jurisdiction or that any stamp, registration or
similar tax be paid on or in relation to the Finance Documents or the
transactions contemplated by the Finance Documents.
19.9 NO DEFAULT
(a) No Event of Default is continuing or might reasonably be expected to
result from the making of any Utilisation.
(b) No other event or circumstance is outstanding which constitutes a default
under any other agreement or instrument which is binding on it or any of
its Subsidiaries or to which its (or any of its Subsidiaries') assets are
subject which might have a Material Adverse Effect.
19.10 NO MISLEADING INFORMATION
(a) Any factual information provided by the Parent or any member of the Group
for the purposes of the Information Package was true and accurate in all
material respects as at the date it was provided or as at the date (if
any) at which it is stated.
(b) The financial projections contained in the Information Package have been
prepared in good faith on the basis of recent historical information and
on the basis of reasonable assumptions, it being recognised that these
projections relate to future events, they are not to be viewed as fact,
and actual results may vary by a material amount.
(c) Nothing has occurred or been omitted from the Information Package and no
information has been given or withheld that results in the information
contained in the Information Package being untrue or misleading in any
material respect.
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19.11 FINANCIAL STATEMENTS
(a) Its Original Financial Statements were prepared in accordance with GAAP
consistently applied.
(b) Its Original Financial Statements fairly represent its financial condition
and operations (consolidated in the case of the Company) as at the end of
and for the relevant financial year.
(c) There has been no material adverse change in its business or financial
condition (or the business or consolidated financial condition of the
Group, in the case of the Company) since 30 September 2003.
19.12 PARI PASSU RANKING
(a) Subject to the requirements specified at the end of Clause 19.5 (Validity
and admissibility in evidence) and to the Reservations, each Security
Document creates (or, once entered into, will create) in favour of the
Security Agent for the benefit of the Secured Parties the Security which
it is expressed to create with the ranking and priority it is expressed to
have.
(b) Without limiting paragraph (a) above, its payment obligations under the
Finance Documents rank at least pari passu with the claims of all its
other unsecured and unsubordinated creditors, except for obligations
mandatorily preferred by law applying to companies generally.
19.13 NO PROCEEDINGS PENDING OR THREATENED
No litigation, arbitration or administrative proceedings of or before any
court, arbitral body or agency which, if adversely determined, might
reasonably be expected to have a Material Adverse Effect have (to the best
of its knowledge and belief) been started or threatened against it or any
of its Subsidiaries.
19.14 TITLE
It has good and marketable title to the assets subject to the Security
created by it pursuant to any Security Document, free from all Security
except the Security created pursuant to, or permitted by, the Finance
Documents.
19.15 ENVIRONMENTAL LAWS AND LICENCES
It and each of its Subsidiaries has:
(a) complied with all Environmental Laws to which it may be subject;
(b) obtained all Environmental Licences required or desirable in
connection with its business; and
(c) complied with the terms of those Environmental Licences,
in each case where failure to do so would be reasonably likely to have a
Material Adverse Effect.
19.16 ENVIRONMENTAL RELEASES
No:
(a) property currently or previously owned, leased, occupied or controlled
by it or any of its Subsidiaries (including any offsite waste
management or disposal location utilised by it or any of its
Subsidiaries) is contaminated with any Hazardous Substance; and
(b) discharge, release, leaching, migration or escape of any Hazardous
Substance into the Environment has occurred or is occurring on, under
or from that property,
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in each case in circumstances where this might have a Material Adverse
Effect.
19.17 EMPLOYEE BENEFIT PLANS
(a) None of the Parent, an Obligor or an ERISA Affiliate has incurred or could
be reasonably expected to incur any liability to, or on account of, a
Multiemployer Plan as a result of a violation of Section 515 of ERISA or
pursuant to Section 4201, 4204 or 4212(c) of ERISA.
(b) Except as could not reasonably be expected to have a Material Adverse
Effect, the fair market value of the assets of each Employee Plan subject
to Title IV of ERISA is at least equal to the present value of the
"benefit liabilities" (within the meaning of Section 4001(a)(16) of ERISA)
under that Employee Plan using the actuarial assumptions and methods used
by the actuary to that Employee Plan in its most recent valuation of that
Employee Plan.
(c) There is (to the best of each Obligor, the Parent's and each ERISA
Affiliates' knowledge and belief) no litigation, arbitration,
administrative proceeding or claim pending or threatened against or with
respect to any Employee Plan (other than routine claims for benefits)
which has or, if adversely determined, could reasonably be expected to
have, a Material Adverse Effect.
(d) Except as could not reasonably be expected to have a Material Adverse
Effect, none of the Parent, an Obligor or an ERISA Affiliate has incurred
or could reasonably be expected to incur liability to the PBGC.
(e) No ERISA Event has occurred or is reasonably likely to occur which could
reasonably be expected to result in liability which has had or would have
a Material Adverse Effect.
19.18 MATERIAL SUBSIDIARIES
(a) Each member of the Group which, as at the date of this Agreement, is a
Material Subsidiary is listed in Schedule 11.
(b) The percentage of the gross assets, gross revenues and EBIT of the Group
attributable to each such Material Subsidiary in accordance with the
definition of "Material Subsidiary" is accurately described in Schedule
11.
19.19 INSOLVENCY PROCEEDINGS
It has not taken any corporate action nor have any legal proceedings or
other procedure or step been taken, started or threatened in relation to
anything referred to in Clause 23.7 (Insolvency proceedings).
19.20 FINANCIAL ASSISTANCE MEMORANDUM
The memorandum provided by the Company to the Arranger on 16 July 2004 is
true and accurate in all material respects in relation to the acquisitions
that the Group has made that are to be refinanced, in part, by the
Facilities, and the steps that will be required to whitewash those
acquisitions in accordance with sections 155 to 158 of the Companies Xxx
0000.
19.21 REPETITION
The Repeating Representations (and, in the case of paragraph (b) below,
the representations set out in Clauses 19.5 (Validity and admissibility in
evidence), 19.7 (Deduction of Tax), and 19.8 (No filing or stamp taxes))
are deemed to be made by the Parent and each Obligor by reference to the
facts and circumstances then existing on:
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(a) the date of each Utilisation Request and the first day of each
Interest Period; and
(b) in the case of an Additional Obligor, the day on which the company
becomes (or it is proposed that the company becomes) an Additional
Obligor.
20. INFORMATION UNDERTAKINGS
The undertakings in this Clause 20 remain in force from the date of this
Agreement for so long as any amount is outstanding under the Finance
Documents or any Commitment is in force.
20.1 FINANCIAL STATEMENTS
The Company shall supply to the Agent in sufficient copies for all the
Lenders:
(a) as soon as the same become available, but in any event within 120 days
after the end of each of its financial years:
(i) its audited consolidated financial statements for that financial
year; and
(ii) the audited financial statements of the Parent and each Borrower
for that financial year; and
(b) as soon as the same become available, but in any event within 90 days
after the end of each half of each of its financial years the
consolidated financial statements of the Parent and the Group for that
financial half year; and
(c) as soon as the same become available, but in any event within 150 days
after the end of each of its financial years the audited financial
statements of the Parent and each Obligor for that financial year; and
(d) as soon as the same become available, but in any event within 45 days
after the end of each of Accounting Quarter the consolidated financial
statements of the Parent and the Group for that Accounting Quarter;
and
(e) as soon as the same become available, but in any event on or before
the beginning of its financial year, a budget approved by the Agent
(acting on the instructions of the Majority Lenders acting reasonably)
including the budgeted expenses for the Parent for that financial
year.
20.2 QUARTERLY TRADING UPDATE PRESENTATIONS
(a) The Parent or the Company shall provide the Lenders with four quarterly
trading update presentations each of which shall take place within 60 days
of the relevant Accounting Quarter Date or within 75 days of such date if
that corresponds also to the financial year end.
(b) The Parent or the Company shall provide the first quarterly trading update
presentation following the 31 December 2006 Accounting Quarter Date.
(c) The quarterly trading update presentations shall cover the 12 month period
immediately after the relevant Accounting Quarter Date and shall include,
but not be limited to:
(i) the trading performance of the Group and each of its key divisions
for the relevant Accounting Quarter and financial year to date,
compared to the prior year and to the Budget;
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(ii) the balance sheet and cash flows of the Group and each of its key
divisions for the relevant Accounting Quarter and financial year to
date, compared to the prior year and to the Budget;
(iii) the Group's performance in meeting key performance indicators as
identified in the GT Report together with any other key performance
indicators considered relevant by the Group;
(iv) progress on the intended separation of the roles of Chairman and
Chief Executive Officer;
(v) progress in and the results of any strategic review in respect of the
Parent and/or the Group;
(vi) any other matters or developments which in the reasonable opinion of
the board of directors of the Parent are, or are likely to,
materially impact on the interests of the Lenders; and
(vii) any other matters reasonably requested by the Lenders.
20.3 COMPLIANCE CERTIFICATE
(a) The Company shall supply to the Agent, with each set of financial
statements delivered pursuant to paragraph (a)(i) or (d) of Clause 20.1
(Financial statements):
(i) a Compliance Certificate setting out:
(aa) (in reasonable detail) computations as to compliance with Clause
21 (Financial covenants) as at the date as at which those
financial statements were drawn up;
and
(bb)
(A) listing the Material Subsidiaries as at the end of the
Relevant Period; and
(B) setting out in reasonable detail and in a form satisfactory
to the Agent the computations necessary to justify the
inclusions in, and exclusions from, that list; and
(ii) a compliance certificate from the auditors in an Agreed Form (in
connection with the financial statements delivered pursuant to
paragraph (a)(i) of Clause 20.1 (Financial Statements) setting out a
computation of the Excess Cash Flow, together with a summary
explaining in reasonable detail how the relevant amount has been
calculated.
(b) Each Compliance Certificate shall be signed by two directors of the
Company (one of whom shall be the Finance Director) and, if required to be
delivered with the financial statements delivered pursuant to paragraph
(a)(i) of Clause 20.1 (Financial statements), shall be reported on by the
Company's auditors in the form agreed by the Company and all the Lenders
before the date of this Agreement.
20.4 REQUIREMENTS AS TO FINANCIAL STATEMENTS
(a) Each set of financial statements delivered by the Company pursuant to
Clause 20.1 (Financial statements) shall be certified by a director of the
relevant company as fairly representing its (or,
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as the case may be, its consolidated) financial condition and operations
as at the end of and for the period in relation to which those financial
statements were drawn up.
(b) The Company shall procure that each set of financial statements of the
Parent or an Obligor delivered pursuant to 20.1 (Financial statements) is
prepared using GAAP, accounting practices and financial reference periods
consistent with those applied in the preparation of the Original Financial
Statements for the Parent or that Obligor unless, in relation to any set
of financial statements, it notifies the Agent that there has been a
change in GAAP, the accounting practices or reference periods and its
auditors (or, if appropriate, the auditors of the Parent or the Obligor)
deliver to the Agent:
(i) a description of any change necessary for those financial statements
to reflect the GAAP, accounting practices and reference periods upon
which the Parent's or that Obligor's Original Financial Statements
were prepared; and
(ii) sufficient information, in form and substance as may be reasonably
required by the Agent, to enable the Lenders to determine whether
Clause 21 (Financial covenants) has been complied with and make an
accurate comparison between the financial position indicated in those
financial statements and the Parent's or that Obligor's Original
Financial Statements.
Any reference in this Agreement to those financial statements shall be
construed as a reference to those financial statements as adjusted to
reflect the basis upon which the Original Financial Statements were
prepared.
20.5 INFORMATION: MISCELLANEOUS
The Company shall supply to the Agent (in sufficient copies for all the
Lenders, if the Agent so requests):
(a) all documents dispatched by the Company to its shareholders (or any
class of them) or its creditors generally at the same time as they
are dispatched;
(b) promptly upon becoming aware of them, the details of any litigation,
arbitration or administrative proceedings which are current,
threatened or pending against any member of the Group, and which
might, if adversely determined, have a Material Adverse Effect; and
(c) promptly, such further information regarding the financial condition,
business and operations of any member of the Group as any Secured
Party (through the Agent) may reasonably request.
20.6 NOTIFICATION OF DEFAULT
(a) The Parent and each Obligor shall notify the Agent of any Default (and the
steps, if any, being taken to remedy it) promptly upon becoming aware of
its occurrence (unless the Parent or that Obligor is aware that a
notification has already been provided by the Parent or another Obligor).
(b) Promptly upon a reasonable request by the Agent, the Company shall supply
to the Agent a certificate signed by two of its directors or senior
officers on its behalf certifying that no Default is continuing (or if a
Default is continuing, specifying the Default and the steps, if any, being
taken to remedy it).
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20.7 "KNOW YOUR CUSTOMER" CHECKS
(a) If:
(i) the introduction of or any change in (or in the interpretation,
administration or application of) any law or regulation made after
the date of this Agreement;
(ii) any change in the status of the Parent or an Obligor after the date
of this Agreement; or
(iii) a proposed assignment or transfer by a Lender of any of its rights
and obligations under this Agreement to a party that is not a Lender
prior to such assignment or transfer,
obliges the Agent or any Lender (or, in the case of paragraph (iii) above,
any prospective new Lender) to comply with "know your customer" or similar
identification procedures in circumstances where the necessary information
is not already available to it, the Parent and each Obligor shall promptly
upon the request of the Agent or any Lender supply, or procure the supply
of, such documentation and other evidence as is reasonably requested by
the Agent (for itself or on behalf of any Lender) or any Lender (for
itself or, in the case of the event described in paragraph (iii) above, on
behalf of any prospective new Lender) in order for the Agent, such Lender
or, in the case of the event described in paragraph (iii) above, any
prospective new Lender to carry out and be satisfied it has complied with
all necessary "know your customer" or other similar checks under all
applicable laws and regulations pursuant to the transactions contemplated
in the Finance Documents.
(b) Each Lender shall promptly upon the request of the Agent supply, or
procure the supply of, such documentation and other evidence as is
reasonably requested by the Agent (for itself) in order for the Agent to
carry out and be satisfied it has complied with all necessary "know your
customer" or other similar checks under all applicable laws and
regulations pursuant to the transactions contemplated in the Finance
Documents.
(c) The Company shall, by not less than 10 Business Days' prior written notice
to the Agent, notify the Agent (which shall promptly notify the Lenders)
of its intention to request that one of its Subsidiaries becomes an
Additional Obligor pursuant to Clause 25 (Changes to the Obligors).
(d) Following the giving of any notice pursuant to paragraph (c) above, if the
accession of such Additional Obligor obliges the Agent or any Lender to
comply with "know your customer" or similar identification procedures in
circumstances where the necessary information is not already available to
it, the Company shall promptly upon the request of the Agent or any Lender
supply, or procure the supply of, such documentation and other evidence as
is reasonably requested by the Agent (for itself or on behalf of any
Lender) or any Lender (for itself or on behalf of any prospective new
Lender) in order for the Agent or such Lender or any prospective new
Lender to carry out and be satisfied it has complied with necessary "know
your customer" or other similar checks under all applicable laws and
regulations pursuant to the accession of such Subsidiary to this Agreement
as an Additional Obligor.
20.8 MONTHLY REPORTING
The Company shall supply to the Agent (in sufficient quantities for all
the Lenders, if the Agent so requests), on a monthly basis, as soon as the
same are available (and in any event within 30
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days of the end of each Month), its Monthly Management Accounts for the
Group in the Agreed Form.
21. FINANCIAL COVENANTS
21.1 FINANCIAL CONDITION
The Company shall ensure that:
(a) the ratio of Cashflow to Total Debt Service for any Relevant Period
ending on a Relevant Date set out in the table below will not be less
than or, where the Cashflow is negative, more negative than the ratio
set out in column 1 opposite such Relevant Date in the table below;
(b) the ratio of EBITA to Interest Expense for any Relevant Period ending
on a Relevant Date set out in the table below will not be less than
the ratio set out in column 2 opposite such Relevant Date in the table
below;
(c) the ratio of Net Borrowings to EBITDA for any Relevant Period ending
on a Relevant Date set out in the table below will not exceed the
ratio set out in column 3 opposite such Relevant Date in the table
below;
1 2 3
CASHFLOW TO EBITA TO NET
TOTAL DEBT INTEREST BORROWINGS
RELEVANT DATE SERVICE EXPENSE TO EBITDA
------------- ----------- -------- ----------
31 Dec-06 No test 2.20 : 1 4.90 : 1
31 Mar-07 -0.15 : 1 1.70 : 1 4.90 : 1
30 Jun-07 0.32 : 1 1.60 : 1 4.50 : 1
30 Sep-07 0.35 : 1 1.90 : 1 3.90 : 1
31 Dec-07 0.70 : 1 2.20 : 1 3.50 : 1
31 Mar-08 0.90 : 1 2.30 : 1 3.30 : 1
30 Jun-08 0.90 : 1 2.40 : 1 3.10 : 1
30 Sep-08 0.95 : 1 2.50 : 1 3.00 : 1
31 Dec-08 1.00 : 1 2.75 : 1 3.00 : 1
The last day
of such Subsequent
Accounting Quarter 1.10 : 1 3.00 : 1 3.00 : 1
(d) the aggregate of indebtedness owed by Obligors under Ancillary Facilities
will not at any time be more than:
(i) in respect of Ancillary Facilities with Barclays Bank PLC,
(pound)5,000,000; and
(ii) in respect of Ancillary Facilities with Lloyds TSB Bank plc,
(pound)5,000,000,
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(or their equivalent in another currency or currencies).
21.2 GUARANTOR COVER
(a) Subject to Clause 25.4 (Additional Guarantors), the Company must ensure
that, from the first Utilisation Date, the aggregate gross assets,
turnover, and EBIT, of the Guarantors are not at any time less then 90 per
cent. of aggregate gross assets, turnover, and EBIT of the Group at that
time. For the avoidance of doubt the gross assets, turnover or EBIT of the
Parent shall not be taken into account under this Clause 21.2(a).
(b) For the purpose of this Clause 21.2:
(i) the turnover and profits before interest and taxation of a Guarantor
will be determined from its financial statements (unconsolidated if it
has Subsidiaries) based upon which the latest audited financial
statements of the Group have been prepared; and
(ii) if a company becomes a Guarantor after the date on which the latest
audited financial statements of the Group have been prepared, the
gross assets, turnover and profits before interest and taxation of
that Guarantor will be determined from its latest financial
statements.
21.3 FINANCIAL COVENANT CALCULATIONS
Borrowings, Cash and Deposits, EBIT, EBITA, EBITDA, Interest Expense, Net
Borrowings, Total Debt Service and Cashflow shall be calculated and
interpreted on a consolidated basis in accordance with the GAAP applicable
to the Original Financial Statements of the Company and shall be expressed
in sterling.
21.4 DEFINITIONS
In this Clause 21:
"BORROWINGS" means, as at any particular time, the aggregate outstanding
principal, capital or nominal amount (and any fixed or minimum premium
payable on prepayment or redemption) of the Financial Indebtedness of
members of the Group other than:
(a) any indebtedness referred to in paragraph (g) of the definition of
Financial Indebtedness and any guarantee or indemnity in respect of
that indebtedness; and
(b) the amount of any loans from the Parent to the Company subordinated
under the Subordination Deed or otherwise subordinated on terms
acceptable to the Agent (acting on the instructions of the Lenders).
For this purpose, any amount outstanding or repayable in a currency other
than sterling shall on that day be taken into account in its sterling
equivalent at the rate of exchange that would have been used had an audited
consolidated balance sheet of the Group been prepared as at that day in
accordance with the GAAP applicable to the Original Financial Statements of
the Company.
"CASH AND DEPOSITS" means the amount of any cash in hand or cash held at a
bank by a member of the Group or other form of deposit held by a member of
the Group, other than:
(a) cash or deposits subject to Security; or
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(b) cash or deposits that cannot be remitted to the United Kingdom to meet any
indebtedness due to any foreign exchange laws or other laws.
"EBIT" means, in relation to any Relevant Period, the total consolidated
operating profit of the Group for that Relevant Period
(a) before taking into account:
(i) Interest Expense;
(ii) Tax;
(iii) any share of the profit of any associated company or undertaking,
except for dividends received in cash by any member of the Group;
(iv) any currency exchange movements in respect of the term note issued by
the Company to the Parent in the sum of US$55,500,000 and dated on or
about 19 July 2004;
(v) extraordinary items, and
(b) for the purposes of the financial covenant calculations in Clause 21.1(b)
(Financial condition), after adding back the UK Corporate Charge and
deducting the US Administration Costs and adding back the IC Fees,
as determined (except as needed to reflect the terms of this Clause 21) from the
financial statements of the Group and Compliance Certificates delivered under
Clause 20.1 (Financial statements) and Clause 20.2 (Compliance Certificate).
For the purposes of the guarantor cover test in Clause 21.2(a) (Guarantor Cover)
and the definition of Material Subsidiary, the EBIT of a company shall take the
total operating profit for that company for a Relevant Period before taking into
account the items in paragraphs (a) and (b) above for that company.
"EBITA" means, in relation to any Relevant Period, EBITDA for that Relevant
Period deducting depreciation, as determined (except as needed to reflect the
terms of this Clause 21) from the financial statements of the Group and
Compliance Certificates delivered under Clause 20.1 and Clause 20.2, but in the
case of any Relevant Period which ends within the calendar year from and
including 31 December 2006 adding back the Additional Depreciation Charge.
"EBITDA" means, in relation to any Relevant Period, EBIT for that Relevant
Period, plus all amounts provided for depreciation and amortisation for that
Relevant Period, as determined (except as needed to reflect the terms of this
Clause 21) from the financial statements of the Group and Compliance
Certificates delivered under Clause 20.1 and Clause 20.2.
"IC FEES" means all reasonable fees and expenses payable by the Company in
accordance with the IC Side Agreement.
"INTEREST EXPENSE" means, in relation to any Relevant Period, the aggregate
amount of interest and any other finance charges (whether or not paid, payable
or capitalised) accrued by the Group in that Relevant Period in respect of
Borrowings including:
(a) the interest element of leasing and hire purchase payments;
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(b) commitment fees, commissions, arrangement fees and guarantee fees; and
(c) amounts in the nature of interest payable in respect of any shares other
than equity share capital,
adjusted (but without double counting) by adding back the net amount payable (or
deducting the net amount receivable) by members of the Group in respect of that
Relevant Period under any interest or (so far as they relate to interest)
currency hedging arrangements as determined (except as needed to reflect the
terms of this Clause 21) from the financial statements of the Group and
Compliance Certificates delivered under Clause 20.1 (Financial statements) and
Clause 20.2 (Compliance Certificate).
"NET BORROWINGS" means all Borrowings less the aggregate amount of all Cash and
Deposits.
"RELEVANT DATE" means the date specified in the table in Clause 21.1 (Financial
Condition) as the date as at (or to) which a particular financial ratio is being
tested.
"RELEVANT PERIOD" means:
(a) each financial year of the Company; and
(b) each period of 12 months ending on the last day of each Accounting Quarter
of the Company's financial year except for the purposes of calculating the
Cashflow to Total Debt Service covenant tested on the dates specified below
where the Relevant Period shall be shorter:
(i) as at 31 March 2007 when the Relevant Period shall be a period of 6
months; and
(ii) as at 30 June 2007 when the Relevant Period shall be a period of 9
months.
"TOTAL DEBT SERVICE" means:
(a) Interest Expense for the Relevant Period; and
(b) all scheduled repayments of principal under the terms of any Financial
Indebtedness of any member of the Group (excluding any Financial
Indebtedness between any member of the Group and any other member of the
Group) falling due during that Relevant Period:
(i) including all capital payments falling due during that Relevant Period
in relation to any finance leases and other Financial Indebtedness
falling within paragraph (d) of the definition of Financial
Indebtedness in Clause 1.1 (Definitions); and
(ii) excluding any repayment or prepayment of any overdraft, invoice
discounting facility or revolving credit facility falling due during
that Relevant Period and capable of being simultaneously redrawn under
the terms of the relevant facility.
"UK CORPORATE CHARGE" means such amount as is itemised in the Monthly Management
Accounts.
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22. GENERAL UNDERTAKINGS
The undertakings in this Clause 22 remain in force from the date of this
Agreement for so long as any amount is outstanding under the Finance
Documents or any Commitment is in force.
22.1 AUTHORISATIONS
(a) The Parent and each Obligor shall promptly:
(i) obtain, comply with and do all that is necessary to maintain in full
force and effect; and
(ii) supply certified copies to the Agent of,
any Authorisation required under any law or regulation of its jurisdiction
of incorporation to enable it to perform its obligations under the Finance
Documents and to ensure the legality, validity, enforceability or
admissibility in evidence in its jurisdiction of incorporation of any
Finance Document.
(b) The Parent or the relevant Obligor shall promptly make the registrations
specified at the end of Clause 19.5 (Validity and admissibility in
evidence).
22.2 COMPLIANCE WITH LAWS
The Parent and each Obligor shall comply in all respects with all laws to
which it may be subject, if failure so to comply would materially impair
its ability to perform its obligations under the Finance Documents.
22.3 NEGATIVE PLEDGE
(a) Neither the Parent nor Obligor shall (and the Company shall ensure that no
other member of the Group will) create or permit to subsist any Security
over any of its assets.
(b) Neither the Parent nor Obligor shall (and the Company shall ensure that no
other member of the Group will):
(i) sell, transfer or otherwise dispose of any of its assets on terms
whereby they are or may be leased to or re-acquired by an Obligor or
any other member of the Group;
(ii) sell, transfer or otherwise dispose of any of its receivables on
recourse terms;
(iii) enter into any arrangement under which money or the benefit of a bank
or other account may be applied, set-off or made subject to a
combination of accounts; or
(iv) enter into any other preferential arrangement having a similar
effect,
in circumstances where the arrangement or transaction is entered into
primarily as a method of raising Financial Indebtedness or of financing the
acquisition of an asset.
(c) Paragraphs (a) and (b) above do not apply to any Permitted Security or to
any sale, transfer or other disposal in accordance with the Invoice
Discounting Agreement' which sale, transfer or other disposal is expressly
consented to by the Security Agent.
22.4 DISPOSALS
(a) Neither the Parent nor Obligor shall (and the Company shall ensure that no
other member of the Group will) enter into a single transaction or a series
of transactions (whether related or not and whether voluntary or
involuntary) to sell, lease, transfer or otherwise dispose of any asset.
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(b) Paragraph (a) above does not apply to:
(i) any Permitted Disposal; or
(ii) any sale, lease, transfer or other disposal in the ordinary course of
trading of the disposing entity of any Charged Asset subject only to a
floating charge before the floating charge crystallises or the
security created pursuant to the Security Documents has become
enforceable.
22.5 MERGER
Neither the Parent nor any Obligor shall (and the Company shall ensure that
no other member of the Group will) enter into any amalgamation, demerger,
merger or corporate reconstruction.
22.6 CHANGE OF BUSINESS
The Company shall procure that no substantial change is made to the general
nature of the business of the Company, the Group, the Obligors or the
Parent from that carried on at the date of this Agreement.
22.7 INSURANCE
The Parent and each Obligor shall (and the Company shall ensure that each
other member of the Group will) maintain insurances on and in relation to
its business and assets with reputable underwriters or insurance companies
against those risks, and to the extent, usually insured against by prudent
companies located in the same or a similar location and carrying on a
similar business.
22.8 ENVIRONMENTAL UNDERTAKINGS
The Parent and each Obligor shall (and the Company shall ensure that each
other member of the Group will):
(a) comply with all Environmental Laws to which it may be subject;
(b) obtain all Environmental Licences required or desirable in connection
with its business; and
(c) comply with the terms of all those Environmental Licences,
in each case where failure to do so might have a Material Adverse Effect.
22.9 ENVIRONMENTAL CLAIMS
The Parent and each Obligor shall (and the Company shall ensure that each
other member of the Group will) promptly notify the Agent of any claim,
notice or other communication received by it in respect of any actual or
alleged breach of or liability under Environmental Law which, if
substantiated, might have a Material Adverse Effect.
22.10 ERISA
Except where a failure to do so could reasonably be expected to have a
Material Adverse Effect, the Parent and each Obligor shall:
(a) ensure that neither it nor any ERISA Affiliate engages in a complete
or partial withdrawal, within the meaning of Sections 4203 and 4205 of
ERISA, from any Multiemployer Plan without the prior consent of the
Majority Lenders;
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(b) ensure that any material liability imposed on it or any ERISA
Affiliate pursuant to Title IV of ERISA is paid and discharged when
due;
(c) ensure that neither it nor any ERISA Affiliate adopts an amendment to
an Employee Plan requiring the provision of Security under Section 307
of ERISA or Section 401(a)(29) of the Internal Revenue Code without
the prior consent of the Majority Lenders; and
(d) ensure that no Employee Plan is terminated pursuant to a "distress
termination" under Section 4041(c) of ERISA.
22.11 ACQUISITIONS AND INVESTMENTS
(a) Neither the Parent nor any Obligor shall (and the Company shall ensure that
no other member of the Group will):
(i) invest in or acquire any share in, or any security issued by, any
person, or any interest therein or in the capital of any person, or
make any capital contribution to any person (or agree to do any of the
foregoing); or
(ii) invest in or acquire any business or going concern, or the whole or
substantially the whole of the assets or business of any person, or
any assets that constitute a division or operating unit of the
business of any person (or agree to do any of the foregoing).
(b) Paragraph (a) above does not apply to any acquisition or investment which
is a Permitted Acquisition.
22.12 PARI PASSU
The Parent and each Obligor shall ensure that its obligations under the
Finance Documents rank at all times at least pari passu in right of
priority and payment with the claims of all its other unsecured and
unsubordinated creditors, except for obligations mandatorily preferred by
law applying to companies generally.
22.13 LOANS OR CREDIT
(a) Neither the Parent nor any Obligor will make loans or credit or give
guarantee or indemnities or other assurance against financial loss.
(b) Paragraph (a) above does not apply to a Permitted Loan or Permitted
Guarantee.
22.14 LOANS TO DIRECTORS
Neither the Parent nor any Obligor shall make any loan to any director,
officer or manager without the prior written consent of the Agent.
22.15 DIVIDENDS
(a) Neither the Parent nor any Obligor shall without the prior written consent
of the Agent:
(i) declare, pay or make any dividend or other payment or distribution of
any kind on or in respect of any of its shares or make any
distribution of assets, payment of interest or repayment of loans or
other payment (including management fees); and
(ii) reduce, return, purchase, repay, cancel or redeem any of its shares.
(b) Paragraph (a) above does not apply to US Administration Costs that do not
exceed for the financial year ended 30 September 2007, $US 3.52 million,
for the financial year ended 30
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September 2008, $US 3.70 million and for any financial year thereafter 120
per cent. of the US Administration Costs of the Parent as set out in the
Budget.
22.16 BUY BACK OF SHARES
Neither the Parent nor any Obligor shall enter into any agreement or
transaction or series of transactions which would result, directly or
indirectly, in such Party purchasing its own shares without the prior
written consent of the Agent.
22.17 OFF-BALANCE SHEET FUNDING
Neither the Parent or any Obligor shall (and the Company shall ensure that
no other member of the Group will) incur (or agree to incur) or allow to
remain outstanding any Off-Balance Sheet Funding.
22.18 SECURITY AND GUARANTEES
The Company shall ensure that each Material Subsidiary takes all necessary
steps to become an Additional Guarantor in accordance with Clause 25
(Changes to the Obligors) (including, without limitation, re-registering
public companies as private companies) and will provide the documents and
other evidence listed in paragraph 13 of Part II of Schedule 2 (Conditions
precedent) as Security in favour of the Security Agent to secure all of the
obligations of the Obligors under the Finance Documents.
22.19 CERTAIN ACTIONS
(a) The Parent, as advised by the Interim Consultant, shall complete a detailed
review of the roles of Chairman and Chief Executive Officer such that the
board of directors of the Parent will decide when such roles are to be
separated, together with a timetable to effect such separation.
(b) Following such review:
(i) Xxxxxxx X Xxxxxx shall (if he so decides) be appointed as one of
Chairman or Chief Executive Officer, at his discretion; and
(ii) the Parent shall no later than 1 August 2007 appoint an individual
acceptable to the Original Lenders to the remaining role of Chairman
or Chief Executive Officer (as relevant).
(c) Upon the expiration of the probationary period applicable to the
appointment of Xxxxx Xxxxxxx as Chief Financial Officer on 1 March 2007,
the Parent and the Company shall appoint him to their respective boards of
directors.
22.20 CAPITAL EXPENDITURE
(a) The Company shall ensure that the Capital Expenditure of the Group in any
financial year of the Company commencing on or after the Effective Date
shall not, without the prior written approval of the Majority Lenders
exceed the Capex Limit.
(b) If in any financial year the amount of the Capital Expenditure is less than
the Capex Limit permitted for that financial year (the difference being
referred to below as the "UNUSED AMOUNT") then the Capex Limit for the
immediately following financial year only shall be increased by the Unused
Amount.
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(c) Any Excess Cash Flow following a mandatory prepayment in accordance with
Clause 8.4 (Mandatory prepayment from Excess Cash Flow) may be carried
forward and applied towards Capital Expenditure in the financial year in
which such mandatory prepayment is made.
22.21 US ADMINISTRATION COSTS
The Company shall ensure that the US Administration Costs of the Group in
any financial year of the Company commencing on or after the Effective Date
shall not, without the prior written approval of the Majority Lenders
exceed 120 per cent. of the budgeted amount for such US Administration
Costs as included in the relevant Budget for that financial year.
22.22 PAYMENT OF INTER-COMPANY INTEREST
If the Parent receives a payment of any interest accrued on any
inter-company debt owed to it by any member of the Group, the Parent shall
as soon as reasonably practicable, but in any event no later than 7 days
after the date of receipt by the Parent of such interest, lend the sums so
received back to any member of the Group.
22.23 INTERIM CONSULTANT
(a) The Parent and the Group agree that the Interim Consultant shall be engaged
in accordance with the IC Side Agreement until such time as the Parent
considers, in consultation and with the consent of the Lenders, that he is
no longer required.
(b) The Parent and the Group agree that the Interim Consultant shall have:
(i) full and free access to all of the books and records of the Parent
and the Group;
(ii) reasonable access to:
(A) all the directors, officers and senior management of the
Parent and the Group;
(B) any shareholder representatives acting as observers at any
meetings of the Parent/the Group's respective boards of
directors and/or management committee meetings; and
(C) the Parent and the Group's respective advisers; and
(iii) reasonable access to the operating sites of the Parent and the Group.
(c) For the avoidance of doubt, the Interim Consultant shall not be a member of
the board of directors of the Parent or the Group nor have any executive
powers or functions whatsoever.
(d) The Parent and the Group agree and acknowledge that the Interim Consultant
shall be permitted to report from time to time to the Lenders as to the
performance of his role.
(e) Pursuant to the terms of the IC Side Agreement it is agreed that where the
Interim Consultant considers he is unable to perform his role in accordance
with its terms he shall give written notice to the Parent (an "IC NOTICE")
and as soon as reasonably practicable following receipt of an IC Notice,
the Parent shall give written notice to the Lenders.
(f) No later than 2 weeks from the date of receipt of an IC Notice by the
Parent, the Parent and the Interim Consultant shall meet to negotiate in
good faith the terms under which the Interim Consultant shall continue in
his role.
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(g) No later than 4 weeks from the date of receipt of an IC Notice by the
Parent, the Group shall either:
(i) agree amendments to the IC Side Agreement on terms acceptable to the
Lenders; or
(ii) agree new terms of engagement with the then present Interim
Consultant, such terms of engagement to be acceptable to the Lenders;
and
(iii) take steps to appoint a new Interim Consultant acceptable to the
Lenders.
(h) The Parent or the Group may, from time to time, request the Interim
Consultant (at his sole discretion) to undertake a consulting role in
respect of discrete projects on behalf of the Parent and/or the Group. The
remit of any such consulting role shall be agreed between the Interim
Consultant and the Parent and/or the Group (as relevant), in consultation
with the Lenders.
(i) The Interim Consultant shall be at the sole cost and expense of the Group.
22.24 US BANK ACCOUNTS
(a) Within 20 days of the Effective Date, the Parent shall provide the Agent
with executed copies of the Deposit Account Control Agreements (in form and
substance satisfactory to the Agent) in accordance with the Pledge and
Security Agreement in respect of the following accounts of the Parent
and/or the Group:
(i) the account with Bank of America having account number 002369664279
and ABA Reference 000000000; and
(ii) the account with Bank of America Securities LLC having account number
224-52862-1-2-MMC.
(b) Neither the Parent nor any Obligor shall open any bank, deposit or money
market account in the United States unless such account is subject to a
Deposit Account Control Agreement in accordance with the Pledge and
Security Agreement.
22.25 INVOICE DISCOUNTING AGREEMENTS
The ID Obligors shall enter into the Invoice Discounting Agreements
(including complying with any conditions precedent requested by the ID
Bank) by no later than 12 January 2007.
22.26 STRATEGIC REVIEW
If the Parent and/or the Company decide to undertake a strategic review of
the Parent Group, then the Parent and/or the Company shall define the scope
of such strategic review as soon as reasonably practicable after such
decision and the scope shall be in a form satisfactory to the Original
Lenders.
23. EVENTS OF DEFAULT
Each of the events or circumstances set out in Clause 23 is an Event of
Default.
23.1 NON-PAYMENT
The Parent or an Obligor does not pay on the due date any amount payable
pursuant to a Finance Document at the place at and in the currency in which
it is expressed to be payable unless:
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(a) its failure to pay is caused by administrative or technical error; and
(b) payment is made within 3 Business Days of its due date.
23.2 FINANCIAL COVENANTS
Any requirement of Clause 21 (Financial covenants) is not satisfied.
23.3 OTHER OBLIGATIONS
(a) The Parent or an Obligor does not comply with any provision of the Finance
Documents (other than those referred to in Clause 23.1 (Non-payment) and
Clause 23.2 (Financial covenants)).
(b) No Event of Default under paragraph (a) above will occur if the failure to
comply is capable of remedy and is remedied within 10 Business Days of the
Agent giving notice to the Company or the Company becoming aware of the
failure to comply.
23.4 MISREPRESENTATION
Any representation or statement made or deemed to be made by the Parent or
an Obligor in the Finance Documents or any other document delivered by or
on behalf of the Parent or any Obligor under or in connection with any
Finance Document is or proves to have been incorrect or misleading in any
material respect when made or deemed to be made and if the circumstances
causing such misrepresentation are reasonably capable of remedy, the
Parent or such Obligor shall have failed to remedy such circumstances
within 10 Business Days of receipt by it of written notice from the Agent
requiring such circumstances to be remedied.
23.5 CROSS DEFAULT
(a) Any Financial Indebtedness of the Parent or any member of the Group is not
paid when due nor within any originally applicable grace period.
(b) Any Financial Indebtedness of the Parent or any member of the Group is
declared to be or otherwise becomes due and payable prior to its specified
maturity as a result of an event of default (however described).
(c) Any commitment for any Financial Indebtedness of the Parent or any member
of the Group is cancelled or suspended by a creditor of the Parent or any
member of the Group as a result of an event of default (however
described).
(d) Any creditor of the Parent or any member of the Group becomes entitled to
declare any Financial Indebtedness of the Parent or any member of the
Group due and payable prior to its specified maturity as a result of an
event of default (however described).
(e) No Event of Default will occur under this Clause 23.5 if the aggregate
amount of Financial Indebtedness or commitment for Financial Indebtedness
falling within paragraphs (a) to (d) above is less than (pound)1,000,000
(or its equivalent in any other currency or currencies).
23.6 INSOLVENCY
(a) The Parent or a member of the Group is unable or admits inability to pay
its debts as they fall due, suspends making payments on any of its debts
or, by reason of actual or anticipated financial difficulties, commences
negotiations with one or more of its creditors with a view to rescheduling
any of its indebtedness.
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(b) The value of the assets of the Parent or any member of the Group is less
than its liabilities (taking into account contingent and prospective
liabilities).
(c) A moratorium is declared in respect of any indebtedness of the Parent or
any member of the Group.
23.7 INSOLVENCY PROCEEDINGS
Any corporate action, legal proceedings or other procedure or step is
taken in relation to:
(a) the suspension of payments, a moratorium of any indebtedness,
winding-up, dissolution, administration or reorganisation (by way of
voluntary arrangement, scheme of arrangement or otherwise) of the
Parent, an Obligor or a Material Subsidiary;
(b) a composition, compromise, assignment or arrangement with any
creditor of the Parent, an Obligor or a Material Subsidiary;
(c) the appointment of a liquidator, receiver, administrative receiver,
administrator, compulsory manager or other similar officer in
respect of the Parent, an Obligor or a Material Subsidiary or any of
its assets; or
(d) enforcement of any Security over any assets of the Parent, an
Obligor or a Material Subsidiary,
or any analogous procedure or step is taken in any jurisdiction.
23.8 CREDITORS' PROCESS
Any expropriation, attachment, sequestration, distress or execution
affects any asset or assets of a member of the Parent Group and is not
discharged within 15 Business Days.
23.9 OWNERSHIP OF THE OBLIGORS
An Obligor (other than the Company) is not or ceases to be a wholly-owned
Subsidiary of the Company.
23.10 UNLAWFULNESS
It is or becomes unlawful for the Parent or an Obligor to perform any of
its obligations under the Finance Documents.
23.11 REPUDIATION
The Parent or an Obligor repudiates a Finance Document or evidences an
intention to repudiate a Finance Document.
23.12 SECURITY AND GUARANTEES
Any:
(a) guarantee given under this Agreement is not in full force and
effect; or
(b) Security Document is not in full force and effect or does not create
in favour of the Security Agent for the benefit of the Secured
Parties the Security which it is expressed to create with the
ranking and priority it is expressed to have.
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23.13 MATERIAL ADVERSE CHANGE
The Majority Lenders determine that a Material Adverse Effect exists, has
occurred or might occur.
23.14 ERISA
(a)
(i) Any ERISA Event occurs or is reasonably expected to occur;
(ii) the Parent, any Obligor or any ERISA Affiliate incurs or is
likely to incur a liability to or on account of a
Multiemployer Plan as a result of a violation of Section 515
of ERISA or under Section 4201, 4204 or 4212(c) of ERISA;
(iii) the fair market value of the assets of any Employee Plan
subject to Title IV of ERISA is not at least equal to the
present value of the "benefit liabilities" (within the meaning
of Section 4001(a)(16) of ERISA) under that Employee Plan
using the actuarial assumptions and methods used by the
actuary to that Employee Plan in its most recent valuation of
that Employee Plan; or
(iv) the Parent, any Obligor or any ERISA Affiliate incurs or is
likely to incur a liability to or on account of an Employee
Plan under Section 409, 502(i) or 502(I) of ERISA or Section
401(a)(29), 4971 or 4975 of the Internal Revenue Code; and
(b) any event or events described in paragraph (a) result(s) in the
imposition of or granting of Security, or the incurring of a
liability or a material risk of incurring a liability; and
(c) that Security or liability, individually and/or in the aggregate,
has or could reasonably be expected to have a Material Adverse
Effect.
23.15 CESSATION OF BUSINESS
The Parent or any Obligor suspends or ceases (or threatens to suspend or
cease) to carry on all or a material part of its business, except as part
of a Permitted Disposal.
23.16 ACCELERATION
On and at any time after the occurrence of an Event of Default which is
continuing the Agent may, and shall if so directed by the Majority
Lenders, by notice to the Company:
(a) cancel the Total Commitments whereupon they shall immediately be
cancelled;
(b) declare that all or part of the Loans, together with accrued
interest, and all other amounts accrued or outstanding under the
Finance Documents be immediately due and payable, whereupon they
shall become immediately due and payable; and/or
(c) declare that all or part of the Loans be payable on demand,
whereupon they shall immediately become payable on demand by the
Agent on the instructions of the Majority Lenders.
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SECTION 9
CHANGES TO PARTIES
24. CHANGES TO THE LENDERS
24.1 ASSIGNMENTS AND TRANSFERS BY THE LENDERS
Subject to this Clause 24, a Lender (the "EXISTING LENDER") may after the
first Utilisation Date:
(a) assign any of its rights; or
(b) transfer by novation any of its rights and obligations,
to another bank or financial institution or to a trust, fund or other
entity which is regularly engaged in or established for the purpose of
making, purchasing or investing in loans, securities or other financial
assets (the "NEW LENDER").
24.2 CONDITIONS OF ASSIGNMENT OR TRANSFER
(a) The consent of the Company is required for an assignment or transfer by an
Existing Lender, unless the assignment or transfer is to another Lender or
an Affiliate of a Lender or an Event of Default is continuing.
(b) The consent of the Company to an assignment or transfer must not be
unreasonably withheld or delayed. The Company will be deemed to have given
its consent 10 Business Days after the Existing Lender has requested it
unless consent is expressly refused by the Company within that time.
(c) Any assignment or transfer must be:
(i) the Existing Lender's entire Commitment; or
(ii) a minimum of (pound)5,000,000 and an integral multiple of
(pound)5,000,000 (or their comparable amounts in any Optional
Currency).
(d) The consent of the Company to an assignment or transfer must not be
withheld solely because the assignment or transfer may result in an
increase to the Mandatory Cost.
(e) An assignment will only be effective on:
(i) receipt by the Agent of written confirmation from the New Lender (in
form and substance satisfactory to the Agent) that the New Lender
will assume the same obligations to the other Secured Parties as it
would have been under if it was an Original Lender; and
(ii) performance by the Agent of all "know your customer" or other checks
relating to any person that it is required to carry out in relation
to such assignment to a New Lender, the completion of which the
Agent shall promptly notify to the Existing Lender and the New
Lender.
(f) A transfer will only be effective if the procedure set out in Clause 24.5
(Procedure for transfer) is complied with.
(g) Any assignment or transfer by an Existing Lender to a New Lender shall
only be effective if it transfers or assigns the Existing Lender's share
of each Facility (except for Facility B2) pro rata.
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(h) If:
(i) a Lender assigns or transfers any of its rights or obligations under
the Finance Documents or changes its Facility Office; and
(ii) as a result of circumstances existing at the date the assignment,
transfer or change occurs, an the Parent or an Obligor would be
obliged to make a payment to the New Lender or Lender acting through
its new Facility Office under Clause 13 (Tax gross-up and
indemnities) or Clause 14 (Increased Costs),
then the New Lender or Lender acting through its new Facility Office is
only entitled to receive payment under those Clauses to the same extent as
the Existing Lender or Lender acting through its previous Facility Office
would have been if the assignment, transfer or change had not occurred.
(i) The consent of the ID Bank is required for an assignment or transfer by
Lloyds TSB Bank PLC of its Loss Share Obligations unless the assignment or
transfer is to an Affiliate of Lloyds TSB Bank PLC.
24.3 ASSIGNMENT OR TRANSFER FEE
The New Lender shall, on the date upon which an assignment or transfer
takes effect, pay to the Agent (for its own account) a fee of
(pound)1,000.
24.4 LIMITATION OF RESPONSIBILITY OF EXISTING LENDERS
(a) Unless expressly agreed to the contrary, an Existing Lender makes no
representation or warranty and assumes no responsibility to a New Lender
for:
(i) the legality, validity, effectiveness, adequacy or enforceability of
the Finance Documents or any other documents;
(ii) the financial condition of the Parent or any Obligor;
(iii) the performance and observance by the Parent or any Obligor of its
obligations under the Finance Documents or any other documents; or
(iv) the accuracy of any statements (whether written or oral) made in or
in connection with any Finance Document or any other document,
and any representations or warranties implied by law are excluded.
(b) Each New Lender confirms to the Existing Lender and the other Secured
Parties that it:
(i) has made (and shall continue to make) its own independent
investigation and assessment of the financial condition and affairs
of the Parent and each Obligor and its related entities in
connection with its participation in this Agreement and has not
relied exclusively on any information provided to it by the Existing
Lender in connection with any Finance Document; and
(ii) will continue to make its own independent appraisal of the
creditworthiness of the Parent and each Obligor and its related
entities whilst any amount is or may be outstanding under the
Finance Documents or any Commitment is in force.
(c) Nothing in any Finance Document obliges an Existing Lender to:
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(i) accept a re-transfer from a New Lender of any of the rights and
obligations assigned or transferred under this Clause 24; or
(ii) support any losses directly or indirectly incurred by the New Lender
by reason of the non-performance by the Parent or any Obligor of its
obligations under the Finance Documents or otherwise.
24.5 PROCEDURE FOR TRANSFER
(a) Subject to the conditions set out in Clause 24.2 (Conditions of assignment
or transfer) a transfer is effected in accordance with paragraph (c) below
when the Agent executes an otherwise duly completed Transfer Certificate
delivered to it by the Existing Lender and the New Lender. The Agent
shall, subject to paragraph (b) below, as soon as reasonably practicable
after receipt by it of a duly completed Transfer Certificate appearing on
its face to comply with the terms of this Agreement and delivered in
accordance with the terms of this Agreement, execute that Transfer
Certificate.
(b) The Agent shall only be obliged to execute a Transfer Certificate
delivered to it by the Existing Lender and the New Lender once it is
satisfied it has complied with all necessary "know your customer" or other
similar checks under all applicable laws and regulations in relation to
the transfer to such New Lender.
(c) On the Transfer Date:
(i) to the extent that in the Transfer Certificate the Existing Lender
seeks to transfer by novation its rights and obligations under the
Finance Documents each of the Parent, the Obligors and the Existing
Lender shall be released from further obligations towards one
another under the Finance Documents and their respective rights
against one another under the Finance Documents shall be cancelled
(being the "DISCHARGED RIGHTS AND Obligations");
(ii) the Parent and each of the Obligors and the New Lender shall assume
obligations towards one another and/or acquire rights against one
another which differ from the Discharged Rights and Obligations only
insofar as the Parent or that Obligor and the New Lender have
assumed and/or acquired the same in place of the Parent or that
Obligor and the Existing Lender;
(iii) the Agent, the Arranger, the Security Agent, the New Lender and
other Lenders shall acquire the same rights and assume the same
obligations between themselves as they would have acquired and
assumed had the New Lender been an Original Lender with the rights
and/or obligations acquired or assumed by it as a result of the
transfer and to that extent the Agent, the Arranger, the Security
Agent and the Existing Lender shall each be released from further
obligations to each other under the Finance Documents; and
(iv) the New Lender shall become a Party as a "Lender".
24.6 COPY OF TRANSFER CERTIFICATE TO COMPANY
The Agent shall, as soon as reasonably practicable after it has executed a
Transfer Certificate, send to the Company a copy of that Transfer
Certificate.
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24.7 DISCLOSURE OF INFORMATION
Any Lender may disclose to any of its Affiliates and any other person:
(a) to (or through) whom that Lender assigns or transfers (or may
potentially assign or transfer) all or any of its rights and
obligations under this Agreement;
(b) with (or through) whom that Lender enters into (or may potentially
enter into) any sub-participation in relation to, or any other
transaction under which payments are to be made by reference to,
this Agreement, the Parent or any Obligor; or
(c) to whom, and to the extent that, information is required to be
disclosed by any applicable law or regulation,
any information about the Parent, any Obligor, the Group and the Finance
Documents as that Lender shall consider appropriate if, in relation to
paragraphs (a) and (b) above, the person to whom the information is to be
given has entered into a Confidentiality Undertaking. This Clause
supersedes any previous agreement relating to the confidentiality of this
information.
25. CHANGES TO THE OBLIGORS
25.1 ASSIGNMENTS AND TRANSFER BY PARENT AND OBLIGORS
Neither the Parent nor an Obligor may assign any of its rights or transfer
any of its rights or obligations under the Finance Documents.
25.2 ADDITIONAL BORROWERS
(a) Subject to compliance with the provisions of paragraphs (c) and (d) of
Clause 20.7 ("Know your customer" checks), the Company may request that
any of its wholly owned Subsidiaries becomes an Additional Borrower. That
Subsidiary shall become an Additional Borrower if:
(i) for a Subsidiary that is not incorporated in the United Kingdom, the
Majority Lenders approve the addition of that Subsidiary (such
approval not to be unreasonably withheld);
(ii) the Company delivers to the Agent a duly completed and executed
Accession Letter;
(iii) the Company confirms that no Default is continuing or would occur as
a result of that Subsidiary becoming an Additional Borrower;
(iv) that Subsidiary becomes an Additional Guarantor in accordance with
Clause 28.3 (Additional Guarantors); and
(v) the Agent has received all of the documents and other evidence
listed in Part II of Schedule 2 (Conditions precedent) in relation
to that Additional Borrower, each in form and substance satisfactory
to the Agent (acting reasonably).
(b) The Agent shall notify the Company and the Lenders promptly upon being
satisfied that it has received (in form and substance satisfactory to it)
all the documents and other evidence listed in Part II of Schedule 2
(Conditions precedent).
25.3 RESIGNATION OF A BORROWER
If at any time a Borrower (other than the Company) 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
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such Borrower or its assets, the Company 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 Company that:
(a) it is satisfied that such Borrower is under no actual or contingent
obligation under or pursuant to any Finance Document;
(b) no Default is continuing or would result from the acceptance of the
Resignation Notice (and the Company has confirmed this is the case);
and
(c) it has received the consent of the Majority Lenders to the
resignation of such Borrower (such consent not to be unreasonably
withheld),
and such Borrower shall immediately cease to be a Borrower and shall have
no further rights, benefits or obligations hereunder.
25.4 ADDITIONAL GUARANTORS
(a) Subject to compliance with the provisions of paragraphs (c) and (d) of
Clause 20.7 ("Know your customer" checks), the Company may request that
any of its wholly owned Subsidiaries become an Additional Guarantor. That
Subsidiary shall become an Additional Guarantor if:
(i) for a Subsidiary that is not incorporated in the United Kingdom, the
Majority Lenders approve the addition of that Subsidiary (such
approval not to be unreasonably withheld);
(ii) the Company delivers to the Agent a duly completed and executed
Accession Letter; and
(iii) the Agent has received all of the documents and other evidence
listed in Part II of Schedule 2 (Conditions precedent) in relation
to that Additional Guarantor, each in form and substance
satisfactory to the Agent (acting reasonably).
(b) The Agent shall notify the Company and the Lenders promptly upon being
satisfied that it has received (in form and substance satisfactory to it)
all the documents and other evidence listed in Part II of Schedule 2
(Conditions precedent).
25.5 RESIGNATION OF A GUARANTOR
(a) The Company may request that a Guarantor (other than the Company) ceases
to be a Guarantor or that the Parent ceases to be bound as a guarantor by
delivering to the Agent a Resignation Notice.
(b) The Agent shall accept a Resignation Notice and notify the Company and the
Lenders of its acceptance if:
(i) no Default is continuing or would result from the acceptance of the
Resignation Notice (and the Company has confirmed this is the case);
and
(ii) the Majority Lenders have consented to the Company's request (such
consent not to be unreasonably withheld).
25.6 REPETITION OF REPRESENTATIONS
Delivery of an Accession Letter constitutes confirmation by the relevant
Subsidiary that the Repeating Representations and each of the
representations set out in Clauses 19.5 (Validity and admissibility in
evidence), 19.7 (Deduction of Tax) and 19.8 (No filing or stamp taxes) are
true
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and correct in relation to it as at the date of delivery as if made by
reference to the facts and circumstances then existing.
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SECTION 10
THE SECURED PARTIES
26. ROLE OF THE AGENT, THE SECURITY AGENT AND THE ARRANGER
26.1 APPOINTMENT OF THE AGENT AND THE SECURITY AGENT
(a) Each other Finance Party appoints the Agent to act as its agent under and
in connection with the Finance Documents.
(b) Each other Secured Party appoints the Security Agent to act as security
trustee under and in connection with the Finance Documents.
(c) Each other:
(i) Finance Party authorises the Agent; and
(ii) Secured Party authorises the Security Agent,
to exercise the rights, powers, authorities and discretions specifically
given to it under or in connection with the Finance Documents together
with any other incidental rights, powers, authorities and discretions.
26.2 DUTIES OF THE AGENT AND THE SECURITY AGENT
(a) The Agent shall promptly forward to a Party the original or a copy of any
document which is delivered to the Agent for that Party by any other
Party.
(b) Except where a Finance Document specifically provides otherwise, the Agent
is not obliged to review or check the adequacy, accuracy or completeness
of any document it forwards to another Party.
(c) If the Agent receives notice from a Party referring to this Agreement,
describing a Default and stating that the circumstance described is a
Default, it shall promptly notify the Secured Parties.
(d) If the Agent is aware of the non-payment of any principal, interest,
commitment fee or other fee payable to a Finance Party (other than the
Agent or the Arranger) under this Agreement it shall promptly notify the
other Secured Parties.
(e) The Agent shall promptly send to the Security Agent such certification as
the Security Agent may require pursuant to paragraph 7 (Basis of
distribution) of Schedule 7 (Security Agency provisions).
(f) The duties of the Agent and the Security Agent under the Finance Documents
are solely mechanical and administrative in nature.
26.3 ROLE OF THE ARRANGER
Except as specifically provided in the Finance Documents, the Arranger has
no obligations of any kind to any other Party under or in connection with
any Finance Document.
26.4 ROLE OF THE SECURITY AGENT
The Security Agent shall not be an agent of any Secured Party, the Parent
or any Obligor under or in connection with any Finance Document.
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26.5 NO FIDUCIARY DUTIES
(a) Nothing in this Agreement constitutes the Agent, the Security Agent
(expressly as provided in any Finance Document) or the Arranger as a
trustee or fiduciary of any other person.
(b) Neither the Agent, the Security Agent (except as expressly provided in any
Finance Document) nor the Arranger shall be bound to account to any Lender
for any sum or the profit element of any sum received by it for its own
account.
26.6 BUSINESS WITH THE GROUP
The Agent, the Security 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.
26.7 RIGHTS AND DISCRETIONS OF THE AGENT AND THE SECURITY AGENT
(a) The Agent and the Security Agent may rely on:
(i) any representation, notice or document believed by it to be genuine,
correct and appropriately authorised; and
(ii) any statement made by a director, authorised signatory or employee of
any person regarding any matters which may reasonably be assumed to
be within his knowledge or within his power to verify.
(b) The Agent and the Security Agent may assume (unless it has received notice
to the contrary in its capacity as agent for the Lenders or, as the case
may be, as security trustee for the Secured Parties) that:
(i) no Default has occurred (unless it has actual knowledge of a Default
arising under Clause 23.1 (Non-payment));
(ii) any right, power, authority or discretion vested in any Party or the
Majority Lenders has not been exercised; and
(iii) any notice or request made by the Company (other than a Utilisation
Request or Selection Notice) is made on behalf of and with the
consent and knowledge of the Parent and all the Obligors.
(c) Each of the Agent and the Security Agent may engage, pay for and rely on
the advice or services of any lawyers, accountants, surveyors or other
experts.
(d) Each of the Agent and the Security Agent may act in relation to the
Finance Documents through its personnel and agents.
(e) The Agent may disclose to any other Party any information it reasonably
believes it has received as agent under this Agreement.
(f) Notwithstanding any other provision of any Finance Document to the
contrary, neither the Agent, the Security Agent nor the Arranger is
obliged to do or omit to do anything if it would or might in its
reasonable opinion constitute a breach of any law or regulation or a
breach of a fiduciary duty or duty of confidentiality.
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26.8 MAJORITY LENDERS' INSTRUCTIONS
(a) Unless a contrary indication appears in a Finance Document, the Agent and
the Security Agent shall (i) exercise any right, power, authority or
discretion vested in it as Agent or Security Agent (as the case may be) in
accordance with any instructions given to it by the Majority Lenders (or,
if so instructed by the Majority Lenders, refrain from exercising any
right, power, authority or discretion vested in it as Agent or Security
Agent, as the case may be) and (ii) not be liable for any act (or
omission) if it acts (or refrains from taking any action) in accordance
with an instruction of the Majority Lenders.
(b) Unless a contrary indication appears in a Finance Document, any
instructions given by the Majority Lenders will be binding on all the
Secured Parties.
(c) Each of the Agent and the Security Agent may refrain from acting in
accordance with the instructions of the Majority Lenders (or, if
appropriate, the Lenders) until it has received such security as it may
require for any cost, loss or liability (together with any associated VAT)
which it may incur in complying with the instructions.
(d) In the absence of instructions from the Majority Lenders (or, if
appropriate, the Lenders), each of the Agent and the Security Agent may
act (or refrain from taking action) as it considers to be in the best
interest of the Lenders.
(e) Neither the Agent nor the Security Agent is authorised to act on behalf of
a Lender (without first obtaining that Lender's consent) in any legal or
arbitration proceedings relating to any Finance Document.
26.9 RESPONSIBILITY FOR DOCUMENTATION
Neither the Agent, the Security Agent nor the Arranger:
(a) is responsible for the adequacy, accuracy and/or completeness of any
information (whether oral or written) supplied by the Agent, the
Security Agent, the Arranger, the Parent, an Obligor or any other
person given in or in connection with any Finance Document or the
Information Package; or
(b) is responsible for the legality, validity, effectiveness, adequacy
or enforceability of any Finance Document or any other agreement,
arrangement or document entered into, made or executed in
anticipation of or in connection with any Finance Document.
26.10 EXCLUSION OF LIABILITY
(a) Without limiting paragraph (b) below, neither the Agent nor the Security
Agent will be liable for any action taken by it under or in connection
with any Finance Document, unless directly caused by its gross negligence
or wilful misconduct.
(b) No Party (other than the Agent or the Security Agent) may take any
proceedings against any officer, employee or agent of the Agent or the
Security Agent in respect of any claim it might have against the Agent or
the Security Agent or in respect of any act or omission of any kind by
that officer, employee or agent in relation to any Finance Document and
any officer, employee or agent of the Agent or the Security Agent may rely
on this Clause.
(c) Neither the Agent nor the Security Agent will be liable for any delay (or
any related consequences) in crediting an account with an amount required
under the Finance Documents
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to be paid by it if it has taken all necessary steps as soon as reasonably
practicable to comply with the regulations or operating procedures of any
recognised clearing or settlement system used by it for that purpose.
(d) Nothing in this Agreement shall oblige the Agent or the Arranger to carry
out any "know your customer" or other checks in relation to any person on
behalf of any Lender and each Lender confirms to the Agent and the
Arranger that it is solely responsible for any such checks it is required
to carry out and that it may not rely on any statement in relation to such
checks made by the Agent or the Arranger.
26.11 LENDERS' INDEMNITY TO THE AGENT AND THE SECURITY AGENT
Each Lender shall (in proportion to its share of the Total Commitments or,
if the Total Commitments are then zero, to its share of the Total
Commitments immediately prior to their reduction to zero) indemnify the
Agent and the Security Agent, within three Business Days of demand,
against any cost, loss or liability incurred by the Agent or the Security
Agent (otherwise than by reason of its gross negligence or wilful
misconduct) in acting as Agent or, as the case may be, Security Agent
under the Finance Documents (unless it has been reimbursed by the Parent
or an Obligor pursuant to a Finance Document).
26.12 RESIGNATION OF THE AGENT OR THE SECURITY AGENT
(a) The Agent may resign and appoint one of its Affiliates acting through an
office in the United Kingdom as successor by giving notice to the other
Finance Parties and the Company.
(b) The Security Agent may resign and appoint one of its Affiliates acting
through an office in the United Kingdom as successor by giving notice to
the other Secured Parties and the Company.
(c) Alternatively:
(i) the Agent may resign by giving notice to the other Finance Parties
and the Company, in which case the Majority Lenders (after
consultation with the Company) may appoint a successor Agent; or
(ii) the Security Agent may resign by giving notice to the other Secured
Parties and the Company, in which case the Majority Lenders (after
consultation with the Company) may appoint a successor Security
Agent.
(d) If the Majority Lenders have not appointed a successor Agent or, as the
case may be, Security Agent in accordance with paragraph (c) above within
30 days after notice of resignation was given, the Agent or, as the case
may be, Security Agent (after consultation with the Company) may appoint a
successor Agent or Security Agent (acting through an office in the United
Kingdom).
(e) The retiring Agent or Security Agent shall, at its own cost, make
available to its successor such documents and records and provide such
assistance as its successor may reasonably request for the purposes of
performing its functions as Agent or Security Agent under the Finance
Documents.
(f) The resignation notice of the Agent or Security Agent shall only take
effect upon the appointment of a successor.
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(g) Upon the appointment of a successor, the retiring Agent or Security Agent
shall be discharged from any further obligation in respect of the Finance
Documents but shall remain entitled to the benefit of this Clause 26. Its
successor and each of the other Parties shall have the same rights and
obligations amongst themselves as they would have had if such successor
had been an original Party.
(h) After consultation with the Company, the Majority Lenders may, by notice
to the Agent or, as the case may be, the Security Agent, require it to
resign in accordance with paragraph (b) above. In this event, the Agent
or, as the case may be, the Security Agent shall resign in accordance with
paragraph (b) above.
26.13 CONFIDENTIALITY
(a) The Agent (in acting as agent for the Finance Parties) and the Security
Agent (in acting as security trustee for the Secured Parties) shall be
regarded as acting through its respective agency or security trustee
division which in each case shall be treated as a separate entity from any
other of its divisions or departments.
(b) If information is received by another division or department of the Agent
or, as the case may be, the Security Agent, it may be treated as
confidential to that division or department and the Agent or, as the case
may be, the Security Agent shall not be deemed to have notice of it.
26.14 RELATIONSHIP WITH THE LENDERS
(a) The Agent may treat each Lender as a Lender, entitled to payments under
this Agreement and acting through its Facility Office unless it has
received not less than five Business Days prior notice from that Lender to
the contrary in accordance with the terms of this Agreement.
(b) Each Lender shall supply the Agent with any information required by the
Agent in order to calculate the Mandatory Cost in accordance with Schedule
4 (Mandatory Cost formulae).
26.15 CREDIT APPRAISAL BY THE LENDERS
Without affecting the responsibility of the Parent or any Obligor for
information supplied by it or on its behalf in connection with any Finance
Document, each Lender confirms to the Agent, the Security Agent and the
Arranger that it has been, and will continue to be, solely responsible for
making its own independent appraisal and investigation of all risks
arising under or in connection with any Finance Document including but not
limited to:
(a) the financial condition, status and nature of the Parent and each
member of the Group;
(b) the legality, validity, effectiveness, adequacy or enforceability of
any Finance Document and any other agreement, Security, arrangement
or document entered into, made or executed in anticipation of, under
or in connection with any Finance Document;
(c) whether that Lender has recourse, and the nature and extent of that
recourse, against any Party or any of its respective assets under or
in connection with any Finance Document, the transactions
contemplated by the Finance Documents or any other agreement,
Security, arrangement or document entered into, made or executed in
anticipation of, under or in connection with any Finance Document;
and
(d) the adequacy, accuracy and/or completeness of the Information Package
and any other information provided by the Agent, the Security Agent,
any Party or by any other person
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under or in connection with any Finance Document, the transactions
contemplated by the Finance Documents or any other agreement,
Security, arrangement or document entered into, made or executed in
anticipation of, under or in connection with any Finance Document.
26.16 REFERENCE BANKS
If a Reference Bank (or, if a Reference Bank is not a Lender, the
Lender of which it is an Affiliate) ceases to be a Lender, the Agent
shall (in consultation with the Company) appoint another Lender or an
Affiliate of a Lender to replace that Reference Bank.
26.17 MANAGEMENT TIME OF THE AGENT AND THE SECURITY AGENT
Any amount payable to the Agent or the Security Agent under Clause 15.3
(Indemnity to the Agent and the Security Agent), Clause 17 (Costs and
expenses) and Clause 26.11 (Lenders' indemnity to the Agent and the
Security Agent) shall include the cost of utilising its management time
or other resources and will be calculated on the basis of such
reasonable daily or hourly rates as it may notify to the Company and
the Lenders, and is in addition to any fee paid or payable to it under
Clause 12 (Fees).
26.18 SECURITY AGENCY PROVISIONS
The provisions of Schedule 7 (Security Agency provisions) shall bind
each Party.
26.19 DEDUCTION FROM AMOUNTS PAYABLE BY THE AGENT OR THE SECURITY AGENT
If any Party owes an amount to the Agent or the Security Agent under the
Finance Documents the Agent or the Security Agent (as the case may be)
may, after giving notice to that Party, deduct an amount not exceeding
that amount from any payment to that Party which the Agent or the Security
Agent (as the case may be) would otherwise be obliged to make under the
Finance Documents and apply the amount deducted in or towards satisfaction
of the amount owed. For the purposes of the Finance Documents that Party
shall be regarded as having received any amount so deducted.
27. CONDUCT OF BUSINESS BY THE SECURED PARTIES
No provision of this Agreement will:
(a) interfere with the right of any Secured Party to arrange its affairs
(tax or otherwise) in whatever manner it thinks fit;
(b) oblige any Secured Party to investigate or claim any credit, relief,
remission or repayment available to it or the extent, order and
manner of any claim; or
(c) oblige any Secured Party to disclose any information relating to its
affairs (tax or otherwise) or any computations in respect of Tax.
28. SHARING AMONG THE SECURED PARTIES
28.1 PAYMENTS TO SECURED PARTIES
If a Secured Party (a "RECOVERING SECURED PARTY") receives or recovers any
amount from the Parent or an Obligor other than in accordance with Clause
29 (Payment mechanics) and applies that amount to a payment due under the
Finance Documents then:
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(a) the Recovering Secured Party shall, within three Business Days,
notify details of the receipt or recovery to the Agent;
(b) the Agent shall determine whether the receipt or recovery is in
excess of the amount the Recovering Secured Party would have been
paid had the receipt or recovery been received or made by the Agent
and distributed in accordance with Clause 29 (Payment mechanics),
without taking account of any Tax which would be imposed on the Agent
in relation to the receipt, recovery or distribution; and
(c) the Recovering Secured Party shall, within three Business Days of
demand by the Agent, pay to the Agent an amount (the "Sharing
Payment") equal to such receipt or recovery less any amount which the
Agent determines may be retained by the Recovering Secured Party as
its share of any payment to be made, in accordance with Clause 29.5
(Partial payments).
28.2 REDISTRIBUTION OF PAYMENTS
The Agent shall treat the Sharing Payment as if it had been paid by the
Parent or the relevant Obligor and distribute it between the Secured
Parties (other than the Recovering Finance Party) in accordance with
Clause 29.5 (Partial payments).
28.3 RECOVERING SECURED PARTY'S RIGHTS
(a) On a distribution by the Agent under Clause 28.2 (Redistribution of
payments), the Recovering Secured Party will be subrogated to the rights
of the Finance Parties which have shared in the redistribution.
(b) If and to the extent that the Recovering Secured Party is not able to rely
on its rights under paragraph (a) above, the Parent or the relevant
Obligor shall be liable to the Recovering Secured Party for a debt equal
to the Sharing Payment which is immediately due and payable.
28.4 REVERSAL OF REDISTRIBUTION
If any part of the Sharing Payment received or recovered by a Recovering
Secured Party becomes repayable and is repaid by that Recovering Secured
Party, then:
(a) each Secured Party which has received a share of the relevant Sharing
Payment pursuant to Clause 28.2 (Redistribution of payments) shall,
upon request of the Agent, pay to the Agent for account of that
Recovering Secured Party an amount equal to the appropriate part of
its share of the Sharing Payment (together with an amount as is
necessary to reimburse that Recovering Secured Party for its
proportion of any interest on the Sharing Payment which that
Recovering Secured Party is required to pay); and
(b) that Recovering Secured Party's rights of subrogation in respect of
any reimbursement shall be cancelled and the Parent or the relevant
Obligor will be liable to the reimbursing Secured Party for the
amount so reimbursed.
28.5 EXCEPTIONS
(a) This Clause 28 shall not apply to the extent that the Recovering Secured
Party would not, after making any payment pursuant to this Clause, have a
valid and enforceable claim against the Parent or the relevant Obligor.
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(b) A Recovering Secured Party is not obliged to share with any other Secured
Party any amount which the Recovering Secured Party has received or
recovered as a result of taking legal or arbitration proceedings, if:
(i) it notified that other Secured Party of the legal or arbitration
proceedings; and
(ii) that other Secured Party had an opportunity to participate in those
legal or arbitration proceedings but did not do so as soon as
reasonably practicable having received notice and did not take
separate legal or arbitration proceedings.
(c) If an Ancillary Lender provides an overdraft facility this clause shall
not apply to the extent that the Ancillary Lender nets credit and debit
balances in relation to bank accounts provided by it.
(d) This clause shall not apply to the extent that the ID Bank nets credit and
debit balances in relation to the bank accounts operated as part of the
Invoice Discounting Agreements.
(e) The ID Bank is not obliged to share with any other Secured Party any
amount which it has received or recovered as a result of its collection of
the Bought Debts, save as is necessary to give effect to the rights of
subrogation of a Lender who makes Loss Share Payment(s) under sub-clause
28.6 (Loss Share) below.
28.6 LOSS SHARE
(a) Each of the Lenders and the ID Bank agree that, to the extent that the ID
Bank does not recover within 30 days of making demand all amounts owing to
it in connection with Facility B2, they shall pay to the ID Bank within 5
Business Days of demand, the proportion of such shortfall as is equal to
each Lenders' percentage participation in the Total Commitments excluding
for these purposes the Total Facility B2 Commitments (any such payment a
"LOSS SHARE PAYMENT").
(b) For the avoidance of doubt, no Lender shall be required to make any Loss
Share Payment(s) pursuant to Clause 28.6(a) above in an aggregate amount
in excess of (pound)3,750,000.
(c) To the extent that any Loss Share Payment is made pursuant to Clause
28.6(a) above, such Lender shall be subrogated to the extent possible to
that part of the ID Bank's claim under Facility B2 against the ID Obligors
which corresponds to the relevant Loss Share Payment. However, for the
avoidance of doubt, no such Lender shall receive any payment from or
exercise any rights against the ID Obligors as a result of such
subrogation until after the ID Bank has received the relevant Loss Share
Payment from it.
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SECTION 11
ADMINISTRATION
29. PAYMENT MECHANICS
29.1 PAYMENTS TO THE AGENT
(a) On each date on which the Parent, an Obligor or a Lender is required to
make a payment under a Finance Document, the Parent or that Obligor
(subject to Clause 29.10 (Payments to the Security Agent) or Lender shall
make the same available to the Agent (unless a contrary indication appears
in a Finance Document) for value on the due date at the time and in such
funds specified by the Agent as being customary at the time for settlement
of transactions in the relevant currency in the place of payment.
(b) Payment shall be made to such account in the principal financial centre of
the country of that currency (or, in relation to euro, in the principal
financial centre in a Participating Member State or London) with such bank
as the Agent specifies.
29.2 DISTRIBUTIONS BY THE AGENT
Each payment received by the Agent under the Finance Documents for another
Party shall, subject to Clause 29.3 (Distributions to the Parent or an
Obligor) and Clause 29.4 (Clawback) and Clause 29.10 (Payments to the
Security Agent), be made available by the Agent as soon as practicable
after receipt to the Party entitled to receive payment in accordance with
this Agreement (in the case of a Lender, for the account of its Facility
Office), to such account as that Party may notify to the Agent by not less
than five Business Days' notice with a bank in the principal financial
centre of the country of that currency (or, in relation to euro, in the
principal financial centre of a Participating Member State or London).
29.3 DISTRIBUTIONS TO THE PARENT OR AN OBLIGOR
The Agent and the Security Agent may (with the consent of the Parent or
the Obligor or in accordance with Clause 30 (Set-off)) apply any amount
received by it for the Parent or that Obligor in or towards payment (on
the date and in the currency and funds of receipt) of any amount due from
the Parent or that Obligor under the Finance Documents or in or towards
purchase of any amount of any currency to be so applied.
29.4 CLAWBACK
(a) Where a sum is to be paid to the Agent or the Security Agent under the
Finance Documents for another Party, the Agent or, as the case may be, the
Security Agent is not obliged to pay that sum to that other Party (or to
enter into or perform any related exchange contract) until it has been
able to establish to its satisfaction that it has actually received that
sum.
(b) If the Agent or the Security Agent pays an amount to another Party and it
proves to be the case that it had not actually received that amount, then
the Party to whom that amount (or the proceeds of any related exchange
contract) was paid shall on demand refund the same to the Agent or, as the
case may be, the Security Agent together with interest on that amount from
the date of payment to the date of receipt by the Agent or, as the case
may be, the Security Agent, calculated by it to reflect its cost of funds.
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29.5 PARTIAL PAYMENTS
(a) If the Agent receives a payment that is insufficient to discharge all the
amounts then due and payable by the Parent or an Obligor under the Finance
Documents, the Agent shall apply that payment towards the obligations of
the Parent or that Obligor under the Finance Documents in the following
order:
(i) first, in or towards payment pro rata of any unpaid fees, costs and
expenses of the Agent, the Security Agent or the Arranger under the
Finance Documents;
(ii) secondly, in or towards payment pro rata of any accrued interest,
fee or commission due but unpaid under this Agreement;
(iii) thirdly, in or towards payment pro rata of any principal due but
unpaid under this Agreement or any sums due but unpaid under the
Invoice Discounting Agreements; and
(iv) fourthly, in or towards payment pro rata of any other sum due but
unpaid under the Finance Documents.
(b) The Agent shall, if so directed by the Majority Lenders, vary the order
set out in paragraphs (a)(ii) to (iv) above.
(c) Paragraphs (a) and (b) above will override any appropriation made by the
Parent or an Obligor.
29.6 NO SET-OFF BY THE PARENT OR OBLIGORS
All payments to be made by the Parent or an Obligor under the Finance
Documents shall be calculated and be made without (and free and clear of
any deduction for) set-off or counterclaim.
29.7 BUSINESS DAYS
(a) Any payment which is due to be made on a day that is not a Business Day
shall be made on the next Business Day in the same calendar month (if
there is one) or the preceding Business Day (if there is not).
(b) During any extension of the due date for payment of any principal or
Unpaid Sum under this Agreement interest is payable on the principal or
Unpaid Sum at the rate payable on the original due date.
29.8 CURRENCY OF ACCOUNT
(a) Subject to paragraphs (b) to (e) below, the Base Currency is the currency
of account and payment for any sum due from the Parent or an Obligor under
any Finance Document.
(b) A repayment of a Loan or Unpaid Sum or a part of a Loan or Unpaid Sum
shall be made in the currency in which that Loan or Unpaid Sum is
denominated on its due date.
(c) Each payment of interest shall be made in the currency in which the sum in
respect of which the interest is payable was denominated when that
interest accrued.
(d) Each payment in respect of costs, expenses or Taxes shall be made in the
currency in which the costs, expenses or Taxes are incurred.
(e) Any amount expressed to be payable in a currency other than the Base
Currency shall be paid in that other currency.
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29.9 CHANGE OF CURRENCY
(a) Unless otherwise prohibited by law, if more than one currency or currency
unit are at the same time recognised by the central bank of any country as
the lawful currency of that country, then:
(i) any reference in the Finance Documents to, and any obligations
arising under the Finance Documents in, the currency of that country
shall be translated into, or paid in, the currency or currency unit
of that country designated by the Agent (after consultation with the
Company); and
(ii) any translation from one currency or currency unit to another shall
be at the official rate of exchange recognised by the central bank
for the conversion of that currency or currency unit into the other,
rounded up or down by the Agent (acting reasonably).
(b) If a change in any currency of a country occurs, this Agreement will, to
the extent the Agent (acting reasonably and after consultation with the
Company) specifies to be necessary, be amended to comply with any
generally accepted conventions and market practice in the Relevant
Interbank Market and otherwise to reflect the change in currency.
29.10 PAYMENTS TO THE SECURITY AGENT
Notwithstanding any other provision of any Finance Document, at any time
after any Security created by or pursuant to any Security Document becomes
enforceable, the Security Agent may require:
(a) the Parent or any Obligor to pay all sums due under any Finance Document;
or
(b) the Agent to pay all sums received or recovered from the Parent or an
Obligor under any Finance Document,
in each case as the Security Agent may direct for application in
accordance with the terms of the Security Documents.
30. SET-OFF
A Secured Party may set off any matured obligation due from the Parent or
an Obligor under the Finance Documents (to the extent beneficially owned
by that Secured Party) against any matured obligation owed by that Secured
Party to the Parent or that Obligor, regardless of the place of payment,
booking branch or currency of either obligation. If the obligations are in
different currencies, the Secured Party may convert either obligation at a
market rate of exchange in its usual course of business for the purpose of
the set-off.
31. NOTICES
31.1 COMMUNICATIONS IN WRITING
Any communication to be made under or in connection with the Finance
Documents shall be made in writing and, unless otherwise stated, may be
made by fax or letter.
31.2 ADDRESSES
The address and fax number (and the department or officer, if any, for
whose attention the communication is to be made) of each Party for any
communication or document to be made or delivered under or in connection
with the Finance Documents is:
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(a) in the case of the Company or the Parent, that identified with its
name below;
(b) in the case of the Original Borrowers, that of the Company;
(c) in the case of each Lender or any other Original Obligor, that
notified in writing to the Agent on or prior to the date on which it
becomes a Party; and
(d) in the case of the ID Bank, the Agent and the Security Agent, that
identified with its name below,
or any substitute address, fax number or department or officer as the
Party may notify to the Agent (or the Agent may notify to the other
Parties, if a change is made by the Agent) by not less than five Business
Days' notice.
31.3 DELIVERY
(a) Any communication or document made or delivered by one person to another
under or in connection with the Finance Documents will only be effective:
(i) if by way of fax, when received in legible form; or
(ii) if by way of letter, when it has been left at the relevant address or
10 Business Days after being deposited in the post postage prepaid in
an envelope addressed to it at that address,
and, if a particular department or officer is specified as part of its
address details provided under Clause 31.2 (Addresses), if addressed to
that department or officer.
(b) Any communication or document to be made or delivered to the Agent or the
Security Agent will be effective only when actually received by the Agent
and then only if it is expressly marked for the attention of the
department or officer identified with its signature below (or any
substitute department or officer as it shall specify for this purpose).
(c) All notices from or to the Parent or an Obligor shall be sent through the
Agent.
(d) Any communication or document made or delivered to the Company in
accordance with this Clause will be deemed to have been made or delivered
to the Parent and each of the Obligors.
31.4 NOTIFICATION OF ADDRESS AND FAX NUMBER
Promptly upon receipt of notification of an address and fax number or
change of address or fax number pursuant to Clause 31.2 (Addresses) or
changing its own address or fax number, the Agent shall notify the other
Parties.
31.5 ELECTRONIC COMMUNICATION
(a) Any communication to be made between the Agent and a Lender under or in
connection with the Finance Documents may be made by electronic mail or
other electronic means, if the Agent and the relevant Lender:
(i) agree that, unless and until notified to the contrary, this is to be
an accepted form of communication;
(ii) notify each other in writing of their electronic mail address and/or
any other information required to enable the sending and receipt of
information by that means; and
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(iii) notify each other of any change to their address or any other such
information supplied by them.
(b) Any electronic communication made between the Agent and a Lender will be
effective only when actually received in readable form and in the case of
any electronic communication made by a Lender to the Agent only if it is
addressed in such a manner as the Agent shall specify for this purpose.
31.6 ENGLISH LANGUAGE
(a) Any notice given under or in connection with any Finance Document must be
in English.
(b) All other documents provided under or in connection with any Finance
Document must be:
(i) in English; or
(ii) if not in English, and if so required by the Agent, accompanied by a
certified English translation and, in this case, the English
translation will prevail unless the document is a constitutional,
statutory or other official document.
32. CALCULATIONS AND CERTIFICATES
32.1 ACCOUNTS
In any litigation or arbitration proceedings arising out of or in
connection with a Finance Document, the entries made in the accounts
maintained by a Secured Party are prima facie evidence of the matters to
which they relate.
32.2 CERTIFICATES AND DETERMINATIONS
Any certification or determination by a Secured Party of a rate or amount
under any Finance Document is, in the absence of manifest error,
conclusive evidence of the matters to which it relates.
32.3 DAY COUNT CONVENTION
Any interest, commission or fee accruing under a Finance Document will
accrue from day to day and is calculated on the basis of the actual number
of days elapsed and a year of 360 days or, in any case where the practice
in the Relevant Interbank Market differs, in accordance with that market
practice.
33. PARTIAL INVALIDITY
If, at any time, any provision of the Finance Documents is or becomes
illegal, invalid or unenforceable in any respect under any law of any
jurisdiction, neither the legality, validity or enforceability of the
remaining provisions nor the legality, validity or enforceability of such
provision under the law of any other jurisdiction will in any way be
affected or impaired.
34. REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of any
Secured Party, any right or remedy under the Finance Documents shall
operate as a waiver, nor shall any single or partial exercise of any right
or remedy prevent any further or other exercise or the exercise of any
other right or remedy. The rights and remedies provided in this Agreement
are cumulative and not exclusive of any rights or remedies provided by
law.
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35. AMENDMENTS AND WAIVERS
35.1 REQUIRED CONSENTS
(a) Subject to Clause 35.2 (Exceptions) any term of the Finance Documents
(other than the Ancillary Documents and the Invoice Discounting
Agreements) may be amended or waived only with the consent of the Majority
Lenders, the Parent and the Obligors and any such amendment or waiver will
be binding on all Parties.
(b) The Agent may effect, on behalf of any Finance Party, any amendment or
waiver permitted by this Clause.
35.2 EXCEPTIONS
(a) An amendment or waiver that has the effect of changing or which relates
to:
(i) the definition of "Majority Lenders" in Clause 1.1 (Definitions);
(ii) an extension to the date of payment of any amount under the Finance
Documents;
(iii) a reduction in the Margin or a reduction in the amount of any
payment of principal, interest, fees or commission payable;
(iv) an increase in or an extension of any Commitment;
(v) a change to Clause 25 (Changes to the Obligors);
(vi) any provision which expressly requires the consent of all the
Lenders;
(vii) Clause 2.2 (Secured Parties' rights and obligations), Clause 24
(Changes to the Lenders), Clause 28 (Sharing among the Secured
Parties) or this Clause 35; or
(viii) the release of any Security created pursuant to any Security
Document or of any Charged Assets (except as provided in any
Security Document),
shall not be made without the prior consent of all the Lenders.
(b) An amendment or waiver which relates to the rights or obligations of the
Agent, the Security Agent, the ID Bank or the Arranger may not be effected
without the consent of the Agent, the Security Agent, the ID Bank or, as
the case may be the Arranger.
36. COUNTERPARTS
Each Finance Document may be executed in any number of counterparts, and
this has the same effect as if the signatures on the counterparts were on
a single copy of the Finance Document.
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SECTION 12
GOVERNING LAW AND ENFORCEMENT
37. GOVERNING LAW
This Agreement is governed by English law.
38. ENFORCEMENT
38.1 JURISDICTION
(a) The courts of England have exclusive jurisdiction to settle any dispute
arising out of or in connection with this Agreement (including a dispute
regarding the existence, validity or termination of this Agreement) (a
"DISPUTE").
(b) The Parties agree that the courts of England are the most appropriate and
convenient courts to settle Disputes and accordingly no Party will argue
to the contrary.
(c) This Clause 38.1 is for the benefit of the Secured Parties only. As a
result, no Secured Party shall be prevented from taking proceedings
relating to a Dispute in any other courts with jurisdiction. To the extent
allowed by law, the Secured Parties may take concurrent proceedings in any
number of jurisdictions.
38.2 SERVICE OF PROCESS
(a) Without prejudice to any other mode of service allowed under any
relevant law, the Parent and each Obligor (other than an Obligor
incorporated in England and Wales):
(i) irrevocably appoints the Company as its agent for service of
process in relation to any proceedings before the English courts
in connection with any Finance Document; and
(ii) agrees that failure by a process agent to notify the Parent or
the relevant Obligor of the process will not invalidate the
proceedings concerned.
(b) The Company accepts the appointment as agent for service of process as
set out in this Clause 38.2.
THIS AGREEMENT HAS BEEN ENTERED INTO ON THE DATE STATED AT THE BEGINNING OF THIS
AGREEMENT.
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SCHEDULE (1)
THE ORIGINAL PARTIES
PART I
THE ORIGINAL BORROWERS
REGISTRATION NUMBER
NAME OF ORIGINAL BORROWER (OR EQUIVALENT, IF ANY)
---------------------------------------- -----------------------
ALLIED HEALTHCARE GROUP HOLDINGS LIMITED 03890177
ALLIED HEALTHCARE HOLDINGS LIMITED 03370146
ALLIED HEALTHCARE GROUP LIMITED 01689856
ALLIED RESPIRATORY LIMITED 02230411
BALFOR MEDICAL LIMITED 03408741
CRYSTALGLEN LIMITED 02753961
MEDIGAS LIMITED 01143289
NIGHTINGALE NURSING BUREAU LIMITED 02158123
OMNICARE LIMITED 03073148
ALLIED STAFFING PROFESSIONALS LIMITED 02149723
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PART II
THE ORIGINAL GUARANTORS
REGISTRATION NUMBER
NAME OF ORIGINAL GUARANTOR (OR EQUIVALENT, IF ANY)
---------------------------------------- -----------------------
ALLIED HEALTHCARE GROUP HOLDINGS LIMITED 03890177
ALLIED HEALTHCARE HOLDINGS LIMITED 03370146
ALLIED HEALTHCARE GROUP LIMITED 01689856
ALLIED RESPIRATORY LIMITED 02230411
BALFOR MEDICAL LIMITED 03408741
CRYSTALGLEN LIMITED 02753961
MEDIGAS LIMITED 01143289
NIGHTINGALE NURSING BUREAU LIMITED 02158123
OMNICARE LIMITED 03073148
ALLIED STAFFING PROFESSIONALS LIMITED 02149723
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PART III
THE ORIGINAL LENDERS - OTHER THAN UK NON-BANK LENDERS
FACILITY A COMMITMENT FACILITY C COMMITMENT
NAME OF ORIGINAL LENDER ((POUND)) ((POUND))
----------------------- --------------------- ---------------------
BARCLAYS BANK PLC 9,000,000 4,000,000
LLOYDS TSB BANK PLC 9,000,000 4,000,000
---------- ---------
TOTAL 18,000,000 8,000,000
PERIOD A FACILITY B1 AND FACILITY B2 COMMITMENTS
PERIOD A FACILITY B1 PERIOD A FACILITY B2
NAME OF ORIGINAL LENDER COMMITMENT ((POUND)) COMMITMENT ((POUND))
----------------------- -------------------- --------------------
BARCLAYS BANK PLC 10,000,000 0
LLOYDS TSB BANK PLC 10,000,000 0
TOTAL 20,000,000 0
PERIOD A FACILITY B1 AND FACILITY B2 COMMITMENTS
PERIOD B FACILITY B1 PERIOD B FACILITY B2
NAME OF ORIGINAL LENDER COMMITMENT ((POUND)) COMMITMENT ((POUND))
----------------------- -------------------- --------------------
BARCLAYS BANK PLC 6,250,000 7,500,000
LLOYDS TSB BANK PLC 6,250,000 0
TOTAL 12,500,000 7,500,000
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99
PART IV
THE ORIGINAL LENDERS - UK NON-BANK LENDERS
FACILITY A FACILITY B1 FACILITY B2 FACILITY C
COMMITMENT COMMITMENT COMMITMENT COMMITMENT
NAME OF ORIGINAL LENDER ((POUND)) ((POUND)) ((POUND)) ((POUND))
----------------------- ---------- ----------- ----------- ----------
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100
SCHEDULE 2
CONDITIONS PRECEDENT
PART I
CONDITIONS PRECEDENT REQUIRED TO BE
DELIVERED BY AN ADDITIONAL OBLIGOR
1. An Accession Letter, duly executed by the Additional Obligor and the
Company.
2. A copy of the constitutional documents of the Additional Obligor.
3. A copy of a resolution of the board of directors of the Additional Obligor:
(a) approving the terms of, and the transactions contemplated by, the
Accession Letter and the Finance Documents and resolving that it
execute the Accession Letter;
(b) authorising a specified person or persons to execute the Accession
Letter on its behalf; and
(c) authorising a specified person or persons, on its behalf, to sign
and/or despatch all other documents and notices (including, in
relation to an Additional Borrower, any Utilisation Request or
Selection Notice) to be signed and/or despatched by it under or in
connection with the Finance Documents.
4. A specimen of the signature of each person authorised by the resolution
referred to in paragraph 3 above.
5. If the Additional Guarantor is incorporated in England and Wales, or if so
required by the Agent, a copy of a resolution signed by all the holders of
the issued shares of the Additional Guarantor, approving the terms of, and
the transactions contemplated by, the Finance Documents to which the
Additional Guarantor is a party.
6. A certificate of the Additional Obligor (signed by a director) confirming
that the borrowing guaranteeing, as appropriate, the Total Commitments
would not cause any guaranteeing or similar limit binding on it to be
exceeded.
7. A certificate of an authorised signatory of the Additional Obligor
certifying that each copy document listed in this Part II of Schedule 2 is
correct, complete and in full force and effect as at a date no earlier than
the date of the Accession Letter.
8. A copy of any other Authorisation or other document, opinion or assurance
which the Agent considers to be necessary or desirable in connection with
the entry into and performance of the transactions contemplated by the
Accession Letter or for the validity and enforceability of any Finance
Document.
9. If available, the latest audited financial statements of the Additional
Obligor.
10. A legal opinion of Linklaters, legal advisers to the Arranger and the Agent
in England.
11. If the Additional Obligor is incorporated in a jurisdiction other than
England and Wales, a legal opinion of the legal advisers to the Arranger
and the Agent in the jurisdiction in which the Additional Obligor is
incorporated.
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12. If the Additional Obligor is incorporated in England and Wales, evidence of
compliance with the procedures set out in Sections 155-158 of the Companies
Xxx 0000 for permitting the financial assistance constituted by this
Agreement and/or under the other Finance Documents, including:
(a) certified copies of the relevant directors' statutory declarations and
auditors' reports;
(b) certified copies of the up-to-date register of directors;
(c) a letter from the auditors addressed to the Finance Parties for the
purpose of Section 155(2) of the Companies Xxx 0000;
(d) confirmation that the relevant directors' statutory declarations have
been filed at Companies House; and
(e) if the Additional Obligor is a public limited company, a certificate
of re-registration as a private limited company from the Registrar at
Companies House.
13. If the Additional Obligor is incorporated in a jurisdiction other than
England and Wales, evidence of compliance with any similar or equivalent
procedure for permitting financial assistance.
14. If the proposed Additional Obligor is incorporated in a jurisdiction other
than England and Wales, evidence that the process agent specified in Clause
38.2 (Service of process), if not an Obligor, has accepted its appointment
in relation to the proposed Additional Obligor.
15. A supplemental Debenture, duly executed by the Additional Obligor together
with such other documents relating to the security granted pursuant to that
supplemental Debenture as the Security Agent may require.
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SCHEDULE 3
REQUESTS
PART I
UTILISATION REQUEST
From: [Relevant Borrower]
To: Barclays Bank PLC
Dated: ____________
Dear Sirs
ALLIED HEALTHCARE GROUP HOLDINGS LIMITED -- FACILITY AGREEMENT
DATED [______] (THE "AGREEMENT")
1. We refer to the Agreement. This is a Utilisation Request. Terms defined in
the Agreement have the same meaning in this Utilisation Request unless
given a different meaning in this Utilisation Request.
2. We wish to borrow a Loan on the following terms:
Proposed Utilisation Date: [_________] or, if that is not a Business Day, the
next Business Day)
Facility to be utilised: [Facility A]/[Facility B1]/[Facility C]*
Currency of Loan: [_________]
Amount: [_________] or, if less, the Available Facility
Interest Period: [_________]
3. We confirm that each condition specified in Clause 4.2 (Further conditions
precedent) is satisfied on the date of this Utilisation Request.
4. The proceeds of this Loan should be credited to [account].
5. This Utilisation Request is irrevocable.
Yours faithfully
-------------------------------
authorised signatory for
[Relevant Borrower]
----------
* Delete as appropriate
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PART II
SELECTION NOTICE
APPLICABLE TO A FACILITY A LOAN
From: [Relevant Borrower]
To: Barclays Bank PLC
Dated: ______________
Dear Sirs
ALLIED HEALTHCARE GROUP HOLDINGS LIMITED - FACILITY AGREEMENT
DATED [______] THE "AGREEMENT")
1. We refer to the Agreement. This is a Selection Notice. Terms defined in the
Agreement have the same meaning in this Selection Notice unless given a
different meaning in this Selection Notice.
2. We refer to the following Facility A Loan in identify currency with an
Interest Period ending on [_________]].*
3. We request that the above Facility A Loan be divided into [________]
Facility A Loans with the following Base Currency Amounts and Interest
Periods:**
or
We request that the next Interest Period for the above Facility A Loan[s]
is [____________].***
4. We request that the above Facility A Loan[s] [is][are] [denominated in the
same currency for the next Interest Period]/[denominated in the following
currencies: [____________]]. As this results in a change of currency we
confirm that each condition specified in Clause 4.2 (Further conditions
precedent) is satisfied on the date of this Selection Notice. The proceeds
of any change in currency should be credited to [account].
5. This Selection Notice is irrevocable.
Yours faithfully
-----------------------------------
authorised signatory for
[Relevant Borrower]
----------
* Insert details of all Facility A Loans in the same currency which have an
Interest Period ending on the same date.
** Use this option if division of Loans is requested.
*** Use this option if sub-division is not required.
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SCHEDULE 4
MANDATORY COST FORMULAE
1. The Mandatory Cost is an addition to the interest rate to compensate
Lenders for the cost of compliance with (a) the requirements of the Bank of
England and/or the Financial Services Authority (or, in either case, any
other authority which replaces all or any of its functions) or (b) the
requirements of the European Central Bank.
2. On the first day of each Interest Period (or as soon as possible
thereafter) the Agent shall calculate, as a percentage rate, a rate (the
"ADDITIONAL COST RATE") for each Lender, in accordance with the paragraphs
set out below. The Mandatory Cost will be calculated by the Agent as a
weighted average of the Lenders' Additional Cost Rates (weighted in
proportion to the percentage participation of each Lender in the relevant
Loan) and will be expressed as a percentage rate per annum.
3. The Additional Cost Rate for any Lender lending from a Facility Office in a
Participating Member State will be the percentage notified by that Lender
to the Agent. This percentage will be certified by that Lender in its
notice to the Agent to be its reasonable determination of the cost
(expressed as a percentage of that Lender's participation in all Loans made
from that Facility Office) of complying with the minimum reserve
requirements of the European Central Bank in respect of loans made from
that Facility Office.
4. The Additional Cost Rate for any Lender lending from a Facility Office in
the United Kingdom will be calculated by the Agent as follows:
(a) in relation to a sterling Loan:
AB + C(B-D) + E x 0.01
---------------------- per cent. per annum
100 - (A + C)
(b) in relation to a Loan in any currency other than sterling:
E x 0.01
-------- per cent. per annum.
300
Where:
A is the percentage of Eligible Liabilities (assuming these to be in
excess of any stated minimum) which that Lender is from time to time
required to maintain as an interest free cash ratio deposit with the
Bank of England to comply with cash ratio requirements.
B is the percentage rate of interest (excluding the Margin and the
Mandatory Cost and, if the Loan is an Unpaid Sum, the additional rate
of interest specified in paragraph (a) of Clause 9.3 (Default
interest)) payable for the relevant Interest Period on the Loan.
C is the percentage (if any) of Eligible Liabilities which that Lender
is required from time to time to maintain as interest bearing Special
Deposits with the Bank of England.
D is the percentage rate per annum payable by the Bank of England to the
Agent on interest bearing Special Deposits.
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E is designed to compensate Lenders for amounts payable under the Fees
Rules and is calculated by the Agent as being the average of the most
recent rates of charge supplied by the Reference Banks to the Agent
pursuant to paragraph 7 below and expressed in pounds per
(pound)1,000,000.
5. For the purposes of this Schedule:
(a) "ELIGIBLE LIABILITIES" and "SPECIAL DEPOSITS" have the meanings given to
them from time to time under or pursuant to the Bank of England Act 1998 or
(as may be appropriate) by the Bank of England;
(b) "FEES RULES" means the rules on periodic fees contained in the FSA
Supervision Manual or such other law or regulation as may be in force from
time to time in respect of the payment of fees for the acceptance of
deposits;
(c) "FEE TARIFFS" means the fee tariffs specified in the Fees Rules under the
activity group A.1 Deposit acceptors (ignoring any minimum fee or zero
rated fee required pursuant to the Fees Rules but taking into account any
applicable discount rate); and
(d) "TARIFF BASE" has the meaning given to it in, and will be calculated in
accordance with, the Fees Rules.
6. In application of the above formulae, A, B, C and D will be included in the
formulae as percentages (i.e. 5 per cent will be included in the formula as
5 and not as 0.05). A negative result obtained by subtracting D from B
shall be taken as zero. The resulting figures shall be rounded to four
decimal places.
7. If requested by the Agent, each Reference Bank shall, as soon as
practicable after publication by the Financial Services Authority, supply
to the Agent, the rate of charge payable by that Reference Bank to the
Financial Services Authority pursuant to the Fees Rules in respect of the
relevant financial year of the Financial Services Authority (calculated for
this purpose by that Reference Bank as being the average of the Fee Tariffs
applicable to that Reference Bank for that financial year) and expressed in
pounds per (pound)1,000,000 of the Tariff Base of that Reference Bank.
8. Each Lender shall supply any information required by the Agent for the
purpose of calculating its Additional Cost Rate. In particular, but without
limitation, each Lender shall supply the following information on or prior
to the date on which it becomes a Lender:
(a) the jurisdiction of its Facility Office; and
(b) any other information that the Agent may reasonably require for such
purpose.
Each Lender shall promptly notify the Agent of any change to the
information provided by it pursuant to this paragraph.
9. The percentages of each Lender for the purpose of A and C above and the
rates of charge of each Reference Bank for the purpose of E above shall be
determined by the Agent based upon the information supplied to it pursuant
to paragraphs 7 and 8 above and on the assumption that, unless a Lender
notifies the Agent to the contrary, each Lender's obligations in relation
to cash
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106
ratio deposits and Special Deposits are the same as those of a typical bank
from its jurisdiction of incorporation with a Facility Office in the same
jurisdiction as its Facility Office.
10. The Agent shall have no liability to any person if such determination
results in an Additional Cost Rate which over or under compensates any
Lender and shall be entitled to assume that the information provided by any
Lender or Reference Bank pursuant to paragraphs 3, 7 and 8 above is true
and correct in all respects.
11. The Agent shall distribute the additional amounts received as a result of
the Mandatory Cost to the Lenders on the basis of the Additional Cost Rate
for each Lender based on the information provided by each Lender and each
Reference Bank pursuant to paragraphs 3, 7 and 8 above.
12. Any determination by the Agent pursuant to this Schedule in relation to a
formula, the Mandatory Cost, an Additional Cost Rate or any amount payable
to a Lender shall, in the absence of manifest error, be conclusive and
binding on all Parties.
13. The Agent may from time to time, after consultation with the Company and
the Lenders, determine and notify to all Parties any amendments which are
required to be made to this Schedule in order to comply with any change in
law, regulation or any requirements from time to time imposed by the Bank
of England, the Financial Services Authority or the European Central Bank
(or, in any case, any other authority which replaces all or any of its
functions) and any such determination shall, in the absence of manifest
error, be conclusive and binding on all Parties.
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107
SCHEDULE 5
FORM OF TRANSFER CERTIFICATE
To: Barclays Bank PLC as Agent
From: [__________] (the "Existing Lender") and [__________] (the "New Lender")
Dated:
ALLIED HEALTHCARE GROUP HOLDINGS LIMITED - FACILITY AGREEMENT
DATED [__________] (THE "AGREEMENT")
1. We refer to the Agreement. This is a Transfer Certificate. Terms defined in
the Agreement have the same meaning in this Transfer Certificate unless
given a different meaning in this Transfer Certificate.
2. We refer to Clause 24.5 (Procedure for transfer):
(a) The Existing Lender and the New Lender agree to the Existing Lender
transferring to the New Lender by novation all or part of the Existing
Lender's Commitment, rights and obligations referred to in the
Schedule in accordance with Clause 24.5 (Procedure for transfer).
(b) The proposed Transfer Date is [_________].
(c) The Facility Office and address, fax number and attention details for
notices of the New Lender for the purposes of Clause 31.2 (Addresses)
are set out in the Schedule.
3. The New Lender expressly acknowledges the limitations on the Existing
Lender's obligations set out in paragraph (c) of Clause 24.4 (Limitation of
responsibility of Existing Lenders).
4. [The New Lender confirms that the person beneficially entitled to interest
payable to that Lender in respect of an advance under a Finance Document is
either:
(a) a company resident in the United Kingdom for United Kingdom tax
purposes;]
(b) [a partnership each member of which is:
(i) a company so resident in the United Kingdom; or
(ii) a company not so resident in the United Kingdom which carries
on a trade in the United Kingdom through a permanent
establishment and which brings into account in computing its
chargeable profits (for the purposes of section 11(2) of the
Taxes Act) the whole of any share of interest payable in
respect of that advance that falls to it by reason of sections
114 and 115 of the Taxes Act; or]
(iii) [a company not so resident in the United Kingdom which carries
on a trade in the United Kingdom through a permanent
establishment and which brings into account interest payable
in respect of that advance in computing the chargeable profits
(for the purposes of section 11(2) of the Taxes Act) of that
company.]*
5. This Transfer Certificate may be executed in any number of counterparts and
this has the same effect as if the signatures on the counterparts were on a
single copy of this Transfer Certificate.
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6. This Transfer Certificate is governed by English law.
----------
* Include if the New Lender comes within paragraph (ii) of the definition of
Qualifying Lender in Clause 13.1 (Definitions).
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THE SCHEDULE
COMMITMENT/RIGHTS AND OBLIGATIONS TO BE TRANSFERRED
[insert relevant details]
[Facility Office address, fax number and attention details for notices and
account details for payments.]
[Existing Lender] [New Lender ]
By: By:
--------------------------------- ------------------------------------
This Transfer Certificate is accepted by the Agent and the Transfer Date is
confirmed as [____________].
Barclays Bank PLC
By:
--------------------------
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SCHEDULE 6
FORM OF ACCESSION LETTER
To: Barclays Bank PLC as Agent
From: [Subsidiary] and Allied Healthcare Group Holdings Limited
Dated:
Dear Sirs
ALLIED HEALTHCARE GROUP HOLDINGS LIMITED - FACILITY AGREEMENT
DATED [__________] (THE "AGREEMENT")
1. We refer to the Agreement. This is an Accession Letter. Terms defined in
the Agreement have the same meaning in this Accession Letter unless given a
different meaning in this Accession Letter.
2. [Subsidiary] agrees to become an Additional [Borrower]/[Guarantor] and to
be bound by the terms of the Agreement as an Additional
[Borrower]/[Guarantor] pursuant to [Clause 25.2 (Additional
Borrowers)]/[Clause 25.4 (Guarantors)] of the Agreement. [Subsidiary] is a
company duly incorporated under the laws of [name of relevant
jurisdiction].
3. [Subsidiary's] administrative details are as follows:
Address:
Fax No:
Attention:
4. This Accession Letter is governed by English law.
5. [This Guarantor Accession Letter is entered into by deed.]
Allied Healthcare Group Holdings Limited [Subsidiary]
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SCHEDULE 7
SECURITY AGENCY PROVISIONS
1. DEFINITIONS
In this Schedule:
"SECURITY PROPERTY" means all right, title and interest in, to and under
any Security Document, including:
(a) the Charged Assets;
(b) the benefit of the undertakings in any Security Document; and
(c) all sums received or recovered by the Security Agent pursuant to any
Security Document and any assets representing the same.
2. DECLARATION OF TRUST
The Security Agent and each other Secured Party agree that the Security
Agent shall hold the Security Property in trust for the benefit of the
Secured Parties on the terms of the Finance Documents.
3. DEFECTS IN SECURITY
The Security Agent shall not be liable for any failure or omission to
perfect, or defect in perfecting, the Security created pursuant to any
Security Document, including:
(a) failure to obtain any Authorisation for the execution, validity,
enforceability or admissibility in evidence of any Security Document;
or
(b) failure to effect or procure registration of or otherwise protect or
perfect any of the Security created by the Security Documents under
any laws in any territory.
4. NO ENQUIRY
The Security Agent may accept without enquiry, requisition, objection or
investigation such title as the Parent or any Obligor may have to any
Charged Assets.
5. RETENTION OF DOCUMENTS
The Security Agent may hold title deeds and other documents relating to any
of the Charged Assets in such manner as it sees fit (including allowing the
Parent or any Obligor to retain them).
6. INDEMNITY OUT OF SECURITY PROPERTY
The Security Agent and every receiver, delegate, attorney, agent or other
similar person appointed under any Security Document may indemnify itself
out of the Security Property against any cost, loss or liability incurred
by it in that capacity (otherwise than by reason of its own gross
negligence or wilful misconduct).
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7. BASIS OF DISTRIBUTION
To enable it to make any distribution, the Security Agent may fix a date as
at which the amount of the Liabilities is to be calculated and may require,
and rely on, a certificate from any Secured Party giving details of:
(a) any sums due or owing to any Secured Party as at that date; and
(b) such other matters as it thinks fit.
8. RIGHTS OF SECURITY AGENT
The Security Agent shall have all the rights, privileges and immunities
which gratuitous trustees have or may have in England, even though it is
entitled to remuneration.
9. NO DUTY TO COLLECT PAYMENTS
The Security Agent shall not have any duty:
(a) to ensure that any payment or other financial benefit in respect of
any of the Charged Assets is duly and punctually paid, received or
collected; or
(b) to ensure the taking up of any (or any offer of any) stocks, shares,
rights, moneys or other property accruing or offered at any time by
way of interest, dividend, redemption, bonus, rights, preference,
option, warrant or otherwise in respect of any of the Charged Assets.
10. PERPETUITY PERIOD
The perpetuity period for the trusts created by the Finance Documents shall
be 80 years from the date of this Agreement.
11. APPROPRIATION
(a) Each Party irrevocably waives any right to appropriate any payment to, or
other sum received, recovered or held by, the Security Agent in or towards
payment of any particular part of the Liabilities and agrees that the
Security Agent shall have the exclusive right to do so.
(b) Paragraph (a) above will override any application made or purported to be
made by any other person.
12. INVESTMENTS
All money received or held by the Security Agent under the Finance
Documents may, in the name of, or under the control of, the Security Agent:
(a) be invested in any investment it may select; or
(b) be deposited at such bank or institution (including itself, any other
Secured Party or any Affiliate of any Secured Party) as it thinks fit.
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13. SUSPENSE ACCOUNT
Subject to paragraph 14 below the Security Agent may:
(a) hold in an interest bearing suspense account any money received by it
from the Parent or any Obligor; and
(b) invest an amount equal to the balance from time to time standing to
the credit of that suspense account in any of the investments
authorised by paragraph 12 above.
14. TIMING OF DISTRIBUTIONS
Distributions by the Security Agent shall be made as and when determined by
it.
15. DELEGATION
(a) The Security Agent may:
(a) employ and pay an agent selected by it to transact or conduct any
business and to do all acts required to be done by it (including the
receipt and payment of money);
(b) delegate to any person on any terms (including power to sub-delegate)
all or any of its functions; and
(c) with the prior consent of the Majority Lenders, appoint, on such terms
as it may determine, or remove, any person to act either as separate
or joint security agent with those rights and obligations vested in
the Security Agent by this Agreement or any Security Document.
(b) The Security Agent will not be:
(i) responsible to anyone for any misconduct or omission by any agent,
delegate or security agent appointed by it pursuant to paragraph (a)
above; or
(ii) bound to supervise the proceedings or acts of any such agent, delegate
or security agent,
provided that it exercises reasonable care in selecting that agent,
delegate or security agent.
16. UNWINDING
Any appropriation or distribution which later transpires to have been or is
agreed by the Security Agent to have been invalid or which has to be
refunded shall be refunded and shall be deemed never to have been made.
17. LENDERS
The Security Agent shall be entitled to assume that each Lender is a Lender
unless notified by the Agent to the contrary.
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SCHEDULE 8
FORM OF COMPLIANCE CERTIFICATE
To: Barclays Bank PLC as Agent
From: Allied Healthcare Group Holdings Limited
Dated:
Dear Sirs
ALLIED HEALTHCARE GROUP HOLDINGS LIMITED - FACILITY AGREEMENT
dated [___________] (the "Agreement")
We refer to the Agreement. This is a Compliance Certificate. Terms defined in
the Agreement have the same meaning in this Compliance Certificate unless given
a different meaning in this Compliance Certificate.
1. [We confirm that no Default is continuing.]*
2. We confirm that:
(a) the ratio of Cashflow to Total Debt Service for [that Relevant
Period][the Relevant Period ended on [___________]] was [___________]
to 1
(b) the ratio of EBITA to Interest Expense for [that Relevant Period][the
Relevant Period ended on [___________]] was [___________] to 1
(c) the ratio of Net Borrowings to EBITDA for [that Relevant Period][the
Relevant Period ended on [___________]] was [___________] to 1
3. We confirm that the Material Subsidiaries for the Relevant Period ending on
[___________]] were [___________]
4. Attached to this Compliance Certificate are the computations to justify
compliance with Clause 21 (Financial covenants) and the named Material
Subsidiaries.
Signed: Signed:
--------------------------------- ------------------------------
Finance Director of Director of
Allied Healthcare Group Holdings Allied Healthcare Group Holdings
Limited Limited
* insert applicable certification language
----------
* If this statement cannot be made, the certificate should identify any
Default that is continuing and the steps, if any, being taken to remedy it.
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We have reviewed the Facility Agreement and audited consolidated financial
statements of Allied Healthcare Group Holdings Limited for the year ended [__].
On the basis of that review and audit, nothing has come to our attention which
would require any modification to the confirmations in paragraph 3 of the above
Compliance Certificate [or which we know to be a continuing Default].
------------------------------
for and on behalf of
name of auditors of Allied Healthcare Group Holdings Limited
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SCHEDULE 9
EXISTING SECURITY
TOTAL PRINCIPAL AMOUNT OF
NAME OF MEMBER OF GROUP SECURITY INDEBTEDNESS SECURED
------------------------------- -------------------------------------------- -------------------------------
Allied Healthcare Group Limited Charge created on 4 December 2002 pursuant (pound)2,500
to a rent deposit deed over all the interest
held in a deposit held by Bridgestart
Properties Ltd
Allied Healthcare Group Limited Charge created on 17 June 2003 pursuant to a (pound)5,229
rent deposit deed over all the interest held
in a deposit held by Bridgestart Properties
Ltd
Allied Healthcare Group Limited Charge created on 17 June 2003 pursuant to a (pound)12,587
rent deposit deed over all the interest held
in a deposit held by Bridgestart Properties
Ltd
Balfor Medical Limited Charge created on 15 December 1999 pursuant All monies due or to become
to a rent deposit deed over all the interest due under the rent deposit deed
held in a deposit held by Xxx Xxxx Xxxxxxxx
Anstruther-Xxxxx Calthorpe
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SCHEDULE 10
TIMETABLES
"D - " refers to the number of Business Days before the relevant Utilisation
Date/the first day of the relevant Interest Period.
LOANS IN OTHER
LOANS IN EURO LOANS IN STERLING CURRENCIES
---------------- ----------------- ----------------
Request for approval as an Optional Not Applicable Not Applicable D - 5
Currency, if required (Clause 4.3 10:00 a.m.
(Conditions relating to Optional
Currencies))
Agent notifies the Lenders of the Not Applicable Not Applicable D - 5
request (Clause 4.3 (Conditions 3:00 p.m.
relating to Optional Currencies))
Responses by Lenders to the request Not Applicable Not Applicable D - 4
(Clause 4.3 (Conditions relating to 1:00 p.m.
Optional Currencies))
Agent notifies the Company if a Not Applicable Not Applicable D - 4
currency is approved as an Optional 5:00 p.m.
Currency in accordance with Clause 4.3
(Conditions relating to Optional
Currencies)
Delivery of a duly completed D - 3 D D - 3
Utilisation Request (Clause 5.1 9.30 a.m. 9.30 a.m. 9.30 a.m.
(Delivery of a Utilisation Request)) or
a Selection Notice (Clause 10.1
(Selection of Interest Periods))
Agent determines (in relation to a D - 3 D D - 3
Utilisation) the Base Currency Amount 11:00 a.m. 9:30a.m. 11:00 a.m.
of the Loan, if required under Clause
5.4 (Lenders' participation) and
notifies the Lenders of the Loan in
accordance with Clause 5.4 (Lenders'
participation)
Agent determines amount of the Facility D - 3 D D - 3
A Loan in Optional Currency in 11:00 a.m. 11:00 a.m. 11:00 a.m.
accordance with Clause 6.3 (Change of
currency)
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Agent determines amount of the Facility D - 3 D D - 3
A Loan in Optional Currency in 11:00 a.m. 11:00 a.m. 11:00 a.m.
accordance with Clause 6.4(a) (Same
Optional Currency during successive
Interest Periods)
LIBOR or EURIBOR is fixed Quotation Day as Quotation Day as Quotation Day as
of 11:00 a.m. of 11:00 a.m. of 11:00 a.m.
(Brussels time)
Agent receives a notification from a Quotation Day Quotation Day Quotation Day
Lender under Clause 6.2 (Unavailability 3:00 p.m. 3:00 p.m. 3:00 p.m.
of a currency)
Agent gives notice in accordance with Quotation Day Quotation Day Quotation Day
Clause 6.2 (Unavailability of a 5:00 p.m. 5:00 p.m. 5:00 p.m.
currency)
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119
SCHEDULE 11
MATERIAL SUBSIDIARIES
NAME OF MATERIAL SUBSIDIARY REGISTRATION NUMBER (OR EQUIVALENT, IF ANY)
--------------------------- -------------------------------------------
ALLIED HEALTHCARE HOLDINGS LIMITED 03370146
ALLIED HEALTHCARE GROUP LIMITED 01689856
ALLIED RESPIRATORY LIMITED 02230411
BALFOR MEDICAL LIMITED 03408741
CRYSTALGLEN LIMITED 02753961
MEDIGAS LIMITED 01143289
NIGHTINGALE NURSING BUREAU LIMITED 02158123
OMNICARE LIMITED 03073148
ALLIED STAFFING PROFESSIONALS LIMITED 02149723
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120
SCHEDULE 12
PERMITTED LOANS AND PERMITTED GUARANTEES
NONE
A07131148/0.28/12 Dec 2006
121
SCHEDULE 13
FORM OF RESIGNATION NOTICE
To: Barclays Bank PLC as Agent
From: [resigning Obligor/the Parent] and Allied Healthcare Group Limited
Dated: __________
Dear Sirs
ALLIED HEALTHCARE GROUP LIMITED - FACILITY AGREEMENT
DATED [_______] (THE "AGREEMENT")
1. We refer to the Agreement. This is a Resignation Letter. Terms defined in
the Agreement have the same meaning in this Resignation Letter unless given
a different meaning in this Resignation Letter.
2. Pursuant to [Clause 25.3 (Resignation of a Borrower)]/[Clause 25.5
(Resignation of a Guarantor)], we request that [resigning Obligor/the
Parent] be released from its obligations as a
[Borrower]/[Guarantor]/[guarantor] under the Agreement.
3. We confirm that no Default is continuing or would result from the
acceptance of this request/
4. This Resignation Letter is governed by English law.
[Company] [Subsidiary/the Parent]
By: By:
-------------------------- --------------------------------
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122
THE COMPANY
Allied Healthcare Group Holdings Limited
By: /s/ Xxxxxxx Xxxxxxx Xxxxxx
------------------------------------
Address: Xxxxx Xxxxxxxx Xxxx
Xxxxxx Xxxx
Xxxxx
Xxxxxxxxxxxxx XX00 0XX
Fax: + 00 00 0000 0000
Attention: Xxx Xxxxxx/Xxxxx Xxxxxxx
THE PARENT
Allied Healthcare International, Inc.
By: /s/ Xxxxxxx Xxxxxxx Xxxxxx
------------------------------------
Address: Xxxxx Xxxxxxxx Xxxx
Xxxxxx Xxxx
Xxxxx
Xxxxxxxxxxxxx XX00 0XX
Fax: + 00 00 0000 0000
Attention: Xxx Xxxxxx/Xxxxx Xxxxxxx
THE ORIGINAL BORROWERS
Allied Healthcare Group Holdings Limited
By: /s/ Xxxxxxx Xxxxxxx Xxxxxx
------------------------------------
Allied Healthcare Holdings Limited
By: /s/ Xxxxxxx Xxxxxxx Xxxxxx
------------------------------------
Allied Healthcare Group Limited
By: /s/ Xxxx Xxxxxx
------------------------------------
Allied Respiratory Limited
By: /s/ Xxxx Xxxxxx
------------------------------------
Balfor Medical Limited
By: /s/ Xxxx Xxxxxx
------------------------------------
Crystalglen Limited
By: /s/ Xxxx Xxxxxx
------------------------------------
A07131148/0.28/12 Dec 2006
123
Medigas Limited
By: /s/ Xxxx Xxxxxx
------------------------------------
Nightingale Nursing Bureau Limited
By: /s/ Xxxx Xxxxxx
------------------------------------
Omnicare Limited
By: /s/ Xxxx Xxxxxx
------------------------------------
Allied Staffing Professionals Limited
By: /s/ Xxxx Xxxxxx
------------------------------------
THE ORIGINAL GUARANTORS
Allied Healthcare Group Holdings Limited
By: /s/ Xxxxxxx Xxxxxxx Xxxxxx
------------------------------------
Allied Healthcare Holdings Limited
By: /s/ Xxxxxxx Xxxxxxx Xxxxxx
------------------------------------
Allied Healthcare Group Limited
By: /s/ Xxxx Xxxxxx
------------------------------------
Allied Respiratory Limited
By: /s/ Xxxx Xxxxxx
------------------------------------
Balfor Medical Limited
By: /s/ Xxxx Xxxxxx
------------------------------------
Crystalglen Limited
By: /s/ Xxxx Xxxxxx
------------------------------------
Medigas Limited
By: /s/ Xxxx Xxxxxx
------------------------------------
Nightingale Nursing Bureau Limited
By: /s/ Xxxx Xxxxxx
------------------------------------
Omnicare Limited
By: /s/ Xxxx Xxxxxx
------------------------------------
Allied Staffing Professionals Limited
By: /s/ Xxxx Xxxxxx
------------------------------------
A07131148/0.28/12 Dec 2006
124
THE ARRANGER
Barclays Capital
By: /s/ Xxxx Xxxxxxx
------------------------------------
Lloyds TSB Bank plc
By: /s/ Xxxxxxx Xxxxxx
------------------------------------
THE ORIGINAL LENDERS
Barclays Bank PLC
By: /s/ Xxxx Xxxxxxx
------------------------------------
Lloyds TSB Bank plc
By: /s/ Xxxxxxx Xxxxxx
------------------------------------
ANCILLARY LENDERS
Barclays Bank PLC
By: /s/ Xxxx Xxxxxxx
------------------------------------
Lloyds TSB Bank plc
By: /s/ Xxxxxxx Xxxxxx
------------------------------------
THE ID OBLIGORS
Allied Staffing Professionals Limited
By: /s/ Xxxx Xxxxxx
------------------------------------
Allied Healthcare Group Limited
By: /s/ Xxxx Xxxxxx
------------------------------------
THE ID BANK
Barclays Bank PLC
By: /s/ Xxxx Xxxxxxx
------------------------------------
Address: Barclays Asset & Sales Finance
Legal Services
Xxxxxxxxx Plaza
Xxxxxxxxx Way
A07131148/0.28/12 Dec 2006
000
Xxxxxxxxxxx
Xxxxxxxxx
XX00 0XX
Credit matters: Xxxx Xxxxxxx
Fax: x00 00 0000 0000
Other matters: Xxxxx Xxxxxxx
Fax: x00 0000 000000
THE AGENT
Barclays Bank PLC
By: /s/ Xxxx Brine
------------------------------------
Address: 5 Xxx Xxxxx Xxxxxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
Fax: x00 00 0000 0000
Attention: Global Loans Agency: Xxxxx Xxxxxxx Barclays Bank PLC
THE SECURITY AGENT
Barclays Bank PLC
By: /s/ Xxxx Brine
------------------------------------
Address: 5 Xxx Xxxxx Xxxxxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
Fax: x00 00 0000 0000
Attention: Global Loans Agency: Xxxxx Xxxxxxx
A07131148/0.28/12 Dec 2006
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