Exhibit 4.5
CONFORMED COPY
AGREEMENT
DATED 27TH January, 2000
CHF 1,500,000,000
REVOLVING CREDIT FACILITY
for
ADECCO SA
arranged by
BANK OF AMERICA INTERNATIONAL LIMITED
and
SOCIETE GENERALE
as Arrangers
BANK OF AMERICA INTERNATIONAL LIMITED
as Agent
XXXXX & XXXXX
London
BK:714754.5
INDEX
CLAUSE PAGE
1. Interpretation.................................................1
2. The Facilities................................................15
3. Purpose.......................................................17
4. Conditions Precedent..........................................17
5. Advances......................................................18
6. Repayment.....................................................19
7. Prepayment and Cancellation...................................19
8. Interest......................................................21
9. Optional Currencies...........................................23
10. Payments......................................................24
11. Taxes.........................................................26
12. Market Disruption.............................................27
13. Increased Costs...............................................28
14. Illegality....................................................29
15. Guarantee.....................................................30
16. Representations and Warranties................................32
17. Undertakings..................................................36
18. Default.......................................................41
19. The Agent and the Arrangers...................................45
20. Fees..........................................................51
21. Expenses......................................................52
22. Stamp Duties..................................................52
23. Indemnities...................................................53
24. Mitigation by the Banks.......................................54
25. Evidence and Calculations.....................................54
26. Amendments and Waivers........................................55
27. Changes to the Parties........................................56
28. Disclosure of Information.....................................59
29. Set-off.......................................................59
30. Pro Rata Sharing..............................................59
31. Vat...........................................................60
32. Severability..................................................61
33. Counterparts..................................................61
34. Notices.......................................................61
35. Language......................................................63
36. Jurisdiction..................................................63
37. Waiver of Immunity............................................64
38. Governing Law.................................................64
SCHEDULES
1. Banks and Commitments.........................................65
2. Conditions precedent documents................................67
3. Form of Request...............................................68
4. Form of Novation Certificate..................................69
5. Calculation of the Mandatory Cost.............................71
6. Schedule of Security Interests................................74
7. Form of Resignation Letter....................................77
SIGNATORIES............................................................78
THIS AGREEMENT is dated 27 January, 2000 between:-
(1) ADECCO SA (the "COMPANY") and FICOMEXA COORDINATION CENTER SA
("FICOMEXA") as borrowers (in this capacity the "BORROWERS");
(2) ADECCO SA as guarantor (in this capacity, the "GUARANTOR");
(3) BANK OF AMERICA INTERNATIONAL LIMITED and SOCIETE GENERALE as joint
arrangers (each an "ARRANGER" and together the "ARRANGERS");
(4) THE FINANCIAL INSTITUTIONS listed in Schedule 1 as banks (the "BANKS");
(5) BANK OF AMERICA INTERNATIONAL LIMITED as agent for the Finance Parties
(in this capacity the "Agent").
IT IS AGREED as follows:-
1. INTERPRETATION
1.1 DEFINITIONS
In this Agreement:-
" ADVANCE"
means a Tranche A Advance or a Tranche B Advance.
"AFFILIATE"
means a Subsidiary or a Holding Company of a 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 Optional Currency in the London foreign exchange market with
Swiss Francs at or about 11.00 a.m. on a particular day.
"APPROVED BANK"
means a financial institution which qualifies as a bank pursuant to the
laws of the jurisdiction of the place of its registered office,
provided that it has a genuine banking activity as per explanatory
notes no. S-02.128 (10.92) of the Swiss Federal Tax Administration.
"AVAILABILITY PERIOD"
means the Tranche A Availability Period and the Tranche B Availability
Period.
2
"BELGIAN RESERVATIONS"
means the reservations contained in paragraphs (a) to (k) of the
opinion provided pursuant to paragraph 7(b) of Schedule 2 to this
Agreement.
"BORROWERS' AGENT"
means Adecco SA or such other member of the Group as is nominated by
the Company with the previous consent of the Agent.
"BREAK COSTS"
means the amount (if any) by which:
(a) the interest which a Bank should have received for the period
from the date of receipt of all or any part of its
participation in an Advance to the last day of the current
Term in respect of that Advance, had the principal amount
received been paid on the last day of that Term;
exceeds:
(b) the amount which that Bank would be able to obtain by placing
an amount equal to the principal amount received by it on
deposit with a leading bank in the London or (in the case of
euros) Participating Member States' interbank market for a
period starting on the Business Day following receipt or
recovery and ending on the last day of the current Term.
"BUSINESS DAY"
means a day (other than a Saturday or a Sunday) on which banks are open
for general interbank business in London, Zurich and Brussels and:
(a) in relation to a payment date for an Optional Currency (other
than euros), the principal financial centre of a country of
that Optional Currency; and
(b) in relation to a payment day for euros, a TARGET Day.
"COMMITMENT"
means, in relation to a Bank, the aggregate of its Tranche A Commitment
and its Tranche B Commitment.
"CONSOLIDATED INTEREST EXPENSES"
means, in relation to any period, the aggregate, calculated on a
consolidated basis, of all interest, fees, commissions and other costs,
expenses or charges (including without limitation, the interest element
of any hire payments under Finance Leases) accruing due from members of
the Group during such a period in respect of Financial Indebtedness.
3
"DEFAULT"
means an Event of Default or an event which, with the giving of notice,
lapse of time, determination of materiality or fulfilment of any other
applicable condition (or any combination of the foregoing), would
constitute an Event of Default.
"DRAWDOWN DATE"
means the date for the making of the relevant Advance.
"EBIT"
means, in relation to any period, consolidated profits of the Group
from continuing operations before Consolidated Interest Expenses and
taxes on income and profits during that period.
"EBITDA"
means, in relation to any period, EBIT after adding back depreciation
and amortisation charged during that period.
"EURIBOR"
means in relation to any Advances in euros:
(a) the applicable Screen Rate; or
(b) if the applicable Screen Rate is not available for the
relevant period, 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 the leading banks
in the Participating Member States' interbank market,
at or about 11.00 a.m. Brussels time on the Rate Fixing Day for the
offering of deposits in euros for a period comparable to the relevant
Term.
"EURO", "EUROS" and "(EURO)"
means the single currency of the Participating Member States.
"EVENT OF DEFAULT"
means an event specified as such in Clause 18.1 (Events of Default).
"FACILITY"
means any of the facilities to draw Tranche A Advances or Tranche B
Advances referred to in sub-clause 2.1(a) and (b) (Facilities)
respectively.
4
"FACILITY OFFICE"
means the office(s) notified by a Bank to the Agent:-
(a) on or before the date it becomes a Bank; or
(b) by not less than five Business Days' notice,
as the office(s) through which it will perform all or any of its
obligations under this Agreement.
"FEE LETTER"
means the letter dated 24th November, 1999 between Bank of America
N.A., Bank of America Securities LLC, SG Investment Banking and the
Borrowers' Agent setting out the amount of various fees referred to in
Clause 20 (Fees) and any subsequent letter relating to any such fees.
"FINAL MATURITY DATE"
means the day which is 3 years and six months after the date of this
Agreement or if that date is not a Business Day, the preceding Business
Day.
"FINANCE DOCUMENT"
means this Agreement, the Fee Letter, a Novation Certificate, or any
other document designated as such by the Agent and the Borrowers'
Agent.
"FINANCE LEASE"
means a lease or hire purchase arrangement which constitutes a capital
lease under US GAAP.
"FINANCE PARTY"
means the Arrangers, a Bank, or the Agent.
"FINANCIAL INDEBTEDNESS"
means, in relation to any period, the aggregate of (but without
including any item more than once):
(a) all principal amounts outstanding under this Agreement and
other loan facilities;
(b) amounts raised by acceptance under any acceptance credit
facility;
(c) all monies raised under any note purchase facility or by the
issue of notes, bonds, debentures or other securities;
(d) rental payments under Finance Leases to the extent capitalised
under US GAAP;
5
(e) the amount of any liability in respect of any part of the
purchase price for any property or services the payment of
which is agreed to be deferred for a period in excess of 180
days, but excluding all Financial Indebtedness under this
paragraph (e) which in aggregate totals not more than
CHF25,000,000;
(f) amounts raised under any other transaction having the
commercial effect of a borrowing entered into by any person in
order to finance its operations or capital requirements; and
(g) the amounts raised pursuant to securitisation or other sales
of receivables by any member of the Group,
but excluding Indebtedness referred to in any of (a) to (g) above
outstanding to another member of the Group.
"FINANCIAL OFFICER"
means the Obligor's Chief Financial Officer, its Corporate Treasurer or
its Corporate Controller and in the case of Ficomexa any board member.
"1999 FINANCIAL STATEMENTS"
means (in the case of the Company) the audited consolidated financial
statements of the Group for the year ended 31st December, 1999 and (in
the case of each other Obligor) its unaudited financial statements for
the year ended 31st December, 1999, in either case delivered under
Clause 17.2.
"GROUP"
means the Company and its Subsidiaries from time to time.
"HOLDING COMPANY"
means, in relation to a person, an entity to which that person is a
Subsidiary.
"INDEBTEDNESS"
means any obligation (whether incurred as principal or as surety) for
the payment or repayment of money whether present or future, actual or
contingent.
"INFORMATION MEMORANDUM"
means the document concerning the Company which, at its request and on
its behalf, was prepared in relation to this transaction and
distributed by the Arrangers to selected banks in December, 1999.
6
"LIBOR"
means in relation to any Advance:-
(a) the applicable Screen Rate; or
(b) if no Screen Rate is available for the currency or period of
that Advance, the rates (rounded upward 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,
at or about 11.00 a.m. on the applicable Rate Fixing Day for the
offering of deposits in the currency of the relevant Advance for a
period comparable to its Term for that Advance.
"MAJORITY BANKS"
means, at any time, Banks:-
(a) whose participations in the Advances then outstanding
aggregate more than 662/3 per cent. of all the Advances then
outstanding; or
(b) if there are no Advances then outstanding, whose Commitments
then aggregate more than 662/3 per cent. of the Total
Commitments; or
(c) if there are no Advances then outstanding and the Total
Commitments have been reduced to nil, whose Commitments
aggregated more than 662/3 per cent. of the Total Commitments
immediately before the reduction.
"MANDATORY COST"
means the percentage rate per annum calculated by the Agent in
accordance with Schedule 5:
MARGIN"
means at any time the percentage rate per annum determined at such time
to be the Margin for Tranche A Advances or Tranche B Advances (as the
case may be) in accordance with Clause 8.5 (Calculation of Margin and
utilisation fee).
"MARGIN CERTIFICATE"
has the meaning given to that term in Clause 8.5(c) (Calculation of
Margin and utilisation fee).
"MATURITY DATE"
means in relation to an Advance, the last day of the Term of that
Advance.
7
"NET CONSOLIDATED FINANCIAL DEBT"
means at any time, the aggregate Financial Indebtedness, on a
consolidated basis, of the Group minus cash or cash equivalents
recognised under US GAAP held by any member of the Group at that time.
"NOVATION CERTIFICATE"
has the meaning given to it in Clause 27.3 (Procedure for novations).
"OBLIGOR"
means a Borrower or the Guarantor.
"OLSTEN"
means Olsten Corporation, Melville (NY) a Delaware corporation.
"OPTIONAL CURRENCY"
means:
(a) euros; and
(b) any currency (other than euros and Swiss Francs) which for the
time being is freely transferable and convertible into Swiss
Francs.
"ORIGINAL FINANCIAL STATEMENTS"
means the audited financial statements of the Group for the financial
year ended 31st December, 1998.
"ORIGINAL SWISS FRANC AMOUNT"
in relation to an Advance, means:-
(a) if that Advance is denominated in Swiss Francs, the amount of
that Advance; or
(b) if that Advance is denominated in an Optional Currency, the
equivalent in Swiss Francs of the amount of that Advance at
the Agent's Spot Rate of Exchange three Business Days before
its Drawdown Date.
"PARTICIPATING MEMBER STATE"
means a member state of the European Communities that adopts the euro
as its currency in accordance with legislation of the European Union
relating to Economic and Monetary Union.
8
"PARTY"
means a party to this Agreement.
"PERMITTED SECURITY INTEREST"
means any Security Interest:
(a) referred to in Schedule 6 and any other Security Interest
created or outstanding with the prior written consent of the
Majority Banks provided that, unless permitted by any other
exception below, the aggregate principal amount secured by
such Security Interest will not be increased without such
further consent;
(b) that attaches to receivables, the underlying contract
generating such receivables, the collections in respect
thereof and the benefit of any insurances covering such
contracts, pursuant to a securitisation or sale of receivables
in respect of which an amount at least equal to the sale
proceeds of such receivables is treated as Financial
Indebtedness for the purpose of this Agreement;
(c) over receivables of any one or more members of the Group in a
maximum aggregate amount of the greater of (i) CHF100,000,000
(or its equivalent in other currencies) and (ii) 5 per cent.
of outstanding gross receivables as required to be included in
the Company's consolidated financial statements to secure
Financial Indebtedness incurred by members of the Group;
(d) arising solely by operation of law and either for so long as
it remains unenforceable or otherwise is discharged within 30
days, or arising by virtue of a banker's right of set-off or
combination of accounts arising by operation of law or any
rights of set-off arising in the normal course of business and
the aggregate amount of which is not material or netting
arrangements arising in the ordinary course of banking
business for cash management purposes, whether arising by
operation of law or contract;
(e) over any security deposits required in respect of leased
premises;
(f) arising under any retention of title arrangements entered into
in the ordinary course of trading;
(g) over goods or documents of title to goods arising in the
ordinary course of documentary credit transactions;
(h) on assets acquired after the date of this Agreement, or on
assets of a body corporate which becomes a Subsidiary of the
Company by acquisition after the date of this Agreement,
provided that:
(i) any such Security Interest is in existence prior to
such acquisition and is not created in contemplation
of such acquisition; and
(ii) the amounts secured by such Security Interest does
not exceed, at any time, the amount secured by it as
at the date of acquisition or agreed to be secured
9
by it (in accordance with the original terms on which
such Security Interest was created) as at the date of
acquisition;
(i) over any assets to secure Indebtedness of any member of the
Group where the lender has no right of recovery of such
Indebtedness against the general assets and undertaking of
such member of the Group but has a limited right of recourse
only against the asset acquired with the proceeds of such
Indebtedness;
(j) created in favour of a plaintiff or defendant in any action,
or the court or tribunal before which such action is brought,
as security for costs or expenses where any member of the
Group is prosecuting or defending such action in the BONA FIDE
interests of that member and any other member of the Group;
(k) pursuant to any order of attachment, distraint, garnishee
order or injunction restraining disposal of assets or similar
legal process arising in connection with legal proceedings;
(l) created or outstanding on or over any assets of any member of
the Group provided that the aggregate principal amount so
secured under this paragraph (l) shall not at any time exceed
CHF50,000,000 or its equivalent in other currencies;
(m) created pursuant to any arrangements to satisfy the mandatory
requirements of a government or governmental agency applicable
to the licensing or regulation of employment agencies or
staffing services businesses; and
(n) securing Indebtedness incurred to refinance other Indebtedness
permitted to be secured under paragraph (a) to (l) above
inclusive or this paragraph (n) provided that the aggregate
principal amount of the Indebtedness secured by such Security
Interest is not increased and such Security Interest does not
extend to any assets other than those which are subject to the
Security Interest securing the refinanced Indebtedness.
"PRINCIPAL SUBSIDIARY"
means each of Adecco Career Staff Limited (Japan), Adecco Employment
Services Inc, Adecco Travail Temporaire SA, Adecco UK Limited and Adia
France SA, and any operating Subsidiary of the Company whose net
revenues, at any time, represent 5% or more of the consolidated net
revenues of the Company's Group at any time, and for this purpose:
(a) the net revenues of any such Subsidiary shall be ascertained
by reference to:
(i) the financial statements of such Subsidiary at the
date to which the last audited consolidated financial
statements of the Group have been prepared; or
(ii) if such body corporate becomes a Subsidiary of the
Company after that date, the latest financial
statements of such Subsidiary adjusted to take into
account subsequent acquisitions and disposals or
other changes in circumstances;
10
(b) the consolidated net revenues of the Group up to the date of
delivery of the 1999 Financial Statements shall be ascertained
by reference to the Original Financial Statements and,
thereafter, shall be ascertained by reference to the latest
audited consolidated financial statements of the Company
delivered pursuant to Clause 17.2; and
(c) once a body corporate has become a Principal Subsidiary, it
shall be considered to be one until it has been demonstrated
to the reasonable satisfaction of the Agent that it has ceased
to be a Principal Subsidiary, a written report from the
Borrower's auditors to this effect being sufficient for this
purpose,
Provided that the Agent shall be entitled to seek information from the
Company on the consolidated net revenues of any Subsidiary of the
Company and, if following review thereof, the Agent is reasonably of
the opinion that a particular Subsidiary is a Principal Subsidiary as
defined above, such Subsidiary shall thenceforth be a Principal
Subsidiary.
"RATE FIXING DAY"
means:-
(a) the second Business Day before the first day of a Term of an
Advance; or
(b) in the case of an Advance in euros, the second TARGET Day
before the first day of a Term for that Advance,
or, in each case, such other day on which it is market practice in the
relevant interbank market for leading banks to give quotations for
deposits in the relevant currency for delivery on the first day of the
relevant Term of the Advance, as determined by the Agent.
"REFERENCE BANKS"
means, subject to Clause 27.5 (Reference Banks), Bank of America, N.A.
Societe Generale, National Westminster Bank Plc and Westdeutsche
Landesbank Girozentrale Succursale de Paris.
"REQUEST"
means a request made by a Borrower for an Advance, substantially in
the form of Schedule 3.
"REQUESTED AMOUNT"
means the Original Swiss Franc Amount of an Advance requested in a
Request.
"RESERVATIONS"
means the principle that equitable remedies are remedies which may be
granted or refused at the discretion of the court, the limitation of
enforcement by laws relating to bankruptcy, insolvency, liquidation,
reorganisation, court schemes, moratoria, administration and other laws
generally affecting the rights of creditors, the time barring of claims
under the Limitation Acts, the possibility that an undertaking to
assume liability for or to indemnify a
11
person against non-payment of UK stamp duty may be void, defences of
set-off or counterclaim and similar principles, rights and defences
under the laws of any jurisdiction in which relevant obligations may
have to be performed.
"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 European Union for the
relevant period,
displayed on Telerate 3750 in the case of LIBOR and Telerate 248 in the
case of EURIBOR. 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 Banks.
"SECURITY INTEREST"
means any mortgage, pledge, lien, charge, assignment, hypothecation or
security interest or any other agreement or arrangement having the
effect of conferring security or any other type of preferential
arrangement (including title transfer and retention arrangements and
arrangements whereby sums deposited with a financial institution are
conditioned as to maturity so as to achieve quasi-security through
set-off) having a similar effect.
"SIGNING DATE"
means the date of this Agreement.
"STERLING" or "L"
means the lawful currency for the time being of the United Kingdom.
"SUBSIDIARY"
means, in relation to a company or corporation, any company or
corporation:
(a) which is controlled, directly or indirectly, by the
first-mentioned company or corporation;
(b) more than half the issued share capital of which is
beneficially owned, directly or indirectly, by the first
mentioned company or corporation; or
(c) which is a subsidiary of another subsidiary of the
first-mentioned company or corporation
12
and, for these purposes, a company or corporation shall be treated as
being controlled by another if that other company or corporation is
able to direct its affairs and/or to control the composition of its
board of directors or equivalent body.
"SWISS FRANC" or "CHF"
means the lawful currency for the time being of Switzerland.
"SWISS RESERVATIONS"
means the reservations contained in paragraphs (a) to (f) of the
opinion provided pursuant to paragraph 7(a) of Schedule 2 of this
Agreement.
"TARGET DAY"
means a day on which the Trans-European Automated Real-time Gross
settlement Express Transfer (TARGET) System is operating.
"TAX(ES)"
includes any present or future tax, levy, impost, duty, charge, fee,
deduction or withholding of any similar nature (including any penalty
or interest payable in connection with any failure to pay or any delay
in paying any of the same).
"TERM"
means the period selected by a Borrower in a Request for which the
relevant Advance is to be outstanding.
"TOTAL COMMITMENTS"
means the aggregate of the Tranche A Total Commitments and Tranche B
Total Commitments (being CHF 1,500,000,000 at the date of this
Agreement).
"TRANCHE A ADVANCE"
means a cash advance made by a Bank under Tranche A.
TRANCHE A AVAILABILITY PERIOD"
means the period from and including the Signing Date up to and
including the Final Maturity Date.
"TRANCHE A COMMITMENT"
means:
(a) in respect of a Bank which is a Bank on the Signing Date, the
amount in Swiss Francs set opposite the name of that Bank in
Column 1 of Schedule 1 and the amount of any
13
other Bank's Tranche A Commitment acquired by it under Clause
27 (Changes to the Parties); or
(b) in relation to a Bank which becomes a Bank after the Signing
Date, the amount of any other Bank's Tranche A Commitment
acquired by it under Clause 27 (Changes to the Parties),
to the extent not transferred, cancelled or reduced under this
Agreement.
"TRANCHE A TOTAL COMMITMENTS"
means the aggregate for the time being of the Tranche A Commitments,
being CHF 1,000,000,000 at the Signing Date.
"TRANCHE B ADVANCE"
means a cash advance made by a Bank under Tranche B.
"TRANCHE B AVAILABILITY PERIOD"
means the period from and including the Signing Date up to and
including the day falling 364 days after the Signing Date, or, if that
date is not a Business Day, the preceding Business Day.
"TRANCHE B COMMITMENT"
means:
(a) in respect of a Bank which is a Bank on the Signing Date, the
amount in Swiss Francs set opposite the name of that Bank in
Column 2 of Schedule 1 and the amount of any other Bank's
Tranche B Commitment acquired by it under Clause 27 (Changes
to the Parties); or
(b) in relation to a Bank which becomes a Bank after the Signing
Date, the amount of any other Bank's Tranche B Commitment
acquired by it under Clause 27 (Changes to the Parties),
to the extent not transferred, cancelled or reduced under this
Agreement.
"TRANCHE B TOTAL COMMITMENTS"
means the aggregate for the time being of the Tranche B Commitments,
being CHF 500,000,000 at the Signing Date.
"US GAAP"
means generally accepted accounting principles in the United States of
America from time to time.
14
"VAT"
means value added tax as provided for in the Value Added Tax Xxx 0000
and any other tax of a similar nature.
"WINDING UP"
of a person includes the reorganisation, administration, dissolution or
liquidation of that person, and any equivalent or analogous procedure
under the law of any jurisdiction in which that person is incorporated,
domiciled or resident or carries on business or has assets.
1.2 CONSTRUCTION
(a) In this Agreement, unless the contrary intention appears, a reference
to:-
(i) the "AGENT" shall be construed so as to include its and any
subsequent successors, transferees and assigns in accordance
with their respective interests;
an "AMENDMENT" includes a supplement, novation or re-enactment
and "AMENDED" is to be construed accordingly;
"ASSETS" includes present and future properties, revenues and
rights of every description;
an "AUTHORIZATION" includes an authorization, consent,
approval, resolution, licence, exemption, filing, registration
or notarization;
a "BANK" shall be construed so as to include its and any
subsequent successors, transferees and assigns in accordance
with their respective interests;
"CONTROL" means the power to direct the management and
policies of an entity, whether through the ownership of voting
capital, by contract or otherwise;
a "MATERIAL ADVERSE EFFECT" means a material adverse effect in
the business or financial condition of the Company or any
member of the Group which would be likely to have a material
and adverse effect on the ability of each Obligor to meet its
obligations under any of the Finance Documents.
a "MONTH" is a reference to a period starting on one day in a
calendar month and ending on the numerically corresponding day
in the next calendar month, except that:-
(1) if there is no numerically corresponding day in the
month in which that period ends, that period shall
end on the last Business Day in that calendar month;
or
(2) if a Term commences on the last Business Day of a
calendar month, that Term shall end on the last
Business Day in the calendar month in which it is to
end;
15
"OUTSTANDING" in relation to a Default or Event of Default
means that the Default or Event of Default has not been
remedied or waived;
a "PERSON" includes any individual, Obligor, unincorporated
association or body of persons (including a partnership, joint
venture or consortium), government, state, agency,
international organisation or other entity;
a "REGULATION" includes any regulation, rule, official
directive, request or guideline (whether or not having the
force of law) of any governmental, inter-governmental or
supranational body, agency, department or regulatory,
self-regulatory or other authority or organisation;
a "SCREEN" or "PAGE" on a Screen in the definition of "LIBOR"
and "EURIBOR" includes any replacement screen or page
nominated by the British Bankers Association as the
information vendor for the purpose of displaying British
Bankers Association Interest Settlement Rates for deposits in
various currencies;
(ii) a provision of law is a reference to that provision as amended
or re-enacted;
(iii) a Clause or a Schedule is a reference to a clause of or a
schedule to this Agreement;
(iv) a person includes its successors, transferees and assigns;
(v) a Finance Document or another document is a reference to that
Finance Document or other document as amended; and
(vi) a time of day is a reference to London time.
(b) Unless the contrary intention 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.
(c) The index to and the headings in this Agreement are for convenience
only and are to be ignored in construing this Agreement.
2. THE FACILITIES
2.1 FACILITIES
The Xxxxx xxxxx to the Borrowers the following facilities:
(a) a committed CHF1,000,000,000 multicurrency revolving credit
facility, to be designated as TRANCHE A, under which the Banks
will, when requested by a Borrower, make cash advances in
Swiss Francs or Optional Currencies to that Borrower on a
revolving basis during the Tranche A Availability Period;
(b) a committed CHF500,000,000 multicurrency revolving 364 day
facility to be designated as TRANCHE B, under which the Banks
will, when requested by a Borrower, make cash advances in
Swiss Francs or Optional Currencies to that Borrower on a
revolving basis during the Tranche B Availability Period;
16
2.2 OVERALL FACILITY LIMITS
(a) The aggregate Original Swiss Franc Amount of all outstanding Advances:
(i) under Tranche A, shall not at any time exceed the Tranche A
Total Commitments at that time;
(ii) under Tranche B shall not at any time exceed the Tranche B
Total Commitments at that time;
(iii) under both Facilities, shall not at any time exceed the Total
Commitments at that time.
2.3 NATURE OF A FINANCE PARTY'S RIGHTS AND OBLIGATIONS
(a) The obligations of a Finance Party under the Finance Documents are
several. Failure of a Finance Party to carry out those obligations does
not relieve any other Party of its obligations under the Finance
Documents. No Finance Party is responsible for the obligations of any
other Finance Party under the Finance Documents.
(b) The rights of a Finance Party under the Finance Documents are divided
rights. A Finance Party may, except as otherwise stated in the Finance
Documents, separately enforce those rights.
2.4 CHANGE OF CURRENCY
(a) Subject always to Clause 10.4 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 and
after consultation with the Company; and
(ii) any translation from one currency or currency unit to another
shall be at the official conversion rate 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 be
amended to the extent the Agent acting reasonably and after
consultation with the Company specifies to be necessary to reflect the
change in currency and to put the Banks in the same position, so far as
possible, that they would have been in if no change in currency had
occurred.
2.5 BORROWERS' AGENT
Each Obligor irrevocably authorises and instructs the Borrowers' Agent
to give and receive as agent on its behalf all notices (including
Requests) and sign all documents in connection with the Finance
Documents on its behalf and take such other action as may be necessary
or desirable under or in connection with the Finance Documents and
confirms that it will be
17
bound by any action taken by the Borrowers' Agent under or in
connection with the Finance Documents.
2.6 ACTIONS OF BORROWERS' AGENT
The respective liabilities of each of the Obligors under the Finance
Documents shall not be in any way affected by:
(a) any irregularity (or purported irregularity) in any act done
by or any failure (or purported failure) by the Borrowers'
Agent;
(b) the Borrowers' Agent acting (or purporting to act) in any
respect outside any authority conferred upon it by any
Obligor; or
(c) the failure (or purported failure) by or inability (or purported
inability) of the Borrowers' Agent to inform any Obligor of receipt by
it of any notification under this Agreement
3. PURPOSE
Each Advance will be applied:
(i) in the case of Tranche A, for general corporate purposes; and
(ii) in the case of Tranche B for refinancing existing corporate
facilities and refinancing existing acquisition facilities.
Without affecting the obligations of any Obligor in any way, no Bank is
bound to monitor or verify the application of any Advance.
4. CONDITIONS PRECEDENT
4.1 DOCUMENTARY CONDITIONS PRECEDENT
Neither Borrower may deliver a Request until the Agent has notified the
Company and the Banks that it has received all of the documents set out
in Schedule 2 in form and substance satisfactory to the Agent.
4.2 FURTHER CONDITIONS PRECEDENT
The obligations of each Bank to participate in any Advance are subject
to the further conditions precedent that:-
(a) on both the date of the Request and the Drawdown Date:-
(i) the representations and warranties in Clause 16
(Representations and warranties) to be repeated on
those dates are correct and will be correct
immediately after the Advance is made; and
(ii) no Default is outstanding or is likely to result from
the Advance; and
18
(b) the making of the Advance would not cause Clause 2.1
(Facilities) and Clause 2.2 (Overall facility limits) to be
contravened.
5. ADVANCES
5.1 RECEIPT OF REQUESTS
The Borrowers may borrow Advances under the Facility if the Agent
receives, not later than 11.00 a.m. three Business Days before the
proposed Drawdown Date, a duly completed Request. Each
Request is irrevocable.
5.2 COMPLETION OF REQUESTS FOR ADVANCES
A Request will not be regarded as having been duly completed unless:-
(a) the Drawdown Date is a Business Day falling during the
Availability Period;
(b) if the currency selected is Swiss Francs, the amount of the
Advance is:-
(i) a minimum of CHF20,000,000 in integral multiples of
CHF5,000,000;
(ii) the balance of the undrawn Total Commitments (taken
into account as repaid, Advances due to be repaid on
or before the proposed Drawdown Date); or
(iii) such other amount as the Agent may agree;
(c) if the currency selected is an Optional Currency, the amount
of the Advance is:-
(i) an integral multiple of 5,000,000 of the largest
currency unit of that Optional Currency but at least
the equivalent of CHF20,000,000;
(ii) the balance of the undrawn Total Commitments (taken
into account as repaid, Advances due to be repaid on
or before the proposed Drawdown Date); or
(iii) such other amount as the Agent may agree;
(d) the amount selected under paragraph (b) or (c) above does not
cause Clause 2.1 (Facility) and Clause 2.2 (Overall facility
limits) to be contravened;
(e) the currency selected complies with Clause 9 (Optional
Currencies);
(f) only one Term for each separate Advance is specified which:
(i) in respect of Tranche A Advances does not overrun the
Tranche A Availability Period and in respect of
Tranche B Advances does not overrun the Tranche B
Availability Period; and
(ii) is a period of one, two, three or six months (or such
other period as all the Banks may previously have
agreed for the purposes of such Advances); and
19
(g) the payment instructions comply with Clause 10 (Payments).
Each Request must specify one Advance only, but a Borrower may, subject
to the other terms of this Agreement, deliver more than one Request on
any one day. Unless otherwise agreed by the Agent, no more than ten
Advances and five different currencies may be outstanding at any time.
An Advance made by a Bank under clause 9.2(ii)(1) shall not be taken
into account as an Advance in calculating the maximum number of
Advances.
5.3 NOTIFICATION OF THE BANKS
The Agent shall promptly notify each Bank no later than the close of
business three Business Days before the proposed Drawdown Date of the
details of the requested Advance and the amount of its participation in
the Advance.
5.4 PAYMENT PROCEEDS
Subject to the terms of this Agreement, each Bank shall make its
participation in the Advance available to the Agent for the relevant
Borrower in the currency in which it is to be borrowed, on the relevant
Drawdown Date.
5.5 AMOUNT OF OPTIONAL CURRENCIES
If an Advance is to be made in an Optional Currency, the amount of the
Advance will be determined by converting into that Optional Currency,
the Original Swiss Franc Amount of that Advance on the basis of the
Agent's Spot Rate of Exchange on the day which is three Business Days
prior to the proposed Drawdown Date.
6. REPAYMENT
The Borrowers shall repay each Advance in full on its Maturity Date to
the Agent for distribution to the Banks, but since the Facility is
available on a revolving basis, amounts repaid may be reborrowed
subject to the terms of this Agreement. No Advances may be outstanding
under Tranche A after the Final Maturity Date and no Advances may be
outstanding under Tranche B after the last day of the Tranche B
Availability Period.
7. PREPAYMENT AND CANCELLATION
7.1 AUTOMATIC CANCELLATION
The Tranche A Commitment of each Bank shall be automatically cancelled
at the close of business in London on the Final Maturity Date. The
Tranche B Commitment of each Bank shall be automatically cancelled at
the close of business in London on the last day of the Tranche B
Availability Period.
7.2 VOLUNTARY CANCELLATION
The Borrowers' Agent may, by giving not less than 30 days' prior
written notice (or such shorter period as the Majority Banks may agree)
to the Agent, cancel the unutilised portion of the Total Commitments in
whole or in part (but, if in part, in a minimum of CHF20,000,000 and an
integral multiple of CHF5,000,000). Any cancellation in part shall be
applied against
20
the Commitment of each Bank pro rata and against Tranche A or Tranche B
in such proportions as may be specified by the Borrower's Agent in the
notice of cancellation.
7.3 VOLUNTARY PREPAYMENT
(a) The Borrower's Agent may, by giving not less than 30 days' prior
written notice (or such shorter period as the Majority Banks may agree)
to the Agent, prepay the whole or any part of any Advance (but, if in
part, in a minimum Original Swiss Franc Amount of CHF20,000,000 and an
integral multiple of CHF5,000,000 or, if in an Optional Currency, in an
integral multiple of 5,000,000 of the largest unit of that Optional
Currency).
(b) Any voluntary prepayment made under paragraph (a) above will:
(i) be applied against Tranche A or Tranche B in such proportions
as may be specified by the Borrowers' Agent in the notice of
prepayment; and
(ii) be applied against all the Advances in the relevant Tranche(s)
pro rata (or against such Advances in the relevant Tranche(s)
as the Borrowers' Agent may designate in the notice of
prepayment and pro rata between such Advances).
7.4 ADDITIONAL RIGHT OF PREPAYMENT AND CANCELLATION
If any Borrower is required to pay or is notified by any Bank in
writing that it will be required to pay any amount to a Bank under
Clause 11 (Taxes) or Clause 13 (Increased Costs), or if circumstances
exist such that a Borrower will be required to pay any amount to a Bank
under Clause 11 (Taxes) or Clause 13 (Increased Costs), without
prejudice to the obligations of any Obligor under those Clauses, the
Borrowers' Agent may, whilst the circumstances giving rise or which
will give rise to the requirement to continue, serve a notice of
prepayment or cancellation on that Bank through the Agent. On the date
falling five Business Days after the date of service of the notice:
(a) each Borrower shall prepay that Bank's participation in all
the Advances; and
(b) the Bank's Tranche A Commitment and Tranche B Commitment shall
be permanently cancelled.
7.5 MISCELLANEOUS PROVISIONS
(a) Any notice of prepayment and/or cancellation under this Agreement is
irrevocable. The Agent shall notify the Banks promptly of receipt of
any such notice.
(b) All prepayments under this Agreement shall be made together with
accrued interest on the amount prepaid and, together with any Break
Costs but otherwise without premium or penalty.
(c) No prepayment or cancellation is permitted except in accordance with
the express terms of this Agreement.
(d) No amount of the Total Commitments cancelled under this Agreement may
subsequently be reinstated.
21
8. INTEREST
8.1 INTEREST RATE
The rate of interest on each Tranche A Advance and Tranche B Advance
for its Term is the rate per annum determined by the Agent to be the
aggregate of:
(a) the applicable Margin;
(b) (i) LIBOR (in the case of an advance denominated in a
currency other than euros);
(ii) EURIBOR (in the case of an advance denominated in
euros); and
(c) the Mandatory Cost.
8.2 DUE DATES
Except as otherwise provided in this Agreement, accrued interest on
each Advance is payable by the relevant Borrower in the case of a
Tranche A Advance or a Tranche B Advance, on its Maturity Date and
also, if the Term of the Advance is longer than six months, on the
dates falling at six-monthly intervals after its Drawdown Date for so
long as the Term is outstanding.
8.3 DEFAULT INTEREST
(a) If a Borrower fails to pay any amount payable by it under the Finance
Documents, it shall, forthwith on demand by the Agent, pay interest on
the overdue amount from the due date up to the date of actual payment,
as well after as before judgement, at a rate (the "DEFAULT RATE")
determined by the Agent to be one per cent. per annum above the rate
which would have been payable if the overdue amount had, during the
period of non-payment, constituted an Advance at the highest Margin
shown in Clause 8.5 (Calculation of Margin and utilisation fee) in the
currency of the overdue amount for such successive Term of such
duration as the Agent may determine (each a "DESIGNATED TERM").
(b) The default rate will be determined by the Agent on each Business Day
or the first day of, or two Business Days before the first day of, the
relevant Designated Term, as appropriate.
(c) If the Agent determines that deposits in the currency of the overdue
amount are not at the relevant time being made available by the
Reference Banks to leading banks in the London interbank market, the
default rate will be determined by reference to the cost of funds to
the Agent from whatever sources it may select.
(d) Default interest will be compounded at the end of each Designated Term.
8.4 NOTIFICATION OF RATE OF INTEREST
The Agent shall promptly notify each relevant Party of the
determination of a rate of interest under this Agreement.
22
8.5 CALCULATION OF MARGIN AND UTILISATION FEE
(a) Subject to the following provisions of this Clause, the Margin for a
Tranche A Advance and a Tranche B Advance will be 0.475 per cent. per
annum, and the utilisation fee referred to in Clause 20.4 (Utilisation
fee) on Tranche A and Tranche B will be 0.025 per cent. per annum.
(b) From and including the first quarter which includes the results of
Olsten as a Subsidiary for a full quarter for the purposes of Clause
8.5 only, the Margin for all Advances and the utilisation fee will, if
necessary, be adjusted (upwards or downwards) as provided for in
paragraph (d) and (e) below, to the percentage rates per annum
specified in Columns 2 and Columns 3 respectively set opposite the
range into which the Net Consolidated Financial Debt to EBITDA ratio
falls, as shown in the Margin Certificate delivered under Clause 17.2
(Financial information).
(c) For the purposes of this Clause 8.5, a "MARGIN CERTIFICATE" means a
certificate, signed by one of the Company's Financial Officers relating
to the end of each quarter of the Group's financial years and by the
auditors (if so required by the Agent or if not so required, by one of
the Company's Financial Officers) in respect of a Margin Certificate
relating to the end of each of the Group's financial years confirming
the ratio of Net Consolidated Financial Debt to EBITDA ratio for the
relevant period. For the purposes of calculating EBITDA at the end of
any given quarter, the EBITDA for the four consecutive quarters of the
Group's financial year ending at the end of that first mentioned
quarter will be used, provided that this reference to four consecutive
quarters will not apply until four consecutive quarters from 31st
December, 1999 shall have elapsed, up until which the actual number of
such quarters will be taken and the ratio used for the purposes of
calculating the Margin will be adjusted accordingly to take account of
the shorter period for which EBITDA is computed.
------------------------------------ ------------------------------------ ---------------------------
(d) COLUMN 1 COLUMN 2 COLUMN 3
------------------------------------ ------------------------------------ ---------------------------
RANGE XX XXXXXXX X/XXXXXXX X XXXXXXX X/XXXXXXX X
NET CONSOLIDATED FINANCIAL DEBT TO MARGIN (% P.A.) UTILISATION FEE (% P.A.)
EBITDA RATIOS
------------------------------------ ------------------------------------ ---------------------------
less than 2:1 0.325 0.025
------------------------------------ ------------------------------------ ---------------------------
equal to or more than 2:1 and less 0.375 0.025
than 2.5:1
------------------------------------ ------------------------------------ ---------------------------
equal to or more than 2.5:1 and 0.475 0.025
less than 3:1
------------------------------------ ------------------------------------ ---------------------------
equal to or more than 3:1 and less 0.60 0.050
than 3.5:1
------------------------------------ ------------------------------------ ---------------------------
(e) Any adjustment to the Margin and the utilisation fee (whether upwards
or downwards) in accordance with paragraphs (b) and (d) above will only
apply to the Term of any Advance following receipt of the consolidated
financial statements of the Group from and including the period which
includes the results of Olsten as a subsidiary for a full quarter. For
the purposes of this Clause 8.5, the consolidated financial statements
of the Group will only include the results for Olsten from and
including the date on which Olsten becomes a Subsidiary.
23
(f) Notwithstanding the provisions of (a) to (e) above, if an Event of
Default occurs the applicable Margin and utilisation fee shall with
immediate effect be 0.60 per cent. per annum and 0.050 per cent. per
annum respectively for as long as an Event of Default continues.
8.6 OTHER ADJUSTMENTS
The Agent and Borrower may enter into such other arrangements as they
may agree for the consolidation and/or splitting of Advances made to a
Borrower.
9. OPTIONAL CURRENCIES
9.1 SELECTION
(a) A Borrower shall select the currency of an Advance in the relevant
Request.
(b) The currency of each Advance must be Swiss Francs or an Optional
Currency.
(c) No Borrower may choose a currency if as a result the Advances would be
denominated at any one time in more than five currencies.
(d) The Agent shall notify each Bank of the currency and the Original Swiss
Franc Amount of each Advance and the applicable Agent's Spot Rate of
Exchange promptly after they are ascertained.
9.2 REVOCATION OF CURRENCY
If before 9.30 a.m. on any Rate Fixing Day, the Agent receives notice
from a Bank that:-
(a) it is impracticable for the Bank to fund its participation in
the relevant Advance in the relevant Optional Currency during
its Term in the ordinary course of business in the London or
(in the case of euros) Participating Member States' interbank
market; and/or
(b) the compliance with its obligations to participate in an
Advance in the proposed Optional Currency would contravene any
law or regulation applicable to it,
the Agent shall give notice to the relevant Borrower and to the Banks
to that effect before 11.00 a.m. Brussels time on that day. In this
event:-
(i) the relevant Borrower and the Banks may agree that the
drawdown will not be made; or
(ii) in the absence of agreement:-
(1) that Bank's participation in the Advance (or, if more
than one Bank is similarly affected, those Bank's
participations in the Advance) shall be treated as a
separate Advance denominated in Swiss Francs during
the relevant Term; and
24
(2) in the definition of "LIBOR" and "EURIBOR" (insofar
as it applies to that Advance) in Clause 1.1
(Definitions):
(A) there shall be substituted for the time
"11.00 a.m." the time "1.00 p.m."; and
(B) paragraph (b) of the definition of LIBOR and
EURIBOR shall apply.
10. PAYMENTS
10.1 PLACE
All payments by a Borrower or a Bank under the Finance Documents shall
be made to the Agent to its account at such office or bank in the
principal financial centre of a country of the relevant currency or in
the case of euros, in the principal financial centre of a Participating
Member State or in London as it may notify to that Borrower or Bank for
this purpose. Notwithstanding the above, all payments by the Company to
the Arrangers under Clause 21 (Expenses) shall be made direct to the
Arrangers in the manner agreed by the Arrangers and the Borrowers'
Agent.
10.2 FUNDS
Payments under the Finance Documents to the Agent shall be made for
value on the due date at such times and in such funds as the Agent may
specify to the Party concerned as being customary at the time for the
settlement of transactions in the relevant currency in the place for
payment.
10.3 DISTRIBUTION
(a) Each payment received by the Agent under the Finance Documents for
another Party shall, subject to paragraphs (b) and (c) below, be made
available by the Agent to that Party by payment (on the date and in the
currency and funds of receipt) to its account with such office or bank
in the principal financial centre of a country of the relevant currency
or in the case of euros, in the principal financial centre of a
Participating Member State or in London as it may notify to the Agent
for this purpose by not less than five Business Days' prior notice.
(b) The Agent may apply any amount received by it for a Borrower in or
towards payment (on the date and in the currency and funds of receipt)
of any amount due from a Borrower under the Finance Documents or in or
towards the purchase of any amount of any currency to be so applied.
(c) Where a sum is to be paid to the Agent under the Finance Documents for
another Party, the Agent is not obliged to pay that sum to that Party
until it has established that it has actually received that sum. The
Agent may, however, assume that the sum has been paid to it in
accordance with this Agreement, and, in reliance on that assumption,
make available to that Party a corresponding amount. If the sum has not
been made available but the Agent has paid a corresponding amount to
another Party, that Party shall forthwith on demand by the Agent refund
the corresponding amount together with interest on that amount from the
date of payment to the date of receipt, calculated at a rate determined
by the Agent to reflect its cost of funds.
25
10.4 CURRENCY
(a) A repayment or prepayment of an Advance is payable in the currency in
which the Advance is denominated on its due date.
(b) Interest is payable in the currency in which the relevant amount in
respect of which it is payable is denominated.
(c) Amounts payable in respect of costs, expenses, taxes and the like are
payable in the currency in which they are incurred.
(d) Any other amount payable under the Finance Documents is, except as
otherwise provided in this Agreement, payable in Swiss Francs.
10.5 SET-OFF AND COUNTERCLAIM
All payments made by a Borrower under the Finance Documents shall be
made without set-off or counterclaim.
10.6 NON-BUSINESS DAYS
(a) If a payment under the Finance Documents is due on a day which is not a
Business Day, the due date for that payment shall instead be the next
Business Day in the same calendar month (if there is one) or the
preceding Business Day (if there is not).
(b) During any extension of the due date for payment of any principal under
this Agreement interest is payable on that principal at the rate
payable on the original due date.
10.7 PARTIAL PAYMENTS
(a) If the Agent receives a payment insufficient to discharge all the
amounts then due and payable by the Borrowers under the Finance
Documents, the Agent shall apply that payment towards the obligations
of the Borrowers 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 under the Finance Documents;
(ii) SECONDLY, in or towards payment pro rata of any accrued
interest due but unpaid under this Agreement;
(iii) THIRDLY, in or towards payment pro rata of any principal due
but unpaid under this Agreement; 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 all the Banks, vary the order set
out in sub-paragraphs (a)(ii) to (iv) above.
26
(c) Paragraphs (a) and (b) above will override any appropriation made by a
Borrower.
11. TAXES
11.1 GROSS UP
(a) All payments by an Obligor under the Finance Documents shall be made in
full without any deduction or withholding whatsoever and free and clear
of and without any deduction or withholding for or on account of any
Taxes, except to the extent that the Obligor is required by law to make
payment subject to any Taxes. Subject to paragraph (b) below, if any
Taxes or amounts in respect of Taxes must be deducted or withheld, or
any other deductions or withholdings must be made, from any amounts
payable or paid by an Obligor, or paid or payable by the Agent to a
Finance Party, under the Finance Documents, the Obligor shall pay such
additional amounts as may be necessary to ensure that the relevant Bank
receives and retains (after any deduction or withholding in respect of
such additional amount) a net amount equal to the full amount which it
would have received had payment not been made subject to Tax or any
other deduction or withholding.
(b) An Obligor is not obliged to pay any additional amounts pursuant to
paragraph (a) above in respect of (i) any deduction or withholding
which would not have been required if the relevant Finance Party had
completed a declaration, claim, exemption or other form which it is
able to complete; or (ii) any voluntary change by a Finance Party in
the Facility Office.
11.2 INDEMNITY
Each Obligor shall:
(a) pay when due all Taxes required by law to be deducted or
withheld by it from any amounts paid or payable under the
Finance Documents;
(b) within 30 days of the payment being made, deliver to the Agent
for the relevant Finance Party evidence satisfactory to that
Finance Party (including all relevant Tax receipts or
certified copies thereof) that the payment has been duly
remitted to the appropriate authority; and
(c) within 5 Business Days of a demand made by the Agent on behalf
of a Finance Party identifying the circumstances giving rise
to a claim indemnify each Finance Party against any loss or
liability or cost which that Finance Party incurs as a
consequence of the payment or non-payment of those Taxes
(other than for the avoidance of doubt any additional amount
payable pursuant to Clause 11.1(a) or in respect of which an
Obligor is not liable to make any payment pursuant to Clause
11.1(a) by virtue of Clause 11.1(b).
11.3 TAX CREDIT
If any Obligor pays any increased amount pursuant to Clause 11 and any
Finance Party effectively obtains a refund of Tax or credit against Tax
by reason of that payment, and if the Finance Party is able to identify
that refund or credit as being attributable to that payment having
regard to its other activities, then such Finance Party shall reimburse
to the Obligor
27
such amount as it shall determine (any such determination being
conclusive) to be the proportion of that refund or credit as would
leave the Finance Party after that reimbursement in no better or worse
position than it would have been if that payment had not been required.
Neither the Agent nor any of the Banks shall be obliged to arrange
their tax affairs in any particular manner or to disclose any
confidential information regarding their tax affairs or computations to
the Borrower.
12. MARKET DISRUPTION
12.1 ABSENCE OF QUOTATIONS
If LIBOR or EURIBOR is to be determined by reference to the Reference
Banks but a Reference Bank does not supply an offered rate by 11.30
a.m. on a Rate Fixing Day, the applicable LIBOR or EURIBOR shall,
subject to Clause 12.2 (Market disruption), be determined on the basis
of the quotations of the remaining Reference Banks.
12.2 MARKET DISRUPTION
If, in relation to any proposed Advance:-
(a) LIBOR or EURIBOR is to be determined by reference to the
Reference Banks but no, or only one, Reference Bank supplies a
rate by 11.30 a.m. on the Rate Fixing Day or the Agent
otherwise determines that adequate and fair means do not exist
for ascertaining LIBOR or EURIBOR; or
(b) Before the close of business on the Rate Fixing Date the Agent
receives notification from Banks whose participations in an
Advance exceed 35 per cent. of that Advance that the cost to
them of obtaining matching deposits in the London or (in the
case of euro) Participating Member States' interbank market
would be in excess of LIBOR or EURIBOR, as appropriate, for
the relevant Term,
the Agent shall promptly notify the Obligor and the Banks of the fact
and that this Clause 12 is in operation.
12.3 SUBSTITUTE BASIS
(a) After any notification under Clause 12.2 (Market disruption) the
relevant Advance shall not be made. However, within five Business Days
of receipt of the notification, the Obligor and the Agent shall enter
into negotiations for a period of not more than 30 days with a view to
agreeing a substitute basis for determining the rate of interest and/or
funding applicable to that and (to the extent required) any future
Advance. Any substitute basis agreed shall be, with the prior consent
of all the Banks, binding on all the Parties.
(b) During any period when a substitute basis is in force, the Agent and
the Company shall consult not less frequently than once every 30 days
with a view to reverting to the other provisions of this Agreement as
soon as practicable.
(c) Where an Advance is not made pursuant to Clause 12.3, and where such
Advance would have been applied in repaying any outstanding Advances
maturing on the proposed date for such Advance, the three day period
referred to in Clause 18.2 shall be treated as applicable,
28
notwithstanding the absence of technical malfunction or administrative
error, but extended to 30 days to the extent that the Borrower fails to
repay such outstanding Advances on such date.
13. INCREASED COSTS
13.1 INCREASED COSTS
(a) Subject to Clause 13.2 (Exceptions), the Borrowers' Agent shall within
5 Business Days following a demand by a Finance Party in accordance
with Clause 13.3 pay to that Finance Party the amount of any increased
cost incurred by it or any Holding Company (which, for the purposes of
this Clause 13.1, means any company or entity (if any) within the
consolidated supervision of which such Finance Party is included) of
such Finance Party as a result of:
(i) the introduction of, or any change in, or any change in the
interpretation or application of, any law or regulation by a
competent authority charged with that function; or
(ii) compliance with any regulation made after the date of this
Agreement by a central bank monetary, regulatory or other
similar authority,
(including any law or regulation relating to taxation, change in
currency of a country or reserve asset, special deposit, cash ratio,
liquidity or capital adequacy requirements or any other form of banking
or monetary control).
(b) In this Agreement "INCREASED COST" means:-
(i) an additional cost incurred by a Finance Party or any Holding
Company of such Finance Party as a result of it having entered
into, or performing, maintaining or funding its obligations
under, any Finance Document; or
(ii) that portion of an additional cost incurred by a Finance Party
or any Holding Company of such Finance Party in making,
funding or maintaining all or any advances comprised in a
class of advances formed by or including that Finance Party's
participations in the Advances made or to be made under this
Agreement as is attributable to that Finance Party making,
funding or maintaining those participations; or
(iii) a reduction in any amount payable to a Finance Party or any
Holding Company of such Finance Party or in the effective
return to a Finance Party or any of its Affiliates under this
Agreement or (to the extent that it is attributable to this
Agreement) on its capital; or
(iv) the amount of any payment made by a Finance Party or any
Holding Company of such Finance Party, or the amount of any
interest or other return foregone by a Finance Party or any of
its Affiliates, calculated by reference to any amount received
or receivable by that Finance Party or any of its Affiliates
from any other Party under this Agreement.
29
13.2 EXCEPTIONS
Clause 13.1 (Increased costs) does not apply to any increased cost:-
(a) compensated for by the payment of the Mandatory Cost;
(b) compensated for by the operation of Clause 11 (Taxes) or not
required to be compensated for by reason of Clause 11.1(b) or
11.2;
(c) attributable to any change in the rate of, or change in the
basis of calculating, Tax on the overall net income of a Bank
(or the overall net income of a division or branch of the
Bank) imposed in the jurisdiction in which (i) its principal
office or Facility Office is for the time being situate, (ii)
it is incorporated, or (iii) it is treated as resident for Tax
purposes;
(d) attributable to the wilful breach by a Bank or Affiliate of
any law or regulation applicable to it;
(e) arising from a request or requirement relating to the
maintenance of capital made by way of implementation of the
paper entitled "International Convergence of Capital
Measurement and Capital Standards" dated July 1988 and
prepared by the Basle Committee on Banking Regulations and
Supervision, as amended in 1991, in the manner in which it is
being implemented as at the date of this Agreement; or
(f) attributable to a voluntary change by any Finance Party of the
Facility Office.
13.3 NOTIFICATION
If any Finance Party intends to make a claim under Clause 13.1 then and
in every such case it shall notify the Borrowers' Agent through the
Agent of the claim and the circumstances giving rise to the claim
promptly on becoming aware of those circumstances including, in
reasonable detail, particulars of the circumstances and accompanied by
a certificate specifying the amount of compensation claimed and setting
out the calculation of the amount in reasonable detail. Nothing in this
Clause 13.3 shall oblige any Finance Party (or any Holding Company in
such Finance Party) to disclose any confidential information relating
to the organisation of its affairs.
14. ILLEGALITY
If it is or becomes unlawful in any jurisdiction for a Finance Party to
give effect to any of its obligations as contemplated by this Agreement
or to fund or maintain its participation in any Advance, then:-
(a) that Finance Party may notify the Obligor through the Agent
accordingly; and
(b) (i) each Borrower shall, no earlier than 3 Business Days
prior to the latest permitted lawful date for
payment, prepay the participations of that Finance
Party in all the Advances made to it; and
(ii) the Commitment of that Finance Party shall forthwith
be cancelled.
30
15. GUARANTEE
15.1 GUARANTEE
The Company irrevocably and unconditionally:-
(a) guarantees to each Finance Party prompt performance by the
other Borrower of all its obligations under the Finance
Documents;
(b) undertakes with each Finance Party that whenever the other
Borrower does not pay any amount when due under or in
connection with any Finance Document, the Company shall
forthwith on demand by the Agent pay that amount as if the
Company instead of the other Borrower were expressed to be the
principal obligor; and
(c) indemnifies each Finance Party on demand against any loss or
liability suffered by it if any obligation guaranteed by the
Company is or becomes unenforceable, invalid or illegal.
15.2 CONTINUING GUARANTEE
This guarantee is a continuing guarantee and will extend to the
ultimate balance of all sums payable by the other Borrower under the
Finance Documents, regardless of any intermediate payment or discharge
in whole or in part.
15.3 REINSTATEMENT
(a) Where any discharge (whether in respect of the obligations of the other
Borrower or any security for those obligations or otherwise) is made in
whole or in part or any arrangement is made on the faith of any
payment, security or other disposition which is avoided or must be
restored on insolvency, liquidation or otherwise without limitation,
the liability of the Company under this Clause 15 shall continue as if
the discharge or arrangement had not occurred.
(b) Each Finance Party may concede or compromise any claim that any
payment, security or other disposition is liable to avoidance or
restoration.
15.4 WAIVER OF DEFENCES
The obligations of the Company under this Clause 15 will not be
affected by an act, omission, matter or thing which, but for this
provision, would reduce, release or prejudice any of its obligations
under this Clause 15 or prejudice or diminish those obligations in
whole or in part, including (whether or not known to it or any Finance
Party):-
(a) any time or waiver granted to, or composition with, the other
Borrower or any other person;
(b) the release of the other Borrower or any other person under
the terms of any composition or arrangement with any creditor
of any member of the Group;
31
(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, the
other Borrower or any 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 powers, authority or legal
personality of or dissolution or change in the members or
status of the other Borrower or any other person;
(e) any variation (however fundamental) or replacement of a
Finance Document or any other document or security so that
references to that Finance Document in this Clause 15 shall
include each variation or replacement;
(f) any unenforceability, illegality or invalidity of any
obligation of any person under any Finance Document or any
other document or security, to the intent that the Company's
obligations under this Clause 15 shall remain in full force
and its guarantee be construed accordingly, as if there were
no unenforceability, illegality or invalidity; or
(g) any postponement, discharge, reduction, non-provability or
other similar circumstance affecting any obligation of the
other Borrower under a Finance Document resulting from any
insolvency, liquidation or dissolution proceedings or from any
law, regulation or order so that each such obligation shall
for the purposes of the Company's obligations under this
Clause 15 be construed as if there were no such circumstance.
15.5 IMMEDIATE RECOURSE
The Company waives any right it may have of first requiring any Finance
Party (or any trustee or agent on its behalf) to proceed against or
enforce any other rights or security or claim payment from any person
before claiming from the Company under this Clause 15.
15.6 APPROPRIATIONS
Until all amounts which may be or become payable by the other Borrower
under or in connection with the Finance Documents have been irrevocably
paid in full, each Finance Party (or any trustee or agent on its
behalf) may:-
(a) refrain from applying or enforcing any other moneys, security
or rights held or received by that Finance Party (or any
trustee or agent on its behalf) in respect of those amounts,
or apply and enforce the same in such manner and order as it
sees fit (whether against those amounts or otherwise) and the
Company shall not be entitled to the benefit of the same; and
(b) hold in an interest-bearing suspense account any moneys
received from the Guarantor or on account of the Guarantor
liability under this Clause 15.
32
15.7 NON-COMPETITION
Until all amounts which may be or become payable by the other Borrower
under or in connection with the Finance Documents have been irrevocably
paid in full, the Guarantor shall not, after a claim has been made
which has not been satisfied in full or by virtue of any payment or
performance by it under this Clause 15:-
(a) be subrogated to any rights, security or moneys held, received
or receivable by any Finance Party (or any trustee or agent on
its behalf) or be entitled to any right of contribution or
indemnity in respect of any payment made or moneys received on
account of the Company's liability under this Clause 15;
(b) claim, rank, prove or vote as a creditor of the other Borrower
or its estate in competition with any Finance Party (or any
trustee or agent on its behalf); or
(c) receive, claim or have the benefit of any payment,
distribution or security from or on account of the other
Borrower, or exercise any right of set-off as against the
other Borrower,
unless the Agent otherwise directs. The Guarantor shall hold in trust
for and forthwith pay or transfer to the Agent for the Finance Parties
or as directed by the Agent any payment or distribution or benefit of
security received by it contrary to this Clause 15.7 or as directed by
the Agent.
15.8 ADDITIONAL SECURITY
This guarantee is in addition to and is not in any way prejudiced by
any other security now or subsequently held by any Finance Party.
16. REPRESENTATIONS AND WARRANTIES
16.1 REPRESENTATIONS AND WARRANTIES
Each Obligor makes the representations and warranties set out in this
Clause 16 to each Finance Party (but in the case of Ficomexa only in
respect of itself).
16.2 STATUS
Each of them is a company, duly incorporated and validly existing under
the laws of the jurisdiction of its incorporation and has power and
authority to own its assets and to conduct the business which it
conducts and/or proposes to conduct.
16.3 POWERS AND AUTHORITY
Each of them has the power to enter into and perform, and has taken all
necessary action to authorize the entry into, performance and delivery
of, the Finance Documents to which it is or will be a party and the
transactions contemplated by those Finance Documents.
33
16.4 LEGAL VALIDITY
Subject to the Reservations, Belgian Reservations and Swiss
Reservations each Finance Document to which it is or will be a party
constitutes, or when executed in accordance with its terms will
constitute, its legal, valid and binding obligation enforceable in
accordance with its terms.
16.5 AUTHORIZATIONS
All authorizations required in connection with the entry into,
performance, validity and enforceability of, and the transactions
contemplated by, the Finance Documents have been obtained or effected
(as appropriate) and are in full force and effect.
16.6 PARI PASSU RANKING
Its obligations under the Finance Documents rank and will rank at least
pari passu with all its other unsecured obligations except for
obligations mandatorily preferred by law applying to companies
generally.
16.7 TAXES ON PAYMENTS
All amounts payable by each Obligor under the Finance Documents may be
made free and clear of and without deduction for or on account of any
tax under the laws of its jurisdiction of incorporation in force as at
the date hereof.
16.8 STAMP DUTIES
At the date hereof no stamp or registration duty or similar taxes or
charges are payable in its jurisdiction of incorporation in respect of
any Finance Document.
16.9 IMMUNITY
(a) The execution by each Obligor of each Finance Document constitutes, and
its exercise of its rights and performance of its obligations under
each Finance Document will constitute, private and commercial acts done
and performed for private and commercial purposes; and
(b) no Obligor will be entitled to claim immunity from suit, execution,
attachment or other legal process in any proceedings taken in the
jurisdiction of its incorporation in relation to any Finance Document.
16.10 JURISDICTION/GOVERNING LAW
(a) Each Obligor's:-
(i) irrevocable submission under Clause 35 (Jurisdiction) to the
jurisdiction of the courts of England;
(ii) agreement that this Agreement is governed by English law; and
(iii) agreement not to claim any immunity to which it or its assets
may be entitled,
34
are legal, valid and binding under the laws of its jurisdiction of
incorporation; and
(b) Subject to the Swiss Reservations or the Belgian Reservations (as the
case may be) any judgment obtained in England will be recognised and be
enforceable by the courts of its jurisdiction of incorporation.
16.11 NON-CONFLICT
The entry into and performance by it of, and the transactions
contemplated by, the Finance Documents do not and will not:-
(a) conflict with any applicable law or regulation or judicial or
official order; or
(b) conflict with the constitutional documents of any Obligor; or
(c) conflict with any document which is binding upon any Obligor
or any asset of any Obligor.
16.12 NO DEFAULT
(a) No Default is outstanding or is likely to result from the making of any
Advance; and
(b) no other event is outstanding which constitutes a default under any
document which is binding on the Obligors or any Principal Subsidiary
or any asset of any Obligor or any Principal Subsidiary to an extent or
in a manner which might have a material adverse effect.
16.13 LITIGATION
No litigation, arbitration or administrative proceedings (other than
proceedings where the Obligor has proven to the satisfaction of the
Agent that such proceedings are being contested in good faith and in
the competent forum) are, to its knowledge, current or pending or
threatened, which is likely to, if adversely determined, have a
material adverse effect.
16.14 FINANCIAL STATEMENTS
The Original Financial Statements were prepared in accordance with US
GAAP consistently applied unless expressly disclosed to the contrary,
and truly and fairly represent the financial condition and operations
of the Group as at the date on which they were prepared. For the
purposes of any repetition of this representation and warranty after
the delivery of the 1999 Financial Statements each Obligor's Financial
Statements delivered pursuant to Clause 17.2 were prepared in
accordance with US GAAP and give (in conjunction with any notes
thereto) a true and fair view of the financial condition of the Group
as at the date as of which they were prepared and of the results of the
Group's operations during the period thereby covered.
16.15 NO MATERIAL ADVERSE CHANGE
Since the date of preparation of the Original Financial Statements,
there has been no material adverse change in the business or financial
condition of the Company or any member of the Group which would be
likely to have a material and adverse effect on the ability of an
35
Obligor to meet its payment obligations hereunder or to comply with the
financial covenants in Clause 17.6 below.
16.16 FULL DISCLOSURE
The factual information contained in the Information Memorandum and all
of the other written information supplied by an Obligor to any Finance
Party in connection herewith 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, all opinions and financial projections of or
supplied by such Obligor therein are based on fair and reasonable
assumptions and it is not aware of any material facts or circumstances
that have not been disclosed to the Finance Parties, the Arrangers and
the Banks and which might, if disclosed, be reasonably expected to
adversely affect the decision of a person considering whether or not to
provide finance to the Borrowers on the terms set out in this Facility.
16.17 EXISTING SECURITY
Save as permitted under Clause 17.12 no Security Interests exist on or
over all or any of the present or future revenues or assets of any
member of the Group save as disclosed in Schedule 6.
16.18 NO OBLIGATION TO CREATE SECURITY
An Obligor's execution of this Agreement and its exercise of its rights
and performance of its obligations hereunder will not result in the
existence of nor oblige any member of the Group to create any Security
Interest over all or any of its present or future revenues or assets.
16.19 WINDING-UP
No meeting has been convened for Winding-up any Obligor nor any
Principal Subsidiary, no step is intended by any of them and, as far as
any of them is aware, no petition, application or the like is
outstanding for Winding-up any Obligor nor any Principal Subsidiary
(except for the purpose of a solvent amalgamation or reconstruction on
terms, in the case of an Obligor or Principal Subsidiary, approved by
the Majority Banks, such approval not to be unreasonably withheld or
delayed).
16.20 TIMES FOR MAKING REPRESENTATIONS AND WARRANTIES
(a) The representations and warranties set out in this Clause 16
(Representations and Warranties) (other than those set out in Clauses
16.7 (Taxes on payments), 16.8 (Stamp duties), 16.16 (Full Disclosure)
and 16.19 (Winding-up) are made by each Obligor on the Signing Date,
and are deemed to be made again by each Obligor on the date of each
Request, on each Drawdown Date and on the first day of each Term.
(b) On each occasion when the representation and warranty set out in Clause
16.15 (No Material Adverse Change) is repeated in accordance with
Clause 16.20(a), it is made by reference to the latest consolidated
financial statements of the Group which have been delivered to the
Agent pursuant to Clause 17.2 (Financial information).
36
17. UNDERTAKINGS
17.1 DURATION
The undertakings in this Clause 17 remain in force from the date of
this Agreement for so long as any amount is or may be outstanding under
this Agreement or any Commitment is in force.
17.2 FINANCIAL INFORMATION
The Company shall supply to the Agent in sufficient copies for all the
Banks:-
(a) as soon as the same are available (and in any event within 120
days of the end of each of its financial years):-
(i) in the case of the Company, the consolidated
financial statements of the Group for that financial
year; and
(ii) in the case of each other Obligor, the financial
statements of such Obligor for that financial year,
(b) as soon as the same are available (and in any event within 90
days of the end of each quarter of each of its financial
years):-
(i) in the case of the Company, its consolidated
financial statements of the Group for such period;
(ii) the financial statements of each other Obligor for
such period;
(iii) a statement confirming the Company's Principal
Subsidiaries at that date; and
(iv) the Margin Certificate.
In the case of sub-paragraphs (b)(i) and (ii) above such
financial statements shall include at least a balance sheet as
at the end of, and a profit and loss account for the financial
year to date.
17.3 INFORMATION - MISCELLANEOUS
Each Obligor shall supply to the Agent:-
(a) (in the case of the Company only) all documents despatched by
it to its shareholders (or any class of them) or by it to its
creditors generally or to any holders of listed debt
securities issued by the Company at the same time as they are
despatched;
(b) promptly upon becoming aware of them, details of any
litigation, arbitration or administrative proceedings which
are current, threatened or pending, and which might, if
adversely determined, have a material adverse effect; and
37
(c) promptly, such further information in the possession or
control of a Principal Subsidiary or an Obligor regarding its
business and financial condition and operations as the Agent
or any Bank through the Agent may reasonably request.
17.4 REQUIREMENTS AS TO FINANCIAL STATEMENTS
Each Obligor shall ensure that:
(a) each set of financial statements delivered by it under Clause
17.2 is prepared in accordance with US GAAP consistently
applied;
(b) each set of financial statements delivered by it under Clause
17.2 is certified by a Financial Officer of such Obligor as
giving a true and fair view of its financial condition as at
the end of the period to which those financial statements
relate and of the results of the Group's operations during
such period; and
(c) each set of financial statements delivered by it under Clause
17.2(a) (other than those of Ficomexa) has been audited by an
internationally recognised firm of independent auditors
licensed to practise in the jurisdiction of incorporation of
such Obligor.
17.5 ACCOUNTING POLICIES
Each Obligor shall ensure that each set of financial statements
delivered to the Agent under Clause 17.2 is prepared using accounting
policies, practices, procedures and reference period consistent with
those applied in the preparation of the Original Financial Statements
unless, in relation to any such set of financial statements, such
Obligor notifies the Agent that there have been one or more changes in
any such accounting policies, practices, procedures or reference period
and the auditors for the time being of such Obligor, provide:
(a) a description of the changes and the adjustments which would
be required to be made to those financial statements in order
to cause them to use the accounting policies, practices,
procedures and reference period upon which the 1999 Financial
Statements were prepared; and
(b) sufficient information, in such detail and format as may be
reasonably required by the Agent, to enable the Banks to make
an accurate comparison between the financial position
indicated by those financial statements and the Original
Financial Statements,
and 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.
17.6 FINANCIAL CONDITION OF THE GROUP
At all times, the consolidated financial condition of the Group, as
evidenced by financial statements prepared in accordance with the
provisions of Clause 17.5, shall be such that:
(i) the ratio of EBITDA to Consolidated Interest Expenses shall be
not less than 5:1, in respect of any four consecutive quarters
of the Company;
38
(ii) the ratio of Net Consolidated Financial Debt at the end of any
quarter of the Company to EBITDA for the four consecutive
quarters of the Company ending at the end of such first
mentioned quarter shall be equal to or less than 3.5:1 until
31st December, 2000 and equal to or less than 3:1 thereafter,
provided that:
(A) references to four consecutive quarters shall not
apply until four consecutive quarters as from 31st
December, 1999 shall have elapsed, up until which the
actual number of such consecutive quarters shall be
taken and the ratio in (ii) shall be adjusted
accordingly to take account of the shorter period for
which EBITDA is computed; and
(B) the quarter during which the acquisition of Olsten
takes place shall, for the purposes of calculating
the ratios referred to above, be calculated as if the
acquisition of Olsten had taken place on the first
day of that quarter.
For the purpose of testing the ratios referred to in this Clause 17.6,
each Obligor will deliver to the Agent, at the time it delivers the
quarterly statements requested under Clause 17.2, a certificate of any
one of its Financial Officers :
(a) setting out the ratios and a brief description of the method
of computation, together with such information as is required
to support such certificate and computation; and
(b) confirming that no Default is outstanding, or if a Default is
outstanding specifying the Default and the steps, if any being
taken to remedy it
17.7 ACCOUNTING TERMS
All accounting expressions which are not otherwise defined herein shall
be construed in accordance with US GAAP.
17.8 NOTIFICATION OF DEFAULT
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.
17.9 COMPLIANCE CERTIFICATES
Each Obligor shall supply to the Agent promptly if the Agent so
requests in writing, a certificate signed by one of its Financial
Officers on its behalf certifying that no Default is outstanding or, if
a Default is outstanding, specifying the Default and the steps, if any,
being taken to remedy it.
17.10 AUTHORIZATIONS
Each Obligor shall promptly:-
(a) obtain, maintain and comply with the terms of; and
(b) supply certified copies to the Agent of,
39
any authorization required under any law or regulation to enable it to
perform its obligations under, or for the validity or enforceability
of, any Finance Document.
17.11 PARI PASSU RANKING
Each Obligor shall procure that its obligations under the Finance
Documents do and will rank at least pari passu with all its other
present and future unsecured and unsubordinated obligations, except for
obligations mandatorily preferred by law applying to companies
generally.
17.12 NEGATIVE PLEDGE
No Obligor shall, and the Company shall procure that no other member of
the Group will, without the prior consent of the Majority Banks, such
consent not to be unreasonably withheld, create or permit to subsist
any Security Interest (other than Permitted Security Interests) on any
of its present or future revenues or assets.
17.13 DISPOSALS
(a) No Obligor shall, and the Company shall procure that no other member of
the Group will, without the prior written consent of the Agent acting
on the instructions of the Majority Banks, either in a single
transaction or in a series of transactions, whether related or not and
whether voluntarily or involuntarily, sell, transfer, grant or lease or
otherwise dispose of all or any substantial part of its assets.
(b) Paragraph (a) does not apply to:
(a) disposals made in the ordinary course of business of the
disposing entity for market value on an arm's length basis;
(b) disposals from any member of the Group to any other member of
the Group;
(c) disposals of property or assets (excluding receivables) in
exchange for other property or assets of a comparable type in
value, made in the ordinary course of business;
(d) the sale, transfer, loan or disposal in the ordinary course of
trading of obsolete plant or machinery;
(e) the creation by an Obligor or any member of the Group of a
Permitted Security Interest;
(f) disposals of cash raised or borrowed for the purpose for which
it was raised or borrowed;
(g) the repayment of any monies borrowed and the payment of any
dividend or distribution;
(h) a distribution of surplus assets of a member of the Group in
liquidation or winding-up not involving insolvency;
40
(i) the application of cash in the acquisition of assets or
services in the ordinary course of trading of an Obligor or
the relevant member of the Group;
(j) the disposal of receivables under receivables financing
arrangements or securitisation arrangements, on commercial
terms;
(k) disposals of property or assets otherwise than as permitted by
paragraphs (a) to (j) of this Clause 17.13 during the term of
this Agreement so long as the aggregate book value of all such
property or assets does not exceed 10 per cent. of the Total
Consolidated Assets as shown in the latest audited
consolidated financial statements of the Group,
Provided that:
(i) an Obligor shall ensure that it provides to the Banks
information setting out changes in the structure of the Group
and the transfer, sale or disposal of property or assets by an
Obligor or any Principal Subsidiary to any of its own
subsidiaries where the book value of the relevant assets is
equal to or greater than CHF20,000,000, such information to be
provided with the quarterly financial statements to be
delivered under Clause 17.2, and
(ii) none of the above exceptions shall apply to the disposal by
any person of a Principal Subsidiary to any person other than
a member of the Group.
17.14 CHANGE OF BUSINESS
The Company will ensure that the business of the Company's Group, taken
as a whole, will continue to be principally that of staffing services
as described in the Information Memorandum.
17.15 LOANS AND GUARANTEES
The Company shall ensure that no member of the Group shall, without the
prior written consent of the Majority Banks (such consent not to be
unreasonably withheld or delayed):
(a) make any loans or grant any credit (save for credit in the
ordinary course of business) other than:
(i) to another member of the Group;
(ii) to employees in the ordinary course of business;
(iii) loans of assets permitted by Clause 17.13 (Disposals)
above;
(iv) loans made in connection with and to facilitate the
acquisition of any business or company on arm's
length terms and which are repayable within twelve
months;
41
(v) loans made by subsidiaries acquired after the date
hereof which have committed, prior to the date of
their acquisition, to make such Indebtedness;
(vi) representing any deferred purchase price on any
permitted sale of assets by any member of the Group;
(vii) making loans or the grant of credit by any member of
the Group and not falling within (i) to (v) above, up
to an aggregate amount of CHF20,000,000 (or its
equivalent in any other currencies);
(b) give any guarantee or indemnity to or for the benefit of any
person other than:
(i) in the ordinary course of business;
(ii) for the benefit of another member of the Group;
(iii) any guarantee or indemnity in connection with and to
facilitate a disposal permitted by Clause 17.13above
or an acquisition by any member of the Group of a
business or a company; or
(iv) any other guarantee or indemnity provided that the
aggregate of the contingent liability of each member
of the Group under all such guarantees and
indemnities taken together shall not at any time
exceed CHF20,000,000 (or its equivalent in any other
currencies).
17.16 INSURANCE
Each Obligor shall, and the Company shall procure that each other
member of the Group will maintain insurance with financially sound and
reputable insurers with respect to its assets of an insurable nature
against such risks and in such amounts as are normally maintained by
persons carrying on the same or a similar class of business.
17.17 MAINTENANCE OF STATUS
Each Obligor will and the Company shall procure that each Principal
Subsidiary will:-
(a) do all such things as are necessary to maintain its corporate
existence (except where there is a merger, consolidation,
reconstruction or amalgamation with another member of the
Group in the context of a solvent transaction); and
(b) ensure that it has the right and is duly qualified to conduct
its business as it is conducted in all applicable
jurisdictions, where failure to do so would have a material
adverse effect.
18. DEFAULT
18.1 EVENTS OF DEFAULT
Each of the events set out in this Clause 18 is an Event of Default
(whether or not caused by any reason whatsoever outside the control of
any Borrower or any other person).
42
18.2 NON-PAYMENT
An Obligor does not pay any amount of principal or interest on the due
date (or, where its failure is due solely to technical malfunction or
administrative error, within three Business Days of being due) or fails
to pay any other amount payable hereunder within five Business Days of
being due by it under the Finance Documents at the place and in the
currency in which it is expressed to be payable.
18.3 BREACH OF OTHER OBLIGATIONS
An Obligor does not comply with:
(a) the undertakings contained in Clauses 17.2 (Financial
information) to Clause 17.5 (Accounting policies) (inclusive)
and 17.7 (Accounting Terms) to 17.17 (Maintenance of status)
(inclusive) and such failure to comply is not remedied within
ten days; or
(b) the undertaking contained in Clause 17.6 (Financial condition
of the Group); or
(c) any other obligation under this Agreement and such failure is
not remedied within 30 days of the Agent giving notice to the
Borrowers' Agent or 30 days of the Borrower's Agent having
become aware of such failure.
18.4 MISREPRESENTATION
A representation, warranty or statement made or repeated in or in
connection with any Finance Document or in any document delivered by or
on behalf of any Borrower under or in connection with any Finance
Document is incorrect in any material respect when made or deemed to be
made or repeated.
18.5 CROSS-DEFAULT
(a) Any Financial Indebtedness of any Obligor or Principal Subsidiary is
not paid when due or within any applicable grace period; or
(b) any Financial Indebtedness of any Obligor or Principal Subsidiary
becomes prematurely due and payable or is placed on demand as a result
of an event of default (howsoever described) under the document
relating to that Financial Indebtedness; or
(c) any commitment for, or underwriting of, any Financial Indebtedness of
any Obligor or Principal Subsidiary is cancelled or suspended as a
result of an event of default (howsoever described) under the document
relating to that Financial Indebtedness,
provided that in the case of the events listed in (a) to (c) above;
(i) no Event of Default will occur under this Clause 18.5 if the
aggregate amount of Financial Indebtedness or Commitment for
Financial Indebtedness falling within paragraphs (a) to (c)
above (without taking into account any sum more than once in
43
whatever capacity owed or by whom) is less than CHF15,000,000
(or its equivalent in any other currency or currencies); and
(ii) for the purposes of this Clause 18.5, if any member of the
Group disputes any Financial Indebtedness that is owing to any
person pursuant to the terms of an agreement relating to the
acquisition of any business or company by a member of the
Group, on the basis of a bona fide claim by the member of the
Group against such person (and where the Borrower has
demonstrated to the Agent's reasonably satisfaction that its
claim is bona fide) the Indebtedness (representing deferred
purchase price or additional consideration) in respect of such
acquisition shall not constitute Financial Indebtedness (to
the extent that it would otherwise do so) unless and until the
merits of the claim have been adjudicated upon (unless subject
to appeal) or the claim is dropped or settled.
18.6 INSOLVENCY
(a) A Borrower or any Principal Subsidiary is, or is deemed for the
purposes of any law to be, unable to pay its debts as they fall due or
to be insolvent, or admits inability to pay its debts as they fall due;
or
(b) a Borrower or any Principal Subsidiary suspends making payments on all
or any class of its debts or announces an intention to do so, or a
moratorium is declared in respect of any of its indebtedness; or
(c) a Borrower or any Principal Subsidiary, by reason of financial
difficulties, begins negotiations with one or more of its creditors
with a view to the readjustment or rescheduling of any of its
indebtedness.
18.7 INSOLVENCY PROCEEDINGS
(a) Any step (including petition, proposal or convening a meeting) is taken
with a view to a composition, assignment or arrangement with any
creditors of any Obligor or Principal Subsidiary; or
(b) a meeting of any Obligor or Principal Subsidiary is convened for the
purpose of considering any resolution for (or to petition for) its
winding-up or for its administration or any such resolution is passed;
or
(c) any person presents a petition for the winding-up or for the
administration of any Obligor or Principal Subsidiary; or
(d) an order for the winding-up or administration of any Obligor or
Principal Subsidiary is made; or
(e) any other step (including petition, proposal or convening a meeting) is
taken with a view to the rehabilitation, administration, custodianship,
liquidation, winding-up or dissolution of any Obligor or Principal
Subsidiary or any other insolvency proceedings involving any Obligor or
Principal Subsidiary,
44
(excluding orders which are frivolous or vexatious and which are
withdrawn or stayed within 21 days).
18.8 APPOINTMENT OF RECEIVERS AND MANAGERS
(a) Any liquidator, trustee in bankruptcy, judicial custodian, compulsory
manager, receiver, administrative receiver, administrator or the like
is appointed in respect of any Obligor or Principal Subsidiary or any
substantial part of its assets; or
(b) the directors of any Obligor or Principal Subsidiary requests the
appointment of a liquidator, trustee in bankruptcy, judicial custodian,
compulsory manager, receiver, administrative receiver, administrator or
the like; or
(c) any other steps are taken to enforce any Security Interest over any
part of the assets with a value of CHF 15,000,000 or more of any
Obligor or Principal Subsidiary.
18.9 CREDITORS' PROCESS
Any execution or distress is levied against, or an encumbrancer takes
possession of, the whole or any material part of, the property,
undertaking or assets of the Borrower or any Principal Subsidiary and
any such action is not lifted or discharged within 14 days.
18.10 ANALOGOUS PROCEEDINGS
There occurs, in relation to any Obligor or Principal Subsidiary, any
event anywhere which, in the opinion of the Majority Banks, appears to
correspond with any of those mentioned in Clauses 18.6 (Insolvency) to
18.9 (Creditors' process) (inclusive).
18.11 CESSATION OF BUSINESS
An Obligor or Principal Subsidiary ceases, or threatens to cease, to
carry on all or a substantial part of its business, other than as a
result of a merger, amalgamation, consolidation, reconstruction,
transfer or sale within the Group.
18.12 UNLAWFULNESS
It is or becomes unlawful for any Obligor to perform any of its
material obligations under the Finance Documents.
18.13 GUARANTEE
The guarantee of the Company is not effective or is alleged by any
Obligor to be ineffective for any reason.
18.14 OWNERSHIP OF FICOMEXA
Ficomexa is not or ceases to be a Subsidiary of the Company.
45
18.15 CHANGE OF CONTROL OF THE COMPANY
Any person or group of connected persons which does not at the date
hereof have control of the Company, acquires such control. For the
purposes of this Clause 18.15, a company or corporation is connected
with another if one is a subsidiary of the other or both are
subsidiaries of another company or corporation or controlled by the
same person or group of connected persons, and "control" of the Company
shall be construed as the ability to direct the affairs of the Company
or control the composition of the Company's board of directors or
equivalent Provided that the sharing of control by the persons having
control of the Company at the date hereof with any other person, when
such other person alone does not have control, shall not constitute an
Event of Default under this Clause 18.15.
18.16 MATERIAL ADVERSE CHANGE
Any circumstances arise which are likely to have, in the reasonable
opinion (formed after consultation with the Company where practicable)
of the Majority Banks a material and adverse effect on the ability of
an Obligor to meet its payment obligations or comply with the
undertaking in Clause 17.6.
18.17 ACCELERATION
On and at any time after the occurrence of an Event of Default the
Agent may, and shall if so directed by the Majority Banks, by notice to
the Obligors:-
(a) cancel the Total Commitments; and/or
(b) demand that all or part of the Advances, together with accrued
interest and all other amounts accrued under the Finance
Documents be immediately due and payable, whereupon they shall
become immediately due and payable; and/or
(c) demand that all or part of the Advances be payable on demand,
whereupon they shall immediately become payable on demand by
the Agent acting on the instructions of the Majority Banks,
provided that the Agent shall not proceed to give such notice if, prior
to that time, the Event of Default has, to the satisfaction of the
Agent, been waived or remedied.
19. THE AGENT AND THE ARRANGERS
19.1 APPOINTMENT AND DUTIES OF THE AGENT
(a) Each Finance Party (other than the Agent) irrevocably appoints the
Agent to act as its agent under and in connection with the Finance
Documents.
(b) Each Party appointing the Agent irrevocably authorizes the Agent on its
behalf to:
(i) perform the duties and to exercise the rights, powers and
discretions that are specifically delegated to it under or in
connection with the Finance Documents, together with any other
incidental rights, powers and discretions; and
46
(ii) execute each Finance Document expressed to be executed by the
Agent on that Party's behalf.
(c) The Agent has only those duties which are expressly specified in this
Agreement. Those duties are solely of a mechanical and administrative
nature.
19.2 ROLE OF THE ARRANGERS
Except as specifically provided in this Agreement, the Arrangers have
no obligations of any kind to any other Party under or in connection
with any Finance Document.
19.3 RELATIONSHIP
The relationship between the Agent and the other Finance Parties is
that of agent and principal only. Nothing in this Agreement constitutes
the Agent as trustee or fiduciary for any other Party or any other
person and the Agent need not hold in trust any moneys paid to it for a
Party or be liable to account for interest on those moneys.
19.4 MAJORITY BANKS' INSTRUCTIONS
(a) The Agent will be fully protected if it acts in accordance with the
instructions of the Majority Banks in connection with the exercise of
any right, power or discretion or any matter not expressly provided for
in the Finance Documents. Any such instructions given by the Majority
Banks will be binding on all the Banks. In the absence of such
instructions, the Agent may act as it considers to be in the best
interests of all the Banks.
(b) The Agent is not authorized to act on behalf of a Bank (without first
obtaining that Bank's consent) in any legal or arbitration proceedings
relating to any Finance Document.
19.5 DELEGATION
The Agent may act under the Finance Documents through its personnel and
agents.
19.6 RESPONSIBILITY FOR DOCUMENTATION
Neither the Agent nor the Arrangers are responsible to any other Party
for:-
(a) the execution, genuineness, validity, enforceability or
sufficiency of any Finance Document or any other document;
(b) the collectability of amounts payable under any Finance
Document; or
(c) the accuracy of any statements (whether written or oral) made
in or in connection with any Finance Document (including the
Information Memorandum).
19.7 DEFAULT
(a) The Agent is not obliged to monitor or enquire as to whether or not a
Default has occurred. Except for a Default under Clause 18.2, the Agent
will not be deemed to have knowledge of the occurrence of a Default.
However, if the Agent receives notice from a Party referring to
47
this Agreement, describing the Default and stating that the event is a
Default, it shall promptly notify the Banks.
(b) The Agent may require the receipt of security satisfactory to it,
whether by way of payment in advance or otherwise, against any
liability or loss which it will or may incur in taking any proceedings
or action arising out of or in connection with any Finance Document
before it commences those proceedings or takes that action.
19.8 EXONERATION
(a) Without limiting paragraph (b) below, the Agent will not be liable to
any other Party for any action taken or not taken by it under or in
connection with any Finance Document, unless directly caused by its
gross negligence or wilful misconduct.
(b) No Party may take any proceedings against any officer, employee or
agent of the Agent in respect of any claim it might have against the
Agent or in respect of any act or omission of any kind (including gross
negligence or wilful misconduct) by that officer, employee or agent in
relation to any Finance Document.
19.9 RELIANCE
The Agent may:-
(a) rely on any notice or document believed by it to be genuine
and correct and to have been signed by, or with the authority
of, the proper person;
(b) rely on any statement made by a director or employee of any
person regarding any matters which may reasonably be assumed
to be within his knowledge or within his power to verify; and
(c) engage, pay for and rely on legal or other professional
advisers selected by it (including those in the Agent's
employment and those representing a Party other than the
Agent).
19.10 CREDIT APPROVAL AND APPRAISAL
Without affecting the responsibility of any Obligor for information
supplied by it or on its behalf in connection with any Finance
Document, each Bank confirms that it:-
(a) has made its own independent investigation and assessment of
the financial condition and affairs of each Obligor and its
related entities in connection with its participation in this
Agreement and has not relied exclusively on any information
provided to it by the Agent or the Arrangers in connection
with any Finance Document; and
(b) will continue to make its own independent appraisal of the
creditworthiness of each Obligor and its related entities
while any amount is or may be outstanding under the Finance
Documents or any Commitment is in force.
48
19.11 INFORMATION
(a) The Agent shall promptly forward to the person concerned the original
or a copy of any document which is delivered to the Agent by a Party
for that person.
(b) The Agent shall promptly supply a Bank with a copy of each document
received by the Agent under Clause 4 (Conditions precedent), upon the
request and at the expense of that Bank.
(c) Except where this Agreement specifically provides otherwise, the Agent
is not obliged to review or check the accuracy or completeness of any
document it forwards to another Party.
(d) Except as provided above, the Agent has no duty:-
(i) either initially or on a continuing basis to provide any Bank
with any credit or other information concerning the financial
condition or affairs of any Obligor or of its related
entities, whether coming into its possession before, on or
after the date of this Agreement; or
(ii) unless specifically requested to do so by a Bank in accordance
with a Finance Document, to request any certificates or other
documents from any Obligor.
19.12 THE AGENT AND THE ARRANGERS INDIVIDUALLY
(a) If it is also a Bank, each of the Agent and the Arrangers have the same
rights and powers under this Agreement as any other Bank and may
exercise those rights and powers as though it were not the Agent or the
Arrangers.
(b) Each of the Agent and Arrangers may:-
(i) carry on any business with an Obligor or its related entities;
(ii) act as agent or trustee for, or in relation to any financing
involving, an Obligor or its related entities; and
(iii) retain any profits or remuneration in connection with its
activities under this Agreement or in relation to any of the
foregoing.
(c) In acting as the Agent, the agency division of the Agent will be
treated as a separate entity from its other divisions and departments.
Any information acquired by the Agent which, in its opinion, is
acquired by it otherwise than in its capacity as the Agent may be
treated as confidential by the Agent and will not be deemed to be
information possessed by the Agent in its capacity as such.
(d) Each Obligor irrevocably authorizes the Agent to disclose to the other
Finance Parties any information which, in the opinion of the Agent, is
received by it in its capacity as the Agent.
(e) The Agent may deduct from any amount received by it for the Banks pro
rata any unpaid fees, costs and expenses of the Agent incurred by it in
connection with the Finance Documents.
49
19.13 INDEMNITIES
(a) Without limiting the liability of any Obligor under the Finance
Documents, each Bank shall forthwith on demand indemnify the Agent for
that Bank's proportion of any liability or loss incurred by the Agent
in any way relating to or arising out of its acting as the Agent,
except to the extent that the liability or loss arises directly from
the Agent's gross negligence or wilful misconduct.
(b) A Bank's proportion of the liability or loss set out in paragraph (a)
above will be the proportion which the Original Swiss Franc Amount of
its participation in the Advances (if any) bear to all the Advances on
the date of the demand. However, if there are no Advances outstanding
on the date of demand, then the proportion will be the proportion which
its Commitment bears to the Total Commitments at the date of demand or,
if the Total Commitments have then been cancelled, bore to the Total
Commitments immediately before being cancelled.
19.14 COMPLIANCE
(a) The Agent may refrain from doing anything which might, in its opinion,
constitute a breach of any law or regulation or be otherwise actionable
at the suit of any person, and may do anything which, in its opinion,
is necessary or desirable to comply with any law or regulation of any
jurisdiction.
(b) Without limiting paragraph (a) above, the Agent need not disclose any
information relating to any Obligor or any of its related entities if
the disclosure might, in the opinion of the Agent, constitute a breach
of any law or regulation or any duty of secrecy or confidentiality or
be otherwise actionable at the suit of any person.
19.15 RESIGNATION OF THE AGENT
(a) Notwithstanding its irrevocable appointment, the Agent may resign by
giving notice to the Banks and the Borrower's Agent, in which case the
Agent may forthwith appoint one of its Affiliates as successor Agent
or, failing that, the Majority Banks may appoint a successor Agent.
(b) If the appointment of a successor Agent is to be made by the Majority
Banks but they have not, within 30 days after notice of resignation,
appointed a successor Agent which accepts the appointment, the Agent
may appoint a successor Agent.
(c) The resignation of the Agent and the appointment of any successor Agent
will both become effective only upon the successor Agent notifying all
the Parties that it accepts its appointment. On giving the
notification, the successor Agent will succeed to the position of the
Agent and the term "AGENT" will mean the successor Agent.
(d) The retiring Agent shall, at its own cost, make available to the
successor Agent such documents and records and provide such assistance
as the successor Agent may reasonably request for the purposes of
performing its functions as the Agent under this Agreement.
(e) Upon its resignation becoming effective, this Clause 19 shall continue
to benefit the retiring Agent in respect of any action taken or not
taken by it under or in connection with the
50
Finance Documents while it was the Agent, and, subject to paragraph (d)
above, it shall have no further obligations under any Finance Document.
(f) The Majority Banks may, by notice to the Agent, require it to resign in
accordance with paragraph (a) above. In this event, the Agent shall
resign in accordance with paragraph (a) above but it shall not be
entitled to appoint one of its Affiliates as successor Agent.
19.16 BANKS
(a) The Agent may treat each Bank as a Bank, entitled to payments under
this Agreement and as acting through its Facility Office(s) until it
has received not less than five Business Days' prior notice from that
Bank to the contrary.
(b) Each Bank, on the date on which it becomes a party to this Agreement,
represents to the Agent that it is:
(i) either:
(A) not resident in the United Kingdom for United Kingdom
tax purposes; or
(B) a "bank" as defined in section 840A of the Income and
Corporation Taxes Act 1988 and resident in the United
Kingdom; and
(ii) beneficially entitled to the principal and interest payable by
the Agent to it under this Agreement; and
(iii) an Approved Bank; and
(iv) a company within the meaning of article 2, paragraph 1 of the
Belgian Income Tax Code (1992)
and shall forthwith notify the Agent if any representation ceases to be
correct.
(c) The Agent may at any time, and shall if requested to do so by the
Majority Banks, convene a meeting of the Banks.
19.17 EXTRAORDINARY MANAGEMENT TIME AND RESOURCES
The Obligor shall within 5 Business Days of demand pay the Agent for
the cost of utilising its management time or other resources in
connection with:-
(a) any amendment, waiver, consent or suspension of rights (or any
proposal for any of the foregoing) requested by or on behalf
of a Borrower and relating to a Finance Document or a document
referred to in any Finance Document; or
(b) the occurrence of a Default; or
(c) the enforcement of, or the preservation of any rights under,
any Finance Document.
51
Any amount payable to the Agent under this Clause will be calculated on
the basis of such reasonable daily or hourly rates as the Agent may
notify to the Obligor, and is in addition to any fee paid or payable to
the Agent under Clause 20 (Fees).
20. FEES
20.1 AGENT'S FEE
The Borrowers' Agent shall pay to the Agent for its own account an
agency fee in the amount and on the dates agreed in the Fee Letter. The
agency fee is payable annually in advance.
20.2 COMMITMENT FEE
(a) The Borrowers' Agent shall pay in Swiss Francs to the Agent for
distribution to each Bank pro rata to the proportion its
(i) Tranche A Commitment bears to the Tranche A Total Commitments;
and
(ii) Tranche B Commitment bears to the Total Tranche B Commitments;
from time to time a commitment fee computed at a rate of
(i) in the case of Tranche A, 50 per cent. per annum of the
applicable Margin per annum (calculated in accordance with
Clause 8.5 (Calculation of Margin and utilisation fee) on the
undrawn, uncancelled amount of that Bank's Commitment during
the Tranche A Availability Period; and
(ii) in the case of Tranche B, 0.15 per cent. per annum on the
undrawn, uncancelled amount of the Bank's Commitment during
the Tranche B Availability Period.
For this purpose Advances are taken at their Original Swiss Franc
Amount.
(b) The commitment fee referred to in (a) above shall be calculated and
accrue from the Signing Date and shall be payable quarterly in arrears.
Accrued commitment fee shall also be payable to the Agent for the
relevant Bank(s) on the cancelled amount of its Tranche A Commitment or
Tranche B Commitment, as the case may be, at the time the cancellation
comes into effect.
20.3 MANAGEMENT FEE
The Borrowers' Agent shall pay to the Agent for distribution to the
Arrangers a management fee as stated in the Fee Letter.
20.4 UTILISATION FEE
(a) Each Obligor shall pay to the Agent in Swiss Francs, for distribution
to each Bank a utilisation fee on the Original Swiss Franc Amount of
all Advances outstanding on each day during any quarter in which the
Utilisation fee is payable in accordance with Clause 20.4(b) at the
rate per annum specified in Clause 8.5 (Margin and utilisation fee)
above.
(b) The utilisation fee is calculated and accrues from the Signing Date and
shall be payable:
52
(a) for Tranche A, in respect of each quarter during which the total
aggregate amount of Tranche A Advances exceeds 50 per cent. of Tranche
A Total Commitments; and
(b) for Tranche B, in respect of each quarter during which the total
aggregate amount of Tranche B Advances exceeds 50 per cent. of the
Tranche B Total Commitments,
quarterly in arrears on the same date that the Commitment Fee referred
to in Clause 20.2(b) above is paid. Accrued utilisation fee is also
payable to the Agent for the relevant Banks on the Final Maturity Date.
20.5 VAT
Any fee referred to in this Clause 20 is exclusive of any value added
tax or any other tax which might be chargeable in connection with that
fee. If any value added tax or other tax is so chargeable, it shall be
paid by the Obligor at the same time as it pays the relevant fee.
21. EXPENSES
21.1 INITIAL AND SPECIAL COSTS
The Company shall within 5 Business Days following demand pay the Agent
and the Arrangers the amount of all costs and expenses (including legal
fees) incurred by either of them in connection with:-
(a) the negotiation, preparation, printing and execution of:-
(i) this Agreement and any other documents referred to in
this Agreement; and
(ii) any other Finance Document (other than a Novation
Certificate) executed after the date of this
Agreement; and
(b) any amendment, waiver, consent or suspension of rights (or any
proposal for any of the foregoing) requested by or on behalf
of a Borrower or, in the case of Clause 2.4 (Change of
currency), the Agent, and relating to a Finance Document or a
document referred to in any Finance Document.
21.2 ENFORCEMENT COSTS
The Company shall within 5 Business Days following demand pay to each
Finance Party the amount of all costs and expenses (including legal
fees) incurred by it in connection with the enforcement of, or the
preservation of any rights under, any Finance Document.
22. STAMP DUTIES
The Company shall pay, and within 5 Business Days of demand indemnify
each Finance Party against any liability it incurs in respect of, any
stamp, registration and similar tax which is or becomes payable in
connection with the entry into, performance or enforcement of any
Finance Document.
53
23. INDEMNITIES
23.1 CURRENCY INDEMNITY
(a) If a Finance Party receives an amount in respect of an Obligor's
liability under the Finance Documents or if that liability is converted
into a claim, proof, judgment or order in a currency other than the
currency (the "CONTRACTUAL CURRENCY") in which the amount is expressed
to be payable under the relevant Finance Document:-
(i) that Obligor shall indemnify that Finance Party as an
independent obligation against any loss or liability arising
out of or as a result of the conversion;
(ii) if the amount received by that Finance Party, when converted
into the contractual currency at a market rate in the usual
course of its business is less than the amount owed in the
contractual currency, the Obligor concerned shall forthwith on
demand pay to that Finance Party an amount in the contractual
currency equal to the deficit; and
(iii) that Obligor shall forthwith on demand pay to the Finance
Party concerned any exchange costs and taxes payable in
connection with any such conversion.
(b) Each Obligor waives any right it may have in any jurisdiction to pay
any amount under the Finance Documents in a currency other than that in
which it is expressed to be payable.
23.2 OTHER INDEMNITIES
The Company shall forthwith on demand (but payment to be made within 5
Business Days of demand) indemnify each Finance Party against any loss
or liability which that Finance Party incurs as a consequence of:-
(a) the occurrence of any Default;
(b) a change in currency of a country or the operation of Clause
2.4 (Change of currency), Clause 18.17 (Acceleration) or
Clause 30 (Pro rata sharing);
(c) a failure by an Obligor to pay any sum due under a Finance
Document on its due date or any principal amount on a date
otherwise than on the Maturity Date of the Designated Term (as
defined in Clause 8.3) provided that in the case of a
prepayment made in accordance with Clause 7.3 (Voluntary
prepayment) or Clause 7.4 (Additional right of prepayment and
cancellation) it is agreed that the Break Costs shall satisfy
in full any claim that would otherwise be made in respect of
those prepayments under this paragraph (c); or
(d) an Advance (or part of an Advance) not being prepaid in
accordance with a notice of prepayment or (other than by
reason of negligence or default by that Finance Party) an
Advance not being made after a Borrower has delivered a
Request for that Advance.
54
The Obligor's liability in each case includes any loss of Margin or
other loss or expense on account of funds borrowed, contracted for or
utilised to fund any amount payable under any Finance Document, any
amount repaid or prepaid or any Advance.
24. MITIGATION BY THE BANKS
24.1 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 cancelled
pursuant to, any of Clause 11 (Taxes), Clause 13 (Increased Costs) and
Clause 14 (Illegality) including (but not limited to) transferring its
rights and obligations under the Finance Documents to another Affiliate
or Facility Office (which steps will include the transfer of its
rights, benefits and obligations under the Finance Documents to another
financial institution acceptable to the Company and willing to
participate in the Facility).
(b) Paragraph (a) above does not in any way limit the obligations of any
Obligor under the Finance Documents.
24.2 LIMITATION OF LIABILITY
(a) The Company 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 24.1.
(b) A Finance Party is not obliged to take any steps under Clause 24.1 if,
in the opinion of that Finance Party (acting reasonably), to do so
might be prejudicial to it.
25. EVIDENCE AND CALCULATIONS
25.1 ACCOUNTS
Accounts maintained by a Finance Party in connection with the Finance
Documents are prima facie evidence of the matters to which they relate.
25.2 CERTIFICATES AND DETERMINATIONS
Any certification or determination by a Finance Party of a rate or
amount under the Finance Documents is, in the absence of manifest
error, conclusive evidence of the matters to which it relates.
25.3 CALCULATIONS
Interest (including any applicable Mandatory Cost) and the fees payable
under Clause 20.2 (Commitment fee) and Clause 20.4 (Utilisation Fee)
accrue from day to day and are calculated on the basis of the actual
number of days elapsed and a year of 360 days or, in the case of
interest payable on an amount denominated in Sterling or where market
practice otherwise dictates, 365 days.
55
26. AMENDMENTS AND WAIVERS
26.1 PROCEDURE
(a) Subject to Clause 26.2 (Exceptions), any term of the Finance Documents
may be amended or waived with the agreement of the Borrowers' Agent and
the Majority Banks. The Agent may effect, on behalf of any Finance
Party, an amendment or waiver permitted under this Clause.
(b) The Agent shall promptly notify the other Parties of any amendment or
waiver effected under paragraph (a) above, and any such amendment or
waiver shall be binding on all the Parties.
26.2 EXCEPTIONS
(a) An amendment or waiver not agreed by a Bank and which relates to:-
(i) the definition of "MAJORITY BANKS" in Clause 1.1 (Definitions);
(ii) an extension of the date for, or a decrease in an amount or a
change in the currency of, any payment to that Bank under the
Finance Documents (including the Margin and any fee payable
under Clause 20.2 (Commitment fee) and Clause 20.4
(Utilisation fee));
(iii) an increase in that Bank's Commitment;
(iv) a term of a Finance Document which expressly requires the
consent of that Bank;
(v) Clause 2.3 (Nature of Finance Party's rights and obligations),
Clause 27.2 (Transfers by Banks), Clause 30 (Pro rata sharing)
or this Clause 26 (Amendments and Waivers); or
(vi) any release of the Company's liabilities under Clause 15
(Guarantee),
is not binding on that Bank.
(b) An amendment or waiver which affects the rights and/or
obligations of the Agent may not be effected without the
agreement of the Agent.
26.3 WAIVERS AND REMEDIES CUMULATIVE
The rights of each Finance Party under the Finance Documents:-
(a) may be exercised as often as necessary;
(b) are cumulative and not exclusive of its rights under the
general law; and
(c) may be waived only in writing and specifically.
Delay in exercising or non-exercise of any such right is not a
waiver of that right.
56
27. CHANGES TO THE PARTIES
27.1 TRANSFERS BY BORROWERS
No Borrower may assign, transfer, novate or dispose of any of, or any
interest in, its rights and/or obligations under the Finance Documents.
27.2 TRANSFERS BY BANKS
(a) A Bank (the "EXISTING BANK") may, subject to paragraph (b) below, at
any time assign, transfer or novate any of its Commitment and/or rights
and/or obligations under this Agreement to another bank or financial
institution (the "NEW BANK").
(b) (i) A transfer of part of a Commitment must be in a minimum amount
of at least CHF10,000,000;
(ii) except where an Event of Default has occurred which is
continuing and which has been notified as a default to the
Borrower's Agent, the prior consent of the Borrowers' Agent is
required for any such assignment, transfer or novation, unless
the New Bank is another Bank or an Affiliate of a Bank.
However, the prior consent of the Borrowers' Agent must not be
unreasonably withheld or delayed and will be deemed to have
been given if, within five days of receipt by the Borrowers'
Agent of an application for consent, it has not been expressly
refused; and
(iii) the assignment, transfer or novation is to an Approved Bank.
(c) A transfer of obligations will be effective only if either:-
(i) the obligations are novated in accordance with Clause 27.3
(Procedure for novations); or
(ii) the New Bank confirms to the Agent and the Obligor that it
undertakes to be bound by the terms of this Agreement as a
Bank in form and substance satisfactory to the Agent. On the
transfer becoming effective in this manner the Existing Bank
shall be relieved of its obligations under this Agreement to
the extent that they are transferred to the New Bank.
(d) Nothing in this Agreement restricts the ability of a Bank to
sub-contract an obligation if that Bank remains liable under
this Agreement for that obligation.
(e) On each occasion an Existing Bank assigns, transfers or novates any of
its Commitment and/or any of its rights and/or obligations under this
Agreement, the New Bank shall, on the date the assignment, transfer
and/or novation takes effect, pay to the Agent for its own account a
fee of CHF1500.
(f) An Existing Bank is not responsible to a New Bank for:-
(i) the execution, genuineness, validity, enforceability or
sufficiency of any Finance Document or any other document;
57
(ii) the collectability of amounts payable under any Finance
Document; or
(iii) the accuracy of any statements (whether written or oral) made
in or in connection with any Finance Document.
(g) Each New Bank confirms to the Existing Bank and the other Finance
Parties that it:-
(i) has made its own independent investigation and assessment of
the financial condition and affairs of each Borrower 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 Bank in connection with any
Finance Document; and
(ii) will continue to make its own independent appraisal of the
creditworthiness of each Borrower and its related entities
while any amount is or may be outstanding under this Agreement
or any Commitment is in force.
(h) Nothing in any Finance Document obliges an Existing Bank to:-
(i) accept a re-transfer from a New Bank of any of the Commitment
and/or rights and/or obligations assigned, transferred or
novated under this Clause; or
(ii) support any losses incurred by the New Bank by reason of the
non-performance by any Borrower of its obligations under the
Finance Documents or otherwise.
(i) Any reference in this Agreement to a Bank includes a New Bank
but excludes a Bank if no amount is or may be owed to or by it
under this Agreement and its Commitment has been cancelled or
reduced to nil.
(j) If:
(i) a Bank assigns or transfer or novates any of its rights or
obligations under the Finance Documents; and
(ii) as a result of circumstances existing at the date of the
assignment, transfer, novation or change, an Obligor would be
obliged to make a payment to the New Bank or Bank acting
through its new Facility Office under Clause 11 (Taxes) or
Clause 13 (Increased Costs),
then the New Bank is only entitled to receive payment under those
clauses to the same extent as the Existing Bank at the date of such
assignment or transfer would have been if the assignment, transfer,
novation or change had not occurred.
27.3 PROCEDURE FOR NOVATIONS
(a) A novation is effected if:-
(i) the Existing Bank and the New Bank deliver to the Agent a duly
completed certificate, substantially in the form of Schedule 4
(a "Novation Certificate"); and
(ii) the Agent executes it.
58
(b) Each Party (other than the Existing Bank and the New Bank) irrevocably
authorizes the Agent to execute any duly completed Novation Certificate
on its behalf.
(c) To the extent that they are expressed to be the subject of the novation
in the Novation Certificate:-
(i) the Existing Bank and the other Parties (the "existing
Parties") will be released from their obligations to each
other (the "discharged obligations");
(ii) the New Bank and the existing Parties will assume obligations
towards each other which differ from the discharged
obligations only insofar as they are owed to or assumed by the
New Bank instead of the Existing Bank;
(iii) the rights of the Existing Bank against the existing Parties
and vice versa (the "discharged rights") will be cancelled;
and
(iv) the New Bank and the existing Parties will acquire rights
against each other which differ from the discharged rights
only insofar as they are exercisable by or against the New
Bank instead of the Existing Bank,
all on the date of execution of the Novation Certificate by the Agent
or, if later, the date specified in the Novation Certificate.
27.4 RESIGNATION OF FICOMEXA
(a) The Borrowers' Agent may request that Ficomexa ceases to be a Borrower
by delivering to the Agent a resignation letter in the form set out in
Schedule 7 (Resignation Letter) (a "RESIGNATION LETTER").
(b) The Agent shall accept a Resignation Letter and notify the Borrowers'
Agent and the Banks of its acceptance if:
(i) no Default is continuing or would result from the acceptance
of the Resignation Letter (and the Borrowers' Agent has
confirmed this is the case); and
(ii) Ficomexa is under no actual or contingent obligations as a
Borrower under any Finance Documents (and the Borrowers' Agent
has confirmed that this is the case),
whereupon Ficomexa shall cease to be a Borrower and shall have no
further rights or obligations under the Finance Documents.
27.5 REFERENCE BANKS
If a Reference Bank (or, if a Reference Bank is not a Bank, the Bank of
which it is an Affiliate) ceases to be a Bank, the Agent shall (in
consultation with the Company) appoint another Bank or an Affiliate of
a Bank to replace that Reference Bank.
59
27.6 REGISTER
The Agent shall keep a register of all the Parties and shall supply any
other Party (at that Party's expense) with a copy of the register on
request.
28. DISCLOSURE OF INFORMATION
A Bank may disclose on a confidential basis to any one of its
Affiliates or any person with whom it is proposing to enter, or has
entered into, any kind of transfer, participation or other agreement in
relation to this Agreement:-
(a) a copy of any Finance Document; and
(b) any information which that Bank has acquired under or in
connection with any Finance Document.
29. SET-OFF
A Finance Party may set off any matured obligation owed by a Borrower
under the Finance Documents (to the extent beneficially owned by that
Finance Party) against any matured obligation owed by that Finance
Party to that Borrower, regardless of the place of payment, booking
branch or currency of either obligation. If the obligations are in
different currencies, the Finance Party may convert either obligation
at a market rate of exchange in its usual course of business for the
purpose of the set-off. If either obligation is unliquidated or
unascertained, the Finance Party may set off in an amount estimated by
it in good faith to be the amount of that obligation.
30. PRO RATA SHARING
30.1 REDISTRIBUTION
If any amount owing by a Borrower under the Finance Documents to a
Finance Party (the "RECOVERING FINANCE PARTY") is discharged by
payment, set-off or any other manner other than through the Agent in
accordance with Clause 10 (Payments) (a "RECOVERY"), then:-
(a) the recovering Finance Party shall, within three Business
Days, notify details of the recovery to the Agent;
(b) the Agent shall determine whether the recovery is in excess of
the amount which the recovering Finance Party would have
received had the recovery been received by the Agent and
distributed in accordance with Clause 10 (Payments);
(c) subject to Clause 30.3 (Exceptions), the recovering Finance
Party shall, within three Business Days of demand by the
Agent, pay to the Agent an amount (the "REDISTRIBUTION") equal
to the excess;
(d) the Agent shall treat the redistribution as if it were a
payment by the Borrower concerned under Clause 10 (Payments)
and shall pay the redistribution to the Finance Parties (other
than the recovering Finance Party) in accordance with Clause
10.7 (Partial payments); and
60
(e) after payment of the full redistribution, the recovering
Finance Party will be subrogated to the portion of the claims
paid under paragraph (d) above and that Borrower will owe the
recovering Finance Party a debt which is equal to the
redistribution, immediately payable and of the type originally
discharged.
30.2 REVERSAL OF REDISTRIBUTION
If under Clause 30.1 (Redistribution):-
(a) a recovering Finance Party must subsequently return a
recovery, or an amount measured by reference to a recovery, to
a Borrower; and
(b) the recovering Finance Party has paid a redistribution in
relation to that recovery,
each Finance Party shall, within three Business Days of demand by the
recovering Finance Party through the Agent, reimburse the recovering
Finance Party all or the appropriate portion of the redistribution paid
to that Finance Party together with interest on the amount to be
returned to the recovering Finance Party for the period whilst it held
the re-distribution. Thereupon, the subrogation in Clause 30.1(e)
(Redistribution) will operate in reverse to the extent of the
reimbursement.
30.3 EXCEPTIONS
(a) A recovering Finance Party need not pay a redistribution to the extent
that it would not, after the payment, have a valid claim against the
Borrower concerned in the amount of the redistribution pursuant to
Clause 30.1(e) (Redistribution).
(b) A recovering Finance Party is not obliged to share with any other
Finance Party any amount which the recovering Finance Party has
received or recovered as a result of taking legal proceedings, if the
other Finance Party had an opportunity to participate in those legal
proceedings but did not do so or did not take separate legal
proceedings.
31. VAT
(a) All payments made by an Obligor under the Finance Documents are
calculated without regard to VAT. If any such payment constitutes the
whole or any part of the consideration for a taxable or deemed taxable
supply (whether that supply is taxable pursuant to the exercise of an
option or otherwise) by the Agent or a Bank, the amount of that payment
shall be increased by an amount equal to the amount of VAT which is
chargeable in respect of the taxable supply in question.
(b) No payment or other consideration to be made or furnished by the Agent
or a Bank, to an Obligor pursuant to or in connection with the Finance
Documents or any transaction or document contemplated therein may be
increased or added to by reference to (or as a result of any increase
in the rate of) any VAT which shall be or may become chargeable in
respect of any taxable supply.
61
32. SEVERABILITY
If a provision of any Finance Document is or becomes illegal, invalid
or unenforceable in any jurisdiction, that shall not affect:-
(a) the legality, validity or enforceability in that jurisdiction
of any other provision of the Finance Documents; or
(b) the legality, validity or enforceability in other
jurisdictions of that or any other provision of the Finance
Documents.
33. 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.
34. NOTICES
34.1 GIVING OF NOTICES
All notices or other communications under or in connection with the
Finance Documents shall be given in writing and, unless otherwise
stated, may be made by letter, telex or facsimile. Any such notice will
be deemed to be given as follows:-
(a) if by letter, when delivered personally or on actual receipt;
(b) if by telex, when despatched, but only if, at the time of
transmission, the correct answerback appears at the start and
at the end of the sender's copy of the notice; and
(c) if by facsimile, when received in legible form.
However, a notice given in accordance with the above but received on a
non-working day or after business hours in the place of receipt will
only be deemed to be given on the next working day in that place. A
second copy of any notice to the Company is to be sent to the second
address for the Company set out in Clause 34.2. A copy of any notice to
Ficomexa is to be sent to the Company in accordance with the provisions
of this Clause 34.1.
34.2 ADDRESSES FOR NOTICES
(a) The address, telex number and facsimile number of each Party (other
than the Obligor and the Agent) for all notices under or in connection
with the Finance Documents are:-
(i) those notified by that Party for this purpose to the Agent on
or before the date it becomes a Party; or
(ii) any other notified by that Party for this purpose to the Agent
by not less than five Business Days' notice.
(b) The address, telex number and facsimile number of the Obligors are:-
62
Adecco SA
c/o Adecco Management and Consulting XX
Xxx xx Xxxxxxxxxxx 00
XX Xxx 00
XX-0000 Xxxxxxxx 4
Switzerland
Attn: Xxxxx Xxxxxxx
Fax No: 00 00 00 000 00 00
cc: Adecco SA
000 Xxxxxxx Xxxxxx Xxxxxxx
Xxxxxxx Xxxx
Xxxxxxxxxx XX 00000
XXX
Attn: Xxxxx Xxxxx
Fax No: 00 0 000 000 0000
Ficomexa Coordination Center SA
Xxxxxxxxxxxx 00
X-0000 Xxxxxx
Xxxxxxx
Attn: Xxxx van Assche
Fax No: 00 00 0 000 00 00
or such other as the Obligor may notify to the Agent by not less than
five Business Days' notice.
(c) The address, telex number and facsimile number of the Agent are:-
Bank of America International Limited
0 Xxxx Xxxxxx
Xxxxxx X0 0XX
Attention:- Loans Agency
Fax No: x00 000 000 0000
or such other as the Agent may notify to the other Parties by not less
than five Business Days' notice.
(d) All notices from or to a Borrower shall be sent through the Agent.
(e) The Agent shall, promptly upon request from any Party, give to that
Party the address, telex number or facsimile number of any other Party
applicable at the time for the purposes of this Clause.
63
35. LANGUAGE
(a) Any notice given under or in connection with any Finance Document shall
be in English.
(b) All other documents provided under or in connection with any Finance
Document shall be:-
(i) in English; or
(ii) if not in English, accompanied by a certified English
translation and, in this case, the English translation shall
prevail unless the document is a statutory or other official
document.
36. JURISDICTION
36.1 SUBMISSION
For the benefit of each Party, each other Party agrees that the courts
of England have jurisdiction to settle any disputes in connection with
any Finance Document and accordingly irrevocably submits to the
jurisdiction of the English courts.
36.2 SERVICE OF PROCESS
Without prejudice to any other mode of service, each Obligor:-
(a) irrevocably appoints Adecco UK Limited of Xxxxxx Xxxxx,
Xxxxxxx Xxx, Xxxxxxxxxxx, Xxxxxxxxxxxxx XX0 0XX Attn: The
Company Secretary as its agent for service of process in
relation to any proceedings before the English courts in
connection with any Finance Document;
(b) agrees that failure by a process agent to notify the relevant
Obligor of the process will not invalidate the proceedings
concerned;
(c) consents to the service of process relating to any such
proceedings by prepaid posting of a copy of the process to its
address for the time being applying under Clause 34.2
(Addresses for notices); and
(d) agrees that if the appointment of any person mentioned in
paragraph (a) above ceases to be effective, the relevant
Obligor shall immediately appoint a further person in England
to accept service of process on its behalf in England and,
failing such appointment within 15 days, the Agent is entitled
to appoint such a person by notice to the Borrowers.
36.3 FORUM CONVENIENCE AND ENFORCEMENT ABROAD
Each Obligor:-
(a) waives objection to the English courts on grounds of
inconvenient forum or otherwise as regards proceedings in
connection with a Finance Document; and
64
(b) agrees that a judgment or order of an English court in
connection with a Finance Document is conclusive and binding
on it and may be enforced against it in the courts of any
other jurisdiction.
36.4 NON-EXCLUSIVITY
Nothing in this Clause 35 limits the right of a Finance Party to bring
proceedings against a Borrower in connection with any Finance
Document:-
(a) in any other court of competent jurisdiction; or
(b) concurrently in more than one jurisdiction.
37. WAIVER OF IMMUNITY
Each Borrower irrevocably and unconditionally:-
(a) agrees that if a Finance Party brings proceedings against it
or its assets in relation to a Finance Document, no immunity
from those proceedings (including, without limitation, suit,
attachment prior to judgment, other attachment, the obtaining
of judgment, execution or other enforcement) will be claimed
by or on behalf of itself or with respect to its assets; and
(b) waives any such right of immunity which it or its assets now
has or may subsequently acquire.
38. GOVERNING LAW
This Agreement is governed by English law.
This Agreement has been entered into on the date stated at the beginning of this
Agreement.
65
SCHEDULE 1
BANKS AND COMMITMENTS
COMMITMENTS
BANKS COLUMN 1 COLUMN 2
TRANCHE A COMMITMENTS TRANCHE B COMMITMENTS
CHF CHF
Bank of America N.A. 64,000,008 31,999,998
Societe Generale 64,000,008 31,999,998
Banque Nationale de Paris 59,333,332 29,666,667
(Switzerland) Ltd
Caisse Nationale des Caisses d'epargne et de 59,333,332 29,666,667
Prevoyance
Credit Agricole d'Ile-de-France 59,333,332 29,666,667
Credit Agricole Indosuez 59,333,332 29,666,667
Credit Lyonnais S.A. 59,333,332 29,666,667
Credit Suisse First Boston, London Branch 59,333,332 29,666,667
Deutsche Bank Luxembourg S.A. 59,333,332 29,666,667
Fleet National Bank 59,333,332 29,666,667
Fortis Bank NV/SA 59,333,332 29,666,667
Natexis Banque 59,333,332 29,666,667
National Westminster Bank Plc 59,333,332 29,666,667
Westdeutsche Landesbank Girozentrale Succursale 59,333,332 29,666,667
de Paris
Banco Santander Central Hispano (Paris Branch) 30,000,000 15,000,000
Paribas (Suisse) SA 30,000,000 15,000,000
Barclays Bank 30,000,000 15,000,000
66
Mellon Bank, N.A. 30,000,000 15,000,000
Banco Popolare di Bergamo - Credito Varesino 20,000,000 10,000,000
s.c.r.l.
Succursale xx Xxxx
Banque Bruxelles Xxxxxxx (France) 20,000,000 10,000,000
----------------- -----------------
TOTAL 1,000,000,000 500,000,000
------------------ ------------------
67
SCHEDULE 2
CONDITIONS PRECEDENT DOCUMENTS
TO BE DELIVERED BEFORE THE FIRST ADVANCE
1. A copy of the constitutional documents of each Obligor.
2. A copy of a resolution of the board of directors of each Obligor
approving the terms of, and the transactions contemplated by, this
Agreement.
3. A specimen of the signature of each person authorized to sign this
Agreement on behalf of each Obligor and to sign and/or despatch all
documents and notices to be signed and/or despatched by each Obligor
under or in connection with this Agreement.
4. Evidence that the process agents referred to in Clause 36.2 (Service of
process) has/have accepted its/their appointment(s) under that Clause.
5. A copy of any other authorization or other document, opinion or
assurance which the Agent considers to be necessary in connection with
the entry into and performance of, and the transactions contemplated
by, any Finance Document or for the validity and enforceability of any
Finance Document.
6. A certificate of an authorized signatory of the Obligor certifying that
each copy document delivered under this Schedule 2 is correct, complete
and in full force and effect as at a date no earlier than the date of
this Agreement.
7. (a) A legal opinion of Xxxxxxxxx & Xxxxxxxx, legal advisers in
Switzerland to the Company, addressed to the Finance Parties;
(b) a legal opinion of Stibbe Simont Xxxxxxx Duhot, legal advisers
in Belgium to Ficomexa, addressed to the Finance Parties; and
(c) a legal opinion of Xxxxx & Overy, legal advisers in England to
Arrangers and the Agent, substantially in the form distributed
to the Banks prior to signing this Agreement, addressed to the
Finance Parties.
(d) a legal opinion of Loeff Xxxxxx Xxxxxxx, legal advisers in
Belgium to the Arrangers and the Agent, substantially in the
form distributed to the Banks prior to signing this Agreement,
addressed to the Finance Parties.
(e) a legal opinion of Xxxxxxxx Kraft & Xxxx, legal advisers in
Switzerland to the Arrangers and the Agent substantially in
the form distributed to the Banks prior to signing this
Agreement, addressed to the Finance Parties.
68
SCHEDULE 3
FORM OF REQUEST
To: BANK OF AMERICA INTERNATIONAL LIMITED as Agent
From: [ADECCO SA/FICOMEXA COORDINATION CENTER SA]
Date: [ ]
ADECCO SA CHF[AMOUNT] CREDIT AGREEMENT dated [DATE]
1. We wish to borrow a [Tranche A/Tranche B] Advance as follows:-
(a) Drawdown Date: [ ]
(b) Amount: [ ]
(c) Currency: [ ]
(d) Term: [ ]
(e) Payment instructions: [ ].
2. We confirm that each condition specified in Clause 4.2 (Further
conditions precedent) is satisfied on the date of this Request.
By:
[ADECCO SA/FICOMEXA COORDINATION CENTER SA]
Authorized Signatory
69
SCHEDULE 4
FORM OF NOVATION CERTIFICATE
To: BANK OF AMERICA INTERNATIONAL LIMITED as Agent
From: [THE EXISTING BANK] and [THE NEW BANK] Date: [ ]
ADECCO SA CHF1,500,000,000 CREDIT AGREEMENT DATED [DATE]
We refer to Clause 27.3 (Procedure for novations).
1. We [ ] (the "EXISTING BANK") and [ ] (the "NEW BANK") agree to the
Existing Bank and the New Bank novating the Existing Bank's Commitment
(or part) and/or rights and obligations referred to in the Schedule in
accordance with Clause 27.3 (Procedure for novations).
2. The specified date for the purposes of Clause 27.3(c) (Procedure for
novations) is [date of novation].
3. The Facility Office and address for notices of the New Bank for the
purposes of Clause 34.2 (Addresses for notices) are set out in the
Schedule.
4. Each New Bank warrants that it is an Approved Bank as at the date it
executed this Certificate.
5. This Novation Certificate is governed by English law.
THE SCHEDULE
COMMITMENT/RIGHTS AND OBLIGATIONS TO BE NOVATED
[Insert relevant details]
[Existing Bank] [New Bank]
By: By:
Date: Date:
[New Bank]
[Facility Office Address for notices]
[AGENT]
By:
Date:
70
71
SCHEDULE 5
MANDATORY COST FORMULAE
1. The Mandatory Cost is an addition to the interest rate to compensate
Banks 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 Bank, in accordance with the paragraphs
set out below. The Mandatory Cost will be calculated by the Agent as a
weighted average of the Additional Cost Rates (weighted in proportion to
the percentage participation of each Bank in the relevant Advance) and
will be expressed as a percentage rate per annum.
3. The Additional Cost Rate for any Bank lending from a Facility Office in
a Participating Member State will be the percentage notified by that
Bank to the Agent as the cost of complying with the minimum reserve
requirements of the European Central Bank.
4. The Additional Cost Rate for any Bank lending from a Facility Office in
the United Kingdom will be calculated by the Agent as follows:
(a) in relation to a sterling Advance:
AB + C(B - D) + E x 0.01
------------------------per cent. per annum
100 - (A + C)
(b) in relation to a Advance in any currency other than sterling:
E x 0.01
--------per cent. per annum.
300
Where:
A is the percentage of Eligible Liabilities (assuming these to
be in excess of any stated minimum) which that Bank is from
time to time required to maintain as an interest free cash
ratio deposit with the Bank of England to comply with cash
ratio requirements.
B is the percentage rate of interest (excluding the Margin and
the Mandatory Cost) payable for the relevant Term to that
Bank.
C is the percentage (if any) of Eligible Liabilities which that
Bank is required from time to time to maintain as interest
bearing Special Deposits with the Bank of England.
72
D is the percentage rate per annum payable by the Bank of
England to the Agent on interest bearing Special Deposits.
E is the rate of charge payable by that Banks to the Financial
Services Authority pursuant to the Fees Regulations (but, for
this purpose, ignoring any minimum fee required pursuant to
the Fees Regulations) and expressed in pounds per L1,000,000
of the Fee Base of that Bank.
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 REGULATIONS" means the Banking Supervision (Fees)
Regulations 1999 or such other law or regulation as may be in
force from time to time in respect of the payment of fees for
banking supervision; and
(c) "FEE BASE" has the meaning given to it, and will be calculated
in accordance with, the Fees Regulations.
6. In application of the above formulae, A, B, C and D will be included in
the formulae as percentages (i.e. 5 per cent. will be included in the
formula as 5 and not as 0.05). A negative result obtained by
subtracting D from B shall be taken as zero. The resulting figures
shall be rounded to four decimal places.
7. Each Bank shall supply any information required by the Agent for the
purpose of calculating its Additional Cost Rate. In particular, but
without limitation, each Bank shall supply the following information in
writing on or prior to the date on which it becomes a Lender:
(a) its jurisdiction of incorporation and the jurisdiction of its
Facility Office; and
(b) any other information that the Agent may reasonably require
for such purpose.
Each Bank shall promptly notify the Agent in writing of any change to
the information provided by it pursuant to this paragraph.
8. The percentages or rates of charge of each Bank for the purpose of A, C
and E above shall be determined by the Agent based upon the information
supplied to it pursuant to paragraph 7 above and on the assumption that,
unless a Bank notifies the Agent to the contrary, each Bank's
obligations in relation to cash ratio deposits, Special Deposits and the
Fees Regulations are the same as those of a typical bank from its
jurisdiction of incorporation with a Facility Office in the same
jurisdiction as its Facility Office.
9. The Agent shall have no liability to any person if such determination
results in an Additional Cost Rate which over or under compensates any
Bank and shall be entitled to assume that the
73
information provided by any Bank pursuant to paragraphs 3 and 7 above
is true and correct in all respects.
10. The Agent shall distribute the additional amounts received as a result
of the Mandatory Cost to the Banks on the basis of the Additional Cost
Rate for each Bank based on the information provided by each Bank
pursuant to paragraphs 3 and 7 above.
11. 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 Bank shall, in the absence of manifest error, be
conclusive and binding on all Parties.
12. The Agent may from time to time, after consultation with the Company and
the Banks, 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.
74
SCHEDULE 6
SCHEDULE OF SECURITY INTERESTS
-------- ----------------------- ------------------------ --------------------------------- ----------------------------
NO. COMPANY MAXIMUM TYPE OF SECURED ASSETS SECURITY HOLDER
GRANTING SECURITY PRINCIPAL AMOUNT
SECURED(WHETHER
UTILISED OR NOT)
-------- ----------------------- ------------------------ --------------------------------- ----------------------------
1. Ficomexa Coordination 301,000,000 BeF General Security Agreement Generale de Banque
Center
-------- ----------------------- ------------------------ --------------------------------- ----------------------------
2. Ecco Servicios de MXP 901,923 Blocked Account Banco Inverlat
Personal, SA de CV
(Mexico)
-------- ----------------------- ------------------------ --------------------------------- ----------------------------
3. TS Consultants B.V. NLG 3,811,000 (i) pledge of receivables and Generale Bank
(Netherlands) assets
(ii) subordination and
pledge of NLG
785,000 loan
given by Adecco
Nederland Bebeer
BV
-------- ----------------------- ------------------------ --------------------------------- ----------------------------
4. Adecco Xxxx NLG 1,270,000 Pledge of receivables Rabobank
(Netherlands)
-------- ----------------------- ------------------------ --------------------------------- ----------------------------
5. Serviat Welten NLG 500,000 Pledge of receivables Rabobank
(Netherlands)
-------- ----------------------- ------------------------ --------------------------------- ----------------------------
6. Van Heijningengroep NLG 350,000 Pledge of assets and receivables Rabobank
-------- ----------------------- ------------------------ --------------------------------- ----------------------------
7. Adecco Societa di ITL 700,000,000 Blocked Account Banca Popolare Commercio e
Fornitura de Lauoro Industria
Temporareo SpA (Italy)
-------- ----------------------- ------------------------ --------------------------------- ----------------------------
8. Roevin Technical Cdn$1,700,000 (i) All assets except real Royal Bank of Canada
People Limited property
(Canada)
(ii) General Assignment of Book
Debts
-------- ----------------------- ------------------------ --------------------------------- ----------------------------
75
-------- ----------------------- ------------------------ --------------------------------- ----------------------------
NO. COMPANY MAXIMUM TYPE OF SECURED ASSETS SECURITY HOLDER
GRANTING SECURITY PRINCIPAL AMOUNT
SECURED(WHETHER
UTILISED OR NOT)
-------- ----------------------- ------------------------ --------------------------------- ----------------------------
9. Roevin Management L800,000 (i) Individual Company Royal Bank of Canada
Services Limited Debentures
Professional and
Technical Resources
Limited, Roevin KPJ (ii) Legal Charges on four
Limited and TAD properties owned by Roevin
Technical Services Management Services Limited
Limited
(iii) Fixed and Floating
Charge over all assets of
Roevin Management Services
Limited
-------- ----------------------- ------------------------ --------------------------------- ----------------------------
10. Adecco Argentina US$36,000 Blocked Account Banco de la Nacion
-------- ----------------------- ------------------------ --------------------------------- ----------------------------
11. Adecco Colombia US$80,000 Personal Guarantee of General Banco de Bogota
Manager
US$80,000 Personal Guarantee of General Banco de Occidente
Manager
-------- ----------------------- ------------------------ --------------------------------- ----------------------------
12. Adecco Australia Group Aus$1,143,063 Blocked Deposit Commonwealth Bank of
Australia
-------- ----------------------- ------------------------ --------------------------------- ----------------------------
-------- ----------------------- ------------------------ --------------------------------- ----------------------------
13. Adecco Career Staff Y210,000,000 Pledge of 50,000 shares of Asahi Bank Kojimachi
Ltd (Japan) Asahi Bank
Y300,000,000 Pledge of 10,000 IBJ Shares Industrial Bank of Japan
Y200,000,000 Mortgage of property owned Sanwa Bank
Y255,000,000 Mortgage of real estate Sanwa Bank
Y75,000,000 (i) Mortgage over Nippon Life Insurance
Higashi-Kurume Corporate
Apartment
(ii) Pledge of shares of
Yokohama Bank, Hyakujushi
Bank, Tokyo-Mitsubishi
Bank and Sakura Bank
-------- ----------------------- ------------------------ --------------------------------- ----------------------------
76
-------- ----------------------- ------------------------ --------------------------------- ----------------------------
NO. COMPANY MAXIMUM TYPE OF SECURED ASSETS SECURITY HOLDER
GRANTING SECURITY PRINCIPAL AMOUNT
SECURED(WHETHER
UTILISED OR NOT)
-------- ----------------------- ------------------------ --------------------------------- ----------------------------
14. Adia Services, Inc. Under the securitisation
arrangements relating to the
outright sale of the
receivables of Adia Financial
Services Inc as is common in
arrangements of this type,
there is a fallback clause such
that if the sale transaction is
recharacterised as a financing,
it will then take effect as a
security agreement conferring
security over the receivables
sold and related rights and
collections by Adia Financial
Services Inc in favour of
Enterprise Funding
Corporation. In addition a
floating charge security
interest has been granted by
Adia Financial Services Inc
over the receivables acquired
to Enterprise Funding
Corporation.
-------- ----------------------- ------------------------ --------------------------------- ----------------------------
77
SCHEDULE 7
FORM OF RESIGNATION LETTER
To: BANK OF AMERICA INTERNATIONAL LIMITED as Agent
From: [ADECCO SA AND FICOMEXA COORDINATION CENTER SA
Dated:
Dear Sirs
ADECCO S.A. - CHF1,500,000,000
DATED [ ] (THE "FACILITY AGREEMENT")
1. Pursuant to Clause 27.4 (Resignation of Ficomexa), we request that
Ficomexa be released from its obligations as a Borrower under the
Facility Agreement.
2. We confirm that:
(a) no Default is continuing or would result from the acceptance
of this request; and
(b) Ficomexa is under no actual or contingent obligations as a
Borrower under any Finance Documents.
3. This letter is governed by English law.
Adecco S.A. Ficomexa Coordination Center SA
By: By:
78
SIGNATORIES
GUARANTOR
ADECCO SA
By: ITS LAWFUL ATTORNEYS
/S/XXXX XXXXXX
/S/XXXXX XXXXX
BORROWERS
ADECCO SA
By: ITS LAWFUL ATTORNEYS
/S/XXXX XXXXXX
/S/XXXXX XXXXX
FICOMEXA COORDINATION CENTER SA
By: ITS LAWFUL ATTORNEYS
/s/XXXX XXXXXX
/s/XXXXX XXXXX
ARRANGERS
BANK OF AMERICA INTERNATIONAL LIMITED
By: /s/XXXXXX XXXXXXX
SOCIETE GENERALE
By: /s/XXXXXXXX XXXXXXX
79
BANKS:
BANK OF AMERICA N.A.
By: /s/XXXXXX XXXXXXX
SOCIETE GENERALE
By: /s/XXXXXXXX XXXXXXX
BANQUE NATIONALE DE PARIS
(SWITZERLAND) LTD
By: /s/XXXXXXXX XXXXXXX
XXXXXX NATIONALE DES CAISSES D'EPARGNE ET DE PREVOYANCE
By: /s/XXXXXXXX XXXXXXX
CREDIT AGRICOLE INDOSUEZ
By: /s/XXXXXXXX XXXXXXX
CREDIT AGRICOLE D'ILE-DE-FRANCE
By: /s/XXXXXXXX XXXXXXX
CREDIT LYONNAIS S.A.
By: /s/XXXXXXXX XXXXXXX
CREDIT SUISSE FIRST BOSTON, LONDON BRANCH
By: /s/XXXXXXXX XXXXXXX
DEUTSCHE BANK LUXEMBOURG S.A.
By: /s/XXXXXXXX XXXXXXX
FLEET NATIONAL BANK
80
By: /s/XXXXXX XXXXXXX
FORTIS BANK NV/SA
By: /s/XXXXXX XXXXXXX
NATEXIS BANQUE
By: /s/XXXXXX XXXXXXX
NATIONAL WESTMINSTER BANK PLC
By: /s/XXXXXX XXXXXXX
WESTDEUTSCHE LANDESBANK GIROZENTRALE SUCCURSALE DE PARIS
By: /s/XXXXXX XXXXXXX
BANCO SANTANDER CENTRAL HISPANO (PARIS BRANCH)
By: /s/ALAIN XXXXXXXX XXXXXXX DEL XXXXX
[XXXX XXXXX]
PARIBAS (SUISSE) SA
By: /s/XXXXXX XXXXXXX
BARCLAYS BANK PLC
By: /s/XXXXXX XXXXXXX
MELLON BANK, N.A.
By: /s/XXXXXX XXXXXXX
BANCO POPOLARE DI BERGAMO - CREDITO VARESINO S.C.R.L.
SOCCURSALE XX XXXX
By: /s/XXXXXX XXXXXXX
00
XXXXXX XXXXXXXXX XXXXXXX (XXXXXX)
By: /s/XXXXXX XXXXXXX
AGENT
BANK OF AMERICA INTERNATIONAL LIMITED
By: /s/XXXXXX XXXXXXX
