CONFORMED COPY
TRANSWORLD HOLDINGS (UK) LIMITED
AS PARENT
TRANSWORLD HEALTHCARE (UK) LIMITED
AS ORIGINAL BORROWER
AND
TRANSWORLD HOLDINGS (UK) LIMITED
TRANSWORLD HEALTHCARE (UK) LIMITED
OMNICARE LIMITED
ALLIED MEDICARE LIMITED
AMCARE LIMITED
ALLIED OXYCARE LIMITED
NOVACARE (UK) LIMITED
AS ORIGINAL GUARANTORS
PARIBAS
AS ARRANGER
PARIBAS
AS UNDERWRITERS
PARIBAS
AS AGENT
BARCLAYS BANK PLC
AS SECURITY AGENT
AND
OTHERS
----------------------------------------------
(Pounds)10,000,000
MEZZANINE CREDIT AGREEMENT
----------------------------------------------
XXXXXXXX CHANCE
CONTENTS
CLAUSE PAGE
1. Definitions And Interpretation..........................................1
2. The Facility...........................................................24
3. Utilisation............................................................25
4. Interest Periods.......................................................26
5. Payment And Calculation Of Interest....................................27
6. Market Disruption And Alternative Interest Rates.......................28
7. Notification...........................................................29
8. Repayment..............................................................30
9. Mandatory Prepayment...................................................30
10. Cancellation And Voluntary Prepayment..................................32
11. Taxes..................................................................33
12. Tax Receipts...........................................................35
13. Increased Costs........................................................37
14. Illegality.............................................................38
15. Mitigation.............................................................38
16. Representations........................................................39
17. Financial Information..................................................46
18. Other Information......................................................50
19. Financial Condition....................................................50
20. Covenants..............................................................60
21. Events Of Default......................................................68
22. Guarantee And Indemnity................................................74
23. Commitment Commission And Fees.........................................77
24. Costs And Expenses.....................................................78
25. Default Interest And Break Costs.......................................79
26. Parent's Indemnities...................................................80
27. Currency Of Account And Payment........................................82
28. Payments...............................................................82
29. Set-Off................................................................83
30. Sharing................................................................84
31. The Agent, The Arranger, The Underwriters And The Banks................85
32. Assignments And Transfers..............................................90
33. Additional Borrowers...................................................92
34. Additional Guarantors..................................................93
35. Calculations And Evidence Of Debt......................................94
36. Remedies And Waivers, Partial Invalidity...............................95
37. Notices................................................................95
38. Counterparts...........................................................96
39. Amendments.............................................................97
40. Governing Law..........................................................98
41. Jurisdiction...........................................................98
Schedule 1 THE BANKS........................................................100
Schedule 2 FORM OF TRANSFER CERTIFICATE.....................................101
Schedule 3 CONDITIONS PRECEDENT.............................................104
Schedule 4 NOTICE OF DRAWDOWN...............................................109
Schedule 5 FORM OF COMPLIANCE CERTIFICATE...................................111
Schedule 6 FORM OF BORROWER ACCESSION MEMORANDUM............................112
Schedule 7 FORM OF GUARANTOR ACCESSION MEMORANDUM...........................114
Schedule 8 ADDITIONAL CONDITIONS PRECEDENT..................................116
Schedule 9 FORM OF RESIGNATION NOTICE.......................................118
Schedule 10 ASSOCIATED COSTS RATE...........................................119
Schedule 11 FORM OF CLOSING CERTIFICATE.....................................121
THIS AGREEMENT is made on 17 December 1999
BETWEEN
(1) TRANSWORLD HOLDINGS (UK) LIMITED a company incorporated in England and
Wales with company registration number 3890177 (the "PARENT");
(2) TRANSWORLD HEALTHCARE (UK) LIMITED (a company incorporated in England and
Wales with company registration number 03370146) in its capacity as
borrower hereunder (the "ORIGINAL BORROWER");
(3) TRANSWORLD HOLDINGS (UK) LIMITED, TRANSWORLD HEALTHCARE (UK) LIMITED,
OMNICARE LIMITED, ALLIED MEDICARE LIMITED, AMCARE LIMITED, ALLIED OXYCARE
LIMITED and NOVACARE (UK) LIMITED (the "ORIGINAL GUARANTORS");
(4) PARIBAS as arranger of the Facilities (the "ARRANGER");
(5) PARIBAS as agent for the Banks (the "AGENT");
(6) BARCLAYS BANK PLC as security agent for and on behalf of the Finance
Parties (as defined below) (the "SECURITY AGENT"); and
(7) THE BANKS (as defined below).
IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"ACCESSION MEMORANDUM" means a Borrower Accession Memorandum or a
Guarantor Accession Memorandum.
"ACCOUNTANTS REPORT" means the long form report by PricewaterhouseCoopers
dated December 1999 in relation to the Business in the agreed form which
deals with, among other things, the tax and VAT treatment of the Group.
"ACCOUNT DEBTOR" in relation to any person, means any other person who is
or may become obligated to such first mentioned person under, with
respect to, or on account of, a receivable.
"ACQUISITION COSTS" means all fees, out-of-pocket costs and expenses,
stamp, registration and other taxes incurred by the Parent or any other
member of the Group in connection with the Facility, the Mezzanine
Warrant Instrument and the Finance Documents.
"ADDITIONAL BORROWER" means any company which has become an Additional
Borrower in accordance with Clause 33 (Additional Borrowers).
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"ADDITIONAL GUARANTOR" means any company which has become an Additional
Guarantor in accordance with Clause 34 (Additional Guarantors).
"ADDITIONAL OBLIGOR" means an Additional Borrower or Additional
Guarantor.
"ADVANCE" means, save as otherwise provided herein, the advance (as from
time to time reduced by prepayment) made or to be made by the Banks
hereunder.
"APPLICABLE TREATY" means a double tax treaty or convention relating to
the relief from double taxation on income and capital.
"APPLICABLE TREATY BANKS" means a Bank acting out of a Facility Office to
which payments pursuant to this Agreement by a Borrower may be made free
and clear of any deduction or withholding on account of any taxes of, or
imposed by, the country of incorporation of such Borrower, pursuant to an
Applicable Treaty (assuming all relevant forms have been duly completed
and any necessary direction made).
"ASSOCIATED COSTS RATE" means, in relation to each Advance or Unpaid Sum,
the percentage rate from time to time determined by the Agent in
accordance with Schedule 11 (Associated Costs Rate).
"AUTHORISED SIGNATORY" means, in relation to an Obligor or proposed
Obligor, any person who is duly authorised (in such manner as may be
reasonably acceptable to the Agent) to sign, seal or execute documents on
behalf of such Obligor and to take such action as is required of an
Authorised Signatory under the Finance Documents and in respect of whom
the Agent has received a certificate signed by a director or another
Authorised Signatory of such Obligor or proposed Obligor setting out the
name and signature of such person and confirming such person's authority
to act.
"AVAILABLE CASH" means cash from time to time, standing to the credit of
the Acquisition Expenditure Account in the name of the Borrower.
"AVAILABLE COMMITMENT" means, in relation to a Bank at any time and save
as otherwise provided herein, its Commitment at such time LESS the
aggregate of its share of the Sterling Amount of the Advances which are
then outstanding.
"AVAILABLE FACILITY" means, at any time, the aggregate amount of the
Available Commitments adjusted, in the case of any proposed utilisation,
so as to take into account any reduction in the Commitment of a Bank on
or before the proposed Utilisation Date relating to such utilisation.
"AVAILABILITY PERIOD" means the period from the date hereof to and
including the earlier of (a) five days from the date hereof and (b) the
first Business Day on which the Available Commitment of each of the Banks
is zero.
"BANK" means any financial institution:
(a) named in Schedule 1 (The Banks); or
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(b) which has become a party hereto in accordance with the provisions
of Clause 32.4 (Assignments by Banks) or 32.5 (Transfers by
Banks),
and which has not ceased to be a party hereto in accordance with the
terms hereof.
"BORROWER" means the Original Borrower and each Additional Borrower,
PROVIDED THAT such company has not been released from its rights and
obligations hereunder in accordance with Clause 33.3 (Resignation of a
Borrower).
"BORROWER ACCESSION MEMORANDUM" means a memorandum substantially in the
form set out in Schedule 6 (Form of Borrower Accession Memorandum).
"BUDGET" means, in relation to the Group and the period starting no later
than the date of this Agreement and ending 30 September 2004, the
Business Plan, and in relation to each successive twelve (12) month
period thereafter:
(a) a projected balance sheet;
(b) a projected profit and loss account;
(c) a projected cash flow statement; and
(d) a projected covenant calculation relating to each financial
undertaking contained in Clause 19.1 (Financial Covenants).
"BUSINESS" means the provision of healthcare services to the community
and NHS Trust falling into the following divisions:
(a) the supply of nurses and carers to the NHS local authorities,
private nursing homes, industry and private individuals;
(b) the supply of ostomy and urology products; and
(c) the supply of oxygen cylinders and concentrators.
"BUSINESS DAY" means a day (other than a Saturday or Sunday) on which
banks are open for business generally in London.
"BUSINESS PLAN" means the business plan for the Group and TW US Strategy
Paper describing the nature and extent of, and prospects for the Group's
business and operations, dated on or about the date of this Agreement and
prepared by the Parent.
"CASH EQUIVALENT INVESTMENTS" means:
(a) debt securities denominated in (i) US Dollars or (ii) euro or
Sterling ("OTHER CURRENCY") issued by the United States of
America or the United Kingdom ("UK") or any country which is a
member of the European Union whose indebtedness is rated AA or
better by Standard & Poor's Corporation which are (in each case)
not convertible into any other form of security;
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(b) debt securities denominated in US Dollars or Other Currency which
are not convertible into any other form of security, rated P-1
(Xxxxx'x Investor Services Inc.) or A-1 (Standard & Poor's
Corporation) and not issued or guaranteed by any member of the
Group;
(c) certificates of deposit denominated in US Dollars or Other
Currency issued by, and sterling acceptances by, banking
institutions authorised under applicable UK legislation which at
the time of making such issue or acceptances, have outstanding
debt securities rated as provided in paragraph (b) above; and
(d) such other securities (if any) as are approved as such in writing
by the Agent
PROVIDED THAT any such debt securities, certificates of deposit,
acceptances and other securities referred to in paragraphs (a) - (d)
above shall only constitute Cash Equivalent Investments if they have a
maturity of six months or less or (if they have a maturity of longer than
six months) they do not have a fixed interest rate/coupon.
"CAPITAL EXPENDITURE" shall have the meaning given to such term in Clause
19.3 (Financial Definitions).
"CASH FLOW" shall have the meaning given to such term in Clause 19.3
(Financial Definitions).
"CASH PAID MARGIN" means all amounts of interest accrued on the Advance
which is paid in cash pursuant to Clause 5.3 (Cash Paid Interest).
"CASH PAID MARGIN" means three point five per cent. (3.5%) per annum.
"CHANGE OF CONTROL" means the occurrence of the following event or
circumstances:
(a) any person or group of connected persons which does not at the
date hereof have control of the Parent or any holding company of
the Parent acquires such control (for the purposes of this
paragraph "connected person" shall be construed in accordance
with Section 839 of the Income and Corporation Taxes Act 1988);
or
(b) the persons listed in Clause 16.20 (Control of the Parent) ceases
to have control of the Parent.
"CLOSING CERTIFICATE" means the closing certificate substantially in the
form set out in Schedule 11 (Form of Closing Certificate).
"COMMITMENT" means, in relation to a Bank at any time, the aggregate of
its Term Commitment and its Revolving Commitment.
"COMMITMENT" means, in relation to a Bank at any time and save as
otherwise provided herein, the amount set opposite its name under the
heading "TERM A COMMITMENT" in Schedule 1 (The Banks).
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"COMPLIANCE CERTIFICATE" means a certificate substantially in the form
set out in Schedule 5 (Form of Compliance Certificate).
"CONFIDENTIALITY UNDERTAKING" means a confidentiality undertaking in the
standard form from time to time of the LMA or in such other form as may
be agreed between the Parent and the Agent.
"DEBENTURE" means a debenture in the agreed form executed or to be
executed in favour of the Security Agent.
"DISPUTE" means any dispute referred to in Clause 41 (Jurisdiction).
"DORMANT SUBSIDIARY" means, on any given date, a Group company
(a) which has been dormant within the meaning of section 250(3) of
the Act for the period of 12 months ending on that date (or, if a
shorter period, for the period from the date of its incorporation
to that date) and;
(b) the value of whose assets does not exceed in aggregate
(Pounds)10,000.
"DUE DILIGENCE REPORT" means the preliminary legal due diligence report
in relation to the Group dated 16 December 1999, together with the
preliminary report dated 25 July 1999.
"EARN OUT" means any earn out element payable to vendors in relation to
acquisitions as permitted under the Senior Credit Agreement.
"ENCUMBRANCE" means (a) a mortgage, charge, pledge, lien or other
encumbrance securing any obligation of any person, (b) any arrangement
under which money or claims to, or the benefit of, a bank or other
account may be applied, set off or made subject to a combination of
accounts so as to effect discharge of any sum owed or payable to any
person or (c) any other type of preferential arrangement (including any
title transfer and retention arrangement) the effect of which is to give
a creditor a preferential position in relation to any asset of a person
on any insolvency proceeding of that person.
"ENVIRONMENTAL CLAIM" means any claim, proceedings or official
investigation by any person pursuant to any Environmental Law.
"ENVIRONMENTAL LAW" means any applicable law in any jurisdiction in which
any member of the Group conducts business giving rise to legal
obligations or liability relating to the pollution or protection of the
environment or harm to or the protection of human health or the health of
animals or plants.
"ENVIRONMENTAL PERMITS" means any permit, licence, consent, approval and
other authorisation and the filing of any notification, report or
assessment required under any Environmental Law for the operation of the
business of any member of the Group conducted on or from the properties
owned or used by the relevant member of the Group.
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"EVENT OF DEFAULT" means any circumstance described as such in Clause 21
(Events of Default).
"EXCESS CASH FLOW" has the meaning given to such term in Clause 19.3
(Financial Definitions).
"EXCLUDED PROCEEDS" means (a) aggregate Net Disposal Proceeds received in
respect of sales or other transfers of assets or revenues where the
proceeds of each such asset disposal do not exceed (pounds)50,000 (or its
equivalent) and up to but not more than (pounds sterling)100,000 (or its
equivalent) in aggregate in any period of twelve months (the "PERMITTED
RETENTION") and (b) any insurance recovery where the proceeds arising out
of the same are to be applied and are applied in acquiring replacement
assets for the assets damaged or destroyed (or in reinstating the
relevant damaged assets) or meeting any liability in respect of which
such moneys are received within 180 days of receipt PROVIDED THAT such
proceeds are deposited into and held in the Holding Account until such
time that a replacement of such asset is required or such reinstatement
is made or such liability is met.
"EXISTING TW US LOAN " means the existing intra-group loans between TW US
and the Original Borrower in the amount of approximately
(pounds sterling)40,000,000.
"FACILITY" means the term loan facility granted to the Borrowers under
Clause 2.1 (Grant of the Facility) of this Agreement.
"FACILITY OFFICE" means, in relation to the Agent, each office identified
with its signature below or such other office(s) as it may select by
notice and, in relation to any Bank, each office notified by it to the
Agent in writing prior to the date hereof (or, in the case of a
Transferee, at the end of the Transfer Certificate to which it is a party
as Transferee) or such other office(s) as it may from time to time select
by notice to the Agent.
"FINAL MATURITY DATE" means the eighth anniversary of the date hereof.
"FINANCE DOCUMENTS" means this Agreement, any Borrower Accession
Memorandum or Guarantor Accession Memorandum, the fee letters referred to
in Clauses 23.2 (Arrangement Fee), 23.3 (Agency Fee) and 23.4
(Underwriting Fee), the Security Documents, the Intercreditor
Arrangements, Mezzanine Warrant Instrument, the Hedging Agreements
entered into by a Bank (but not any other financial institution) and any
documents evidencing the terms of any other agreement or document that
may be entered into or executed pursuant to any of the foregoing by any
Obligors and any other document which is designated a "FINANCE DOCUMENT"
in writing signed by the Parent and the Agent.
"FINANCE LEASE" means a contract treated as a finance lease in accordance
with UK GAAP.
"FINANCE PARTIES" means the Agent, the Security Agent, the Arranger, the
Underwriters and the Banks and any Hedge Counterparties which are Banks.
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"FINANCIAL INDEBTEDNESS" means any indebtedness in respect of or arising
under or in connection with:
(a) moneys borrowed (including overdrafts); or
(b) indebtedness under any debenture, bond (other than a performance
bond issued in respect of the trade obligations), note or loan
stock or other similar instrument; or
(c) any acceptance or documentary credit (other than in respect of
trade obligations); or
(d) receivables sold or discounted (otherwise than on a non-recourse
basis); or
(e) the acquisition cost of any asset to the extent payable after the
time of acquisition or possession by the person liable as
principal obligor for the payment thereof where the deferred
payment is arranged primarily as a method of raising finance or
financing or refinancing the acquisition of the asset acquired
(excluding, for the avoidance of doubt, trade credit with a term
of 180 days or less on customary terms); or
(f) the sale price of any asset to the extent paid before the time of
sale or delivery by the person liable to effect such sale or
delivery where the advance payment is arranged primarily as a
method of raising finance or financing or refinancing the
manufacture, assembly, acquisition or holding of the asset to be
sold (excluding, for the avoidance of doubt, trade credit with a
term of 180 days or less on customary terms); or
(g) Finance Leases, credit sale or conditional sale agreements
(whether in respect of land, buildings, plant, machinery,
equipment or otherwise) entered into primarily as a method of
raising finance or financing or refinancing the acquisition of
the relevant asset (but not including liabilities under operating
leases); or
(h) the net amount from time to time due pursuant to any agreement
for managing or hedging currency and/or interest rate and/or
commodity risk whether by way of forward exchange, cap, collar,
swap, forward rate agreement or otherwise or the net amount from
time to time due under any other derivative contract; or
(i) the amount payable under any put option or other arrangement
(excluding, until exercisable, the warrants issued under the
Warrant Documents) whereby any member of the Group is liable, at
the request of a third party, to purchase share capital or other
securities issued by it or any other member of the Group prior to
the Final Maturity Date; or
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(j) the amount payable by any member of the Group in respect of the
redemption of any share capital or other securities issued by it
prior to the Final Maturity Date; or
(k) the amount of any guarantee or indemnity of any person in respect
of any indebtedness falling within paragraphs (a) to (j)
inclusive of this definition,
and so that, where the amount of Financial Indebtedness falls to be
calculated, no amount shall be taken into account more than once in the
same calculation.
For the avoidance of doubt Financial Indebtedness shall not include
indebtedness incurred in relation to any Earn Outs payable at the date
hereof.
"FINANCIAL MODEL" means the financial model in the agreed form prepared
by PricewaterhouseCoopers.
"FINANCIAL QUARTER" shall have the meaning ascribed to it in Clause 19.3
(Financial Definitions).
"FLOTATION" means a successful application being made for any part of the
share capital of the Group or any holding company of the Parent to be
listed on any stock exchange or the grant of permission to deal in any
such share capital on any recognised exchange.
"FUNDS FLOW STATEMENT" means the chart and memorandum in the agreed form
showing the payments to be made by each member of the Group and TW US at
or immediately prior to the date hereof for the purposes of repaying the
Existing TW US Loan.
"GROUP" means the Parent and its subsidiaries for the time being.
"GROUP ASSETS" means all the assets, properties and business of the Group
taken as a whole.
"GROUP REVENUES" means all revenues of the Parent.
"GROUP STRUCTURE CHART" means the group structure chart in agreed form
showing:
(a) all members of the Group;
(b) any person in which any Group member has an interest in the
issued share capital or equivalent ownership interest of such
person;
(c) the jurisdiction of incorporation or establishment of each person
within (a) above; and
(d) that all members of the Group are wholly-owned subsidiaries of
the Parent.
"GUARANTOR ACCESSION MEMORANDUM" means a memorandum substantially in the
form set out in Schedule 7 (Form of Guarantor Accession Memorandum).
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"GUARANTORS" means each of the Original Guarantors and each Additional
Guarantor.
"HEDGE COUNTERPARTY" means a Bank which has become a party to the
Intercreditor Arrangements as a Hedge Counterparty in accordance with the
provisions thereof.
"HEDGING AGREEMENTS" means each of the agreements entered into or to be
entered into between the Group member(s) approved by the Agent and a
Hedge Counterparty for the purpose of hedging interest rate liabilities
in accordance with Clause 20.32 (Hedging).
"HOLDING ACCOUNT" means the account specified in a letter between the
Parent and the Agent which account is held by the Original Borrower with
the Security Agent (or any other interest bearing account held in England
(or any other jurisdiction agreed to by the Security Agent (acting
reasonably)) with the Security Agent by a Group member which is opened
after the date hereof and after receipt by the Agent of written
confirmation from the Parent that such account is to be a "Holding
Account") (as the same may be redesignated, substituted or replaced from
time to time) which is pledged, charged or assigned to the Security Agent
pursuant to the Security Documents to secure all amounts due under the
Finance Documents and from which the only withdrawals which may be made
are to:
(a) (i) in the case of any disposal proceeds deposited in such
account, reinvest in assets which are similar to the assets to
which such disposal proceeds relate or (ii) in the case of
insurance proceeds deposited in such account, repair, replace or
reinstate the assets to which such insurance proceeds relate or
to meet a third party claim or (iii) in the case of acquisition
recoveries deposited in such account, discharge the liability,
charge or claim to which such acquisition recoveries relate or to
be applied in repair, replacement or reinstatement of assets
which are a total loss or damaged as a result of the event or
circumstance giving rise to such acquisition recoveries PROVIDED
THAT, in the case of any withdrawal, such withdrawal is made as
soon as reasonably practicable and in any event within 90 days
(or such longer period agreed by the Agent) of receipt of such
disposal proceeds or, as the case may be, acquisition recoveries
or within 180 days (or such longer period agreed by the Agent) of
receipt of such insurance proceeds and provided further the
Parent has provided a certificate to the Security Agent
requesting withdrawal of such proceeds (setting out in reasonable
detail how such withdrawal shall be applied); or
(b) repay amounts due to the Finance Parties under this Agreement,
and the interest rate on the deposit in such account to be the rate
applicable to corporate customers of a similar standing to such Group
member in respect of deposits in the same currency of similar amounts and
similar duration.
"HYPERION" means Hyperion Capital.
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"INDEBTEDNESS FOR BORROWED MONEY" means any indebtedness in respect of or
arising under or in connection with Financial Indebtedness (save for
Financial Indebtedness falling within paragraph (h) of the definition of
"FINANCIAL INDEBTEDNESS").
"INFORMATION MEMORANDUM" means the document approved by the Parent
concerning the Group which, at their request and on their behalf, has
been prepared in relation to this transaction and distributed by the
Arranger to selected banks.
"INITIAL INVESTOR" means Triumph Partners III, L.P. and each of its
permitted successors, assigns or transferees.
"INSTRUCTING GROUP" means:
(a) whilst there are no Outstandings, a Bank or Banks whose
Commitments amount (or, if each Bank's Commitment has been
reduced to zero, did immediately before such reduction to zero,
amount) in aggregate to more than sixty-six and two thirds per
cent. of the Total Commitments; and
(b) whilst there are Outstandings, a Bank or Banks to whom in
aggregate more than sixty-six and two thirds per cent. of the
Sterling Amount of the Outstandings is owed.
"INTELLECTUAL PROPERTY" means any and all interests in any part of the
world in or relating to registered and unregistered trade marks and
service marks, domain names, patents, registered designs, trade names,
business names, titles, registered or unregistered copyrights in
published and unpublished works, unregistered designs, inventions
registered or unregistered, data base rights, know-how, any other
intellectual property rights and any applications for any of the
foregoing and any goodwill therein.
"INTERCREDITOR ARRANGEMENTS" means the intercreditor deed referred to in
Schedule 3 Part 1 paragraph E(3) (Conditions Precedent).
"INTEREST PERIOD" means, save as otherwise provided herein:
(a) any of those periods mentioned in Clause 4.1 (Interest Periods);
and
(b) in relation to an Unpaid Sum, any of those periods mentioned in
Clause 25.1 (Default Interest Periods).
"INTRA-GROUP BORROWERS" means the intra-group borrowers named in the
Intra-Group Loan.
"INTRA-GROUP LOAN" means any loan between members of the Group evidenced
by a loan agreement in the agreed form.
"IP LICENCE" means the licence or agreement pursuant to or under which
any Intellectual Property is held, used or exploited by any Group member.
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"JOINT VENTURE" means any joint venture entity, whether a company,
unincorporated firm, undertaking, association, joint venture or
partnership or any other entity.
"LEGAL OPINIONS" means the Legal Opinions delivered to the Agent in
accordance with Clause 2.3 (Conditions Precedent), Clause 33.2 (Borrower
Conditions Precedent) and Clause 34.2 (Guarantor Conditions Precedent).
"LEGAL RESERVATIONS" means the principle that equitable remedies may be
granted or refused at the discretion of a court, the limitation of
enforcement by laws relating to bankruptcy, insolvency, liquidation,
reorganisation, court schemes, moratoria, administration and other laws
generally affecting the rights of creditors, the time barring of claims
under the Limitation Acts, the possibility that an undertaking to assume
liability for or indemnify a person against non-payment of UK stamp duty
may be void and defences of set-off or counterclaim, rules against
contractual penalties and similar principles which are set out in the
Legal Opinions as qualifications as to matters of law.
"LIBOR" means, in relation to any amount owed by an Obligor hereunder on
which interest for a given period is to accrue:
(a) the percentage rate per annum equal to the offered quotation
which appears on the page of the Telerate Screen which displays
an average British Bankers Association Interest Settlement Rate
for sterling (being currently "3750") for such period at or about
11.00 a.m. on the Quotation Date for such period or, if such page
or such service shall cease to be available, such other page or
such other service for the purpose of displaying an average
British Bankers Association Interest Settlement Rate for such
currency as the Agent, after consultation with the Banks and the
Parent, shall select; or
(b) if no quotation for the relevant currency and the relevant period
is displayed and the Agent has not selected an alternative
service on which a quotation is displayed, the arithmetic mean
(rounded upwards to four decimal places) of the rates (as
notified to the Agent) at which each of the Reference Banks was
offering to prime banks in the London Interbank Market deposits
in the currency of such amount and for such period at or about
11.00 a.m. on the Quotation Date for such period.
"LMA" means the Loan Market Association.
"MARKET REPORT" means the market report by Cambridge Pharma Consultancy
dated November 1999 in relation to the Group in agreed form.
"MANAGEMENT OPTIONS" means the seven (7) day option for management to
invest in the Original Borrower pursuant to the Securities Purchase
Agreement.
"MANDATORY PREPAYMENT ACCOUNT" means an interest bearing account held in
England by the Original Borrower with the Security Agent and identified
in a letter between the Original Borrower and the Agent as a Mandatory
Prepayment Account (as
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the same may be redesignated, substituted or replaced from time to time)
which is pledged, charged or assigned to the Security Agent pursuant to
the Security Documents to secure amounts due under the Finance Documents
and from which no withdrawals may be made by any Group members and the
interest rate on the deposit in such account to be the rate applicable to
corporate customers of a similar standing to such Group member in respect
of deposits in the same currency of similar amounts and similar duration.
"MATERIAL ADVERSE EFFECT" means (a) a material adverse effect on the
assets, property, business, financial condition or the results of
operations of the Group taken as a whole or (b) a material adverse effect
on the ability of any Obligor to comply with any of its payment
obligations (and its obligations under Clause 22.1 (Financial Covenants))
under the Finance Documents.
"MATERIAL SUBSIDIARY" means the Obligors and each other member of the
Group whose assets exceed 5% of the total assets of the Group and whose
profit exceed 5% of the gross profit of the Group by reference to the
most recently delivered audited accounts.
"MEZZANINE WARRANT INSTRUMENT" means the mezzanine warrant instrument
executed as a deed dated of even date hereof by the Original Borrower and
any other document or agreement entered into or executed in connection
with such instrument or the rights set out therein.
"MIRROR NOTES" means the mirror loan notes constituted by the Securities
Purchase Agreement.
"MIRROR PIK NOTES" means promissory loan notes constituted by the
Securities Purchase Agreement issued in lieu of the interest due on the
Mirror Notes.
"MIRROR NOTE DOCUMENTS" means the Mirror Notes and the Securities
Purchase Agreement in agreed form and any other documents entered into
pursuant thereto.
"NET DISPOSAL PROCEEDS" means the gross total proceeds (including any
amounts received in repayment of intercompany debt) received by Group
members in cash from all disposals of any revenues or fixed assets of the
Group (other than Excluded Proceeds) less:
(a) reasonable out of pocket expenses of the Group incurred due to
such disposal;
(b) restructuring and other costs incurred by the Group in connection
with any such disposal to the extent not included in (a) above
provided that such costs are in an amount acceptable to an
Instructing Group (acting reasonably);
(c) the VAT or similar tax paid or payable by any member of the Group
due to such disposal; and
(d) any income, capital gains or other taxes incurred and required to
be paid by any member of the Group in connection with such
disposal as reasonably
- 12 -
determined in good faith by such member of the Group on the basis
of the existing tax rates applicable to the gain (if any) and
after taking into account all available credits, deductions and
allowances.
"NOTICE OF DRAWDOWN" means a notice substantially in the form set out in
Schedule 4 (Notice of Drawdown).
"OBLIGORS" means the Parent, the Borrower and the Guarantors.
"ORIGINAL FINANCIAL STATEMENT" means:
(a) in relation to the Parent, its audited consolidated financial
statements for its financial year ended 30 September 1999; and
(b) in relation to each Obligor other than the Parent, its audited
financial statements for its financial year ended 30 September
1999; and
(c) in relation to any Additional Obligor, its audited financial
statements delivered pursuant to Schedule 8 (Additional
Conditions Precedent).
"ORIGINAL OBLIGORS" means the Original Borrower and the Original
Guarantors.
"ORIGINAL SENIOR SUBORDINATED NOTE AMOUNT" means the actual issued
amount (up to (pounds sterling)22,600,000) pursuant to the Securities
Purchase Agreement being the aggregate principal amount of the Senior
Subordinated Notes on issue but excluding any PIK Notes.
"ORIGINAL STERLING AMOUNT" means:
(d) in relation to an Advance:
(i) the amount specified as such in the Notice of Drawdown
relating thereto, as the same may be reduced pursuant to
Clause 3.3 (Reduction of Available Commitment);
(ii) where such Advance came into existence upon the
consolidation of two or more Advances, the aggregate of the
Sterling Amounts of the Advances so consolidated; and
(iii) where such Advance came into existence upon the division of
a Advance, the amount specified as such by the relevant
Borrower pursuant to Clause 4.4 (Division of Advances).
"OUTSTANDINGS" means, at any time, the aggregate of the Sterling Amounts
of each outstanding Advance.
"PARTY" means a party to this Agreement.
"PAYMENT BLOCKAGE EVENT" means:
(a) the occurrence of any Event of Default which is continuing; or
- 13 -
(b) any event or circumstance which would become (with the passage of
time, the giving of notice in each case as contemplated or
required under Clause 21 (Events of Default)) an Event of Default
PROVIDED THAT in the case of any event or circumstance falling
within this paragraph (b) such Payment Blockage Event shall not
be capable of "continuing" for more than 30 days with respect to
a particular event or circumstance.
"PERMITTED DISPOSALS" means:
(a) disposals on arm's length terms of stock in trade or expenditure
of cash by a Group member in its ordinary course of trade;
(b) disposals:
(i) by an Obligor to another Obligor (other than the Parent or
the Original Borrower) which is party to a legally valid,
binding and (subject to the Legal Reservations) enforceable
Security Document which creates a first priority Encumbrance
over the assets and/or revenue disposed of; or
(ii) by a member of the Group which is not an Obligor to another
member of the Group (other than to the Parent or the
Original Borrower) PROVIDED THAT, in the case of transfer to
an Obligor, such assets and/or revenue are not subject to
any material liabilities or Encumbrances;
(c) disposals for cash on arm's length terms of any surplus or
obsolete or worn-out assets not required for the efficient
operation of the business of the Group by any Group member;
(d) disposals of Cash Equivalent Investments on arm's length terms;
and
(e) disposals on arm's length terms of assets in return for other
assets of comparable or greater value;
(f) disposals on arm's length terms of assets the proceeds of which
are to be re-invested in similar or like assets within a period
of 180 days from the date of receipt of such proceeds by the
relevant member of the Group;
(g) disposals of cash where such disposal is not prohibited by the
Finance Documents;
(h) any other disposal PROVIDED THAT the consideration (both cash and
non-cash) received for such disposal(s) does not exceed in
aggregate (pounds sterling)250,000 in any period of twelve
months.
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"PERMITTED ENCUMBRANCE" means:
(a)
(i) any netting or set-off arrangement (or any Encumbrance over
a credit balance in a bank account which is entered into in
order to effect such an arrangement) entered into by any
member of the Group in the normal course of its banking
arrangements;
(ii) any netting or set-off arrangement under a Hedging Agreement
where the obligations of other parties thereunder are
calculated by reference to net exposure thereunder (but not
any netting or set-off relating to such Hedging Agreement in
respect of cash collateral or any other Encumbrance except
as otherwise permitted hereunder);
(b) any title transfer or retention of title arrangement entered into
by any member of the Group in the normal course of its trading
activities on the counterparty's standard or usual terms;
(c) any lien arising by operation of law and in the normal course of
business PROVIDED THAT such lien is discharged within thirty days
of arising;
(d) any Encumbrance arising under or evidenced by a Security
Document;
(e) any Encumbrance entered into pursuant to this Agreement;
(f) any Encumbrance arising under the Mezzanine Credit Agreement;
(g) any lien in favour of a bank over goods and documents of title to
goods arising in the ordinary course of documentary credit
transactions entered into in the ordinary course of trade; and
(h) any Encumbrance constituted by a Finance Lease which does not
exceed (pounds sterling)50,000 for each transaction and subject
to an aggregate amount which does not at any time exceed (pounds
sterling)500,000;
(i) in addition to any Encumbrances subsisting pursuant to paragraph
(a) to (h) above any other Encumbrances PROVIDED THAT the amount
secured by such Encumbrances referred to in this paragraph (i)
does not at any time exceed (pounds sterling)200,000.
"PERMITTED INDEBTEDNESS" means:
(a) any Financial Indebtedness arising under or permitted pursuant to
the Finance Documents;
(b) any Financial Indebtedness arising under the Senior Credit
Agreement;
(c) any Financial Indebtedness arising under the Senior Subordinated
Note Documents or the Mirror Note Documents;
- 15 -
(d) any Financial Indebtedness arising under Permitted Transactions;
(e) any Financial Indebtedness arising under Permitted Treasury
Transactions;
(f) any Financial Indebtedness PROVIDED THAT such Financial
Indebtedness is subordinated on terms acceptable to an
Instructing Group);
(g) any Financial Indebtedness arising under Finance Leases;
(h) any Financial Indebtedness under unsecured overdraft facilities
in an amount, when aggregated with the amount of all indebtedness
incurred under (i) below, not exceeding (pounds sterling)100,000
(or its equivalent) at any time;
(i) any other Financial Indebtedness which, when aggregated with all
Financial Indebtedness incurred under (h) above, does not exceed
(pounds sterling)100,000 (or its equivalent) at any time.
"PERMITTED TRANSACTIONS" means:
(a) Intra-Group Loans PROVIDED THAT such loans are:
(i) trade credits or guarantees or indemnities granted in the
ordinary course of trading and upon terms usual for trade;
or
(ii) loans by a member of the Group which is not an Obligor to
another member of the Group which is not an Obligor; or
(iii) loans by an Obligor to the Original Borrower to fund the
obligations of the Original Borrower under the Finance
Documents, the Mezzanine Documents or, as the case may be,
the Mirror Notes provided that in each case the proceeds
of such Intra Group Loan are immediately applied in
satisfaction of such obligation(s);
(iv) loans by an Obligor to another Obligor (other than the
Parent or the Original Borrower);
(v) loans by an Obligor to the Parent to fund (1) tax
liabilities and (2) administration costs provided that the
aggregate amount of such loans outstanding do not exceed
(pounds sterling)100,000 per annum; and
(vi) loans by any Obligor to any of its employees Provided that
the aggregate amount of such loans outstanding at anytime
does not exceed (pounds sterling)250,000.
(b) payments permitted pursuant to Clause 20.22 (Dividends,
Distributions and Interest).
"PERMITTED TREASURY TRANSACTIONS" means the Treasury Transactions entered
into in accordance with Clause 20.32 (Hedging).
- 16 -
"PIK NOTES" means the promissory loan notes constituted by the Securities
Purchase Agreement issued in lieu of interest on the Senior Subordinated
Notes.
"POTENTIAL EVENT OF DEFAULT" means any event which would become (with the
passage of time, the giving of notice or any combination thereof) an
Event of Default PROVIDED THAT any such event which requires the
satisfaction of any conditions as to materiality before it becomes an
Event of Default shall not be a Potential Event of Default until that
condition is satisfied.
"PROPORTION" means, in relation to a Bank:
(a) whilst no Advance is outstanding, the proportion borne by its
Commitment to the Total Commitments (or, if the Total Commitments
are then zero, by its Commitment to the Total Commitments
immediately prior to their reduction to zero); or
(b) whilst at least one Advance is outstanding, the proportion borne
by its share of the Sterling Amount of the Outstandings to the
Sterling Amount of the Outstandings.
"QUALIFYING BANK" means an Applicable Treaty Bank or a Bank acting out of
a Facility Office to which payments pursuant to this Agreement by a
Borrower may be made free and clear of any deduction or withholding on
account of any taxes of, or imposed by, the Relevant Jurisdiction of such
Borrower.
"QUOTATION DATE" means, in relation to any period for which an interest
rate is to be determined hereunder, the day on which quotations would
ordinarily be given by prime banks in the London Interbank Market for
deposits in the currency in relation to which such rate is to be
determined for delivery on the first day of that period, PROVIDED THAT,
if, for any such period, quotations would ordinarily be given on more
than one date, the Quotation Date for that period shall be the last of
those dates.
"REFERENCE BANKS" means the principal London offices of Barclays Bank
PLC, Paribas and such Banks as may be appointed as such by the Agent
after consultation with the Parent.
"RELIANCE LETTER" means any letter in the agreed form from a provider of
a Report and which is addressed to the Agent (on behalf of the Finance
Parties) pursuant to which the provider of the Report agrees that the
Finance Parties are entitled to rely on such Report.
"REPAYMENT DATE" means the date falling eight (8) years after the date
hereof.
"REPEATED REPRESENTATIONS" means:
(a) on the date hereof and on the first date on which an Advance is
made under the Facilities, all of the representations set out in
Clause 16 (Representations); and
- 17 -
(b) at any other time, each of the representations set out in:
(i) Clause 16.1 (Status) to Clause 16.10 (No Immunity) other
than Clauses 16.3 (Execution and Power), 16.7 (Validity and
Admissibility in Evidence) and 16.4.2 (No Material
Proceedings); and
(ii) Clause 16.14 (No Material Defaults) to Clause 16.32 (Year
2000 Compliance) other than Clauses 16.15 (Information),
16.16 (Information Memorandum), 16.23 (Consents and
Approvals).
"REPORTS" means the Accountants Report, the Due Diligence Report and the
Market Report.
"RESIGNATION NOTICE" means a notice substantially in the form set out in
Schedule 9 (Form of Resignation Notice).
"REVISED FINANCIAL PROJECTIONS" means the financial projections of the
Group and each Group member on a consolidated and consolidating basis
prepared on a pro forma basis assuming that the proposed acquisition was
completed at the start of the twelve month period ending on the next
Quarter Date falling after the proposed Purchase Date.
"ROLLED-UP MARGIN" means three point five per cent. (3.5%) per annum.
"SECURITIES PURCHASE AGREEMENT" means the loan note instrument made by
the Parent constituting up to (pounds sterling)22,600,000 senior
subordinated loan notes, 9.375% due 2007 and by the Original Borrower
constituting up to (pounds sterling)22,600,000 senior subordinated mirror
notes, 9.375% due 2007.
"SECURITY" means the security from time to time constituted by or
pursuant to the Security Documents.
"SECURITY DOCUMENTS" means each of the Debentures by each Obligor
together with any other document entered into by any member of the Group
creating or evidencing security for all or any part of the obligations of
the Obligors or any of them under any of the Finance Documents whether by
way of personal covenant, charge, security interest, mortgage, pledge or
otherwise and as referred to in Part I Section E of Schedule 3
(Conditions Precedent).
"SENIOR FACILITY" means the senior loan facility made available to the
Borrower (as defined therein) on the terms and conditions of the Senior
Credit Agreement.
"SENIOR CREDIT AGREEMENT" means the senior credit agreement dated of even
date herewith and made between Transworld Healthcare UK, Limited as
borrower and the banks and financial institutions named therein as Banks,
setting out the terms and conditions on which the Senior Outstandings
will be made available.
"SENIOR FINANCE DOCUMENTS" means the Senior Credit Agreement, any
guarantor accession memorandum under the Senior Credit Agreement, the
Security Documents
- 18 -
which provide security to the Senior Banks, the Intercreditor
Arrangements, the fee letters referred to in Clause 23.2 (Arrangement
Fee) of the Senior Credit Agreement and any documents evidencing the
terms of any other agreement or document that may be entered into or
executed pursuant to any of the foregoing by the Obligors or any of them
and any other document which is designated a "SENIOR FINANCE DOCUMENT" or
"FINANCE DOCUMENT" in writing signed by the Parent and the Senior Banks.
"SENIOR BANKS" means the "BANKS" as defined in the Senior Credit
Agreement.
"SENIOR OUTSTANDINGS" means the loan in the maximum principal amount of
(pounds sterling)45,500,000 to be made available by the Senior Banks
under the Senior Credit Agreement, the rights in relation to which are
subject to the provisions of the Intercreditor Arrangements.
"SENIOR SUBORDINATED NOTES" means the senior subordinated loan notes
constituted by the Securities Purchase Agreement.
"SENIOR SUBORDINATED NOTE DOCUMENTS" means the Senior Subordinated Notes
and the Securities Purchase Agreement in agreed form and any other
documents entered into pursuant thereto.
"SENIOR SUBORDINATED NOTE HOLDERS" means the holders of any Senior
Subordinated Notes from time to time.
"SERVICE CONTRACTS" means the deed of restrictive covenant in agreed form
entered into between the Original Borrower and Xxxxxxx Xxxxxx, Xxxxx
Xxxxx and Xxxxx Xxxxxxxxx.
"SOLVENCY CERTIFICATE" means each of the solvency certificates certified
by the Chief Finance Officer of the Parent in relation to the solvency of
the Parent and the Original Borrower and certified by the Chief Finance
Officer of TW US in relation to the solvency of TW US.
"STERLING AMOUNT" means:
(a) in relation to an Advance, its Original Sterling Amount as
reduced by the proportion (if any) of such Advance which has been
repaid; and
(b) in relation to the Outstandings, the aggregate of the Sterling
Amounts of each outstanding Advance.
"STRATEGIC SALE" means the sale, liquidation or disposition or (including
by way of merger or consolidation, regardless of whether the Parent or
the Original Borrower are the surviving or resulting corporation) of
stock or assets accounting for ninety per cent. (90%) or more of the
total value of all Group Assets or generating ninety per cent. (90%) or
more of all Group Resources.
"SYNDICATION DATE" means the day specified by the Arranger as the date on
which primary syndication of the Facilities is completed.
- 19 -
"TERM" means, save as otherwise provided herein in relation to any
Advance, the period for which such Advance is borrowed, as specified in
the Notice of Drawdown relating thereto.
"TOTAL COMMITMENTS" means, at any time, the aggregate of the Banks'
Commitments.
"TRANSFER CERTIFICATE" means a certificate substantially in the form set
out in Schedule 2 (Form of Transfer Certificate) or the standard form
from time to time of the LMA Transfer Certificate (Par) signed by a Bank
and a Transferee under which:
(a) such Bank seeks to procure the transfer to such Transferee of all
or a part of such Bank's rights, benefits and obligations
hereunder upon and subject to the terms and conditions set out in
Clause 32.3 (Assignments and Transfers by Banks); and
(b) such Transferee undertakes to perform the obligations it will
assume as a result of delivery of such certificate to the Agent
as contemplated in Clause 32.5 (Transfers by Banks).
"TRANSFER DATE" means, in relation to any Transfer Certificate, the date
for the making of the transfer as specified in such Transfer Certificate.
"TRANSFEREE" means a person to which a Bank seeks to transfer all or part
of such Bank's rights, benefits and obligations under the Finance
Documents.
"TREATY ON EUROPEAN UNION" means the Treaty of Rome of 25 March 1957, as
amended by the Single Xxxxxxxx Xxx 0000 and the Maastricht Treaty (which
was signed at Maastricht on 7 February 1992 and came into force on 1
November 1993).
"TREASURY TRANSACTION" means any currency or interest purchase, cap or
collar agreement, forward rate agreements, interest rate or currency
future or option contract, foreign exchange or currency purchase or sale
agreement, interest rate swap, currency swap or combined interest rate
and currency swap agreement and any other similar agreement.
"TW US" means Transworld Healthcare, Inc., a company incorporated in the
state of New Jersey, United States of America.
"TW US STRATEGY PAPER" means the strategy paper prepared by TW US setting
out the business strategy of TW US.
"UNPAID SUM" means the unpaid balance of any of the sums referred to in
Clause 25.1 (Default Interest Periods).
"UK GAAP" means generally accepted accounting principles in the United
Kingdom.
"UTILISATION DATE" means, in relation to an Advance, the date on which it
is to be made.
- 20 -
"VOTING TRUST AGREEMENT" means the voting trust agreement dated on or
about the date hereof and made between the Parent, the Initial Investor,
the Original Borrower, TW US and the Trustee.
"WARRANT DOCUMENTS" means the Warrant Instrument and Mezzanine Warrant
Instrument.
"WARRANT INSTRUMENT" means the warrant instrument pursuant to which
warrants are to be issued to Senior Subordinated Noteholders pursuant to
the Securities Purchase Agreement executed as a deed dated of even date
herewith by the Original Borrower and any other document or agreement
entered into or executed in connection with such instrument or the rights
set out therein.
1.2 INTERPRETATION
Any reference in this Agreement to:
the "AGENT", any "ARRANGER", any "UNDERWRITER" the "SECURITY AGENT", any
"HEDGE COUNTERPARTY" or any "BANK" shall be construed so as to include it
and any subsequent successors and permitted transferees and assigns in
accordance with their respective interests;
a document is in "AGREED FORM" if it is initialled as such on or before
the date hereof for the purposes of identification by or on behalf of the
Parent and the Arranger or Agent or is executed on or before the date
hereof by the Parent and the Arranger or Agent or, if not so executed or
initialled, is in form and substance reasonably satisfactory to the
Agent;
"CONTINUING", in relation to an Event of Default, shall be construed as a
reference to an Event of Default which has not been waived in accordance
with the terms hereof or remedied and, in relation to a Potential Event
of Default, one which has not ceased to be a Potential Event of Default;
the "CONTROL" of a company or corporation shall be construed as:
(a) the power (whether by way of ownership of shares, proxy,
contract, agency, operation of law, or otherwise, and whether
direct or indirect) to:
(i) cast, or control the casting of, more than one-half of the
maximum number of votes that might be cast at a general
meeting of that company or corporation; or
(ii) appoint or remove all, or the majority, of the directors or
other equivalent officers of that company or corporation
(and the relevant person or persons shall be deemed to have
power to make such an appointment if:
(1) an individual cannot be appointed as a director or an
equivalent officer of that company or corporation
without the exercise by the
- 21 -
relevant person or persons of such power in the
individual's favour; or
(2) an individual's appointment as a director or an
equivalent officer of that company or corporation
follows necessarily from the individual being a
director or other equivalent officer of any of the
relevant person or persons); or
(iii) give directions with respect to the management, operating
and/or financial policies of that company or corporation
which the directors or other equivalent officers of that
company or corporation are obliged to comply with; or
(b) the holding of more than one-half of the issued share capital of
that company or corporation (excluding any part of that issued
share capital that carries no right to participate beyond a
specified amount in a distribution of either profits or capital);
"DISPOSAL" shall be construed as any sale, lease, transfer, conveyance,
subparticipation, granting of derivative interests, assignment, licence,
sub-licence or other disposal (including, without limitation, any other
transaction or arrangement pursuant to which the economic or other
commercial benefit of the existing and/or remaining assets of the
relevant person is lost or materially diluted) and "DISPOSE" shall be
construed accordingly;
a "GUARANTEE" means any guarantee, bond, indemnity, or other legally
binding assurance against financial loss granted by one person in respect
of any indebtedness of another person, or any legally binding agreement
by one person to assume any indebtedness of (or any legally binding
arrangement by or under which indebtedness is assumed in respect of) any
other person and "GUARANTEED" shall be construed accordingly;
a "HOLDING COMPANY" of a company or corporation shall be construed as a
reference to any company or corporation of which the first-mentioned
company or corporation is a subsidiary;
"INDEBTEDNESS" shall be construed so as to include any obligation
(whether incurred as principal or as surety) for the payment or repayment
of money, whether present or future, actual or contingent;
"INSOLVENCY PROCEEDING" (a) means any proceeding by, against or in
respect of any company or corporation for its liquidation, bankruptcy,
winding-up, dissolution, reorganisation, moratorium or for the
appointment of a receiver, administrator, administrative receiver,
trustee or similar officer in respect of it or of all or a substantial
part of its assets, and (b) shall be construed so as to include any
equivalent or analogous proceedings under the law of the jurisdiction in
which such company or corporation is incorporated or any jurisdiction in
which such company or corporation carries on business;
- 22 -
a "LAW" shall be construed as any law (including common or customary
law), statute, constitution, decree, judgment, treaty, regulation,
directive, bye-law, order or any other legislative measure of any
government, supranational, local government, statutory or regulatory body
or court;
a "MONTH" is a reference to a period starting on one day in a calendar
month and ending on the numerically corresponding day in the next
succeeding calendar month save that:
(a) if any such numerically corresponding day is not a Business Day,
such period shall end on the immediately succeeding Business Day
to occur in that next succeeding calendar month or, if none, it
shall end on the immediately preceding Business Day; and
(b) if there is no numerically corresponding day in that next
succeeding calendar month, that period shall end on the last
Business Day in that next succeeding calendar month;
a "PERSON" shall be construed as a reference to any person, firm,
company, corporation, government, state or agency of a state or any
association or partnership (whether or not having separate legal
personality) of two or more of the foregoing;
"REPAY" (or any derivative form thereof) shall, subject to any contrary
indication, be construed to include "PREPAY" (or, as the case may be, the
corresponding derivative form thereof);
a "SUBSIDIARY" of a company or corporation shall be construed as a
reference to any company or corporation:
(a) which is controlled, directly or indirectly, by the
first-mentioned company or corporation;
(b) more than half the issued share capital of which is beneficially
owned, directly or indirectly, by the first-mentioned company or
corporation; or
(c) which is a subsidiary of another subsidiary of the
first-mentioned company or corporation
and, for these purposes, a company or corporation shall be treated as
being controlled by another if that other company or corporation is able
to direct its affairs and/or to control the composition of its board of
directors or equivalent body.
a "SUCCESSOR" shall be construed so as to include an assignee or
successor in title of such party and any person who under the laws of its
jurisdiction of incorporation or domicile has assumed the rights and
obligations of such party under this Agreement or to which, under such
laws, such rights and obligations have been transferred;
"TAX" shall be construed so as to include any tax (which shall include,
but not be limited to, corporation tax and advance corporation tax),
levy, impost, duty or other
- 23 -
charge of a similar nature (including any penalty or interest payable in
connection with any failure to pay or any delay in paying any of the
same);
"VAT" shall be construed as a reference to value added tax including any
similar tax which may be imposed in place thereof from time to time; and
a "WHOLLY-OWNED SUBSIDIARY" of a company or corporation shall be
construed as a reference to any company or corporation which has no other
members except that other company or corporation and that other company's
or corporation's wholly-owned subsidiaries or persons acting on behalf of
that other company or corporation or its wholly-owned subsidiaries.
1.3 CURRENCY SYMBOLS AND DEFINITIONS
"(POUNDS)" and "STERLING " denote lawful currency of the United Kingdom.
1.4 AGREEMENTS AND STATUTES Any reference in this Agreement to:
1.4.1 this Agreement or any other agreement or document shall be
construed as a reference to this Agreement or, as the case may
be, such other agreement or document as the same may have been,
or may from time to time be, amended, varied, novated or
supplemented; and
1.4.2 a statute or treaty shall be construed as a reference to such
statute or treaty as the same may have been, or may from time to
time be, amended or, in the case of a statute, re-enacted.
1.5 HEADINGS
Clause and Schedule headings are for ease of reference only.
1.6 TIME
Any reference in this Agreement to a time of day shall, unless a contrary
indication appears, be a reference to London time.
1.7 NO PERSONAL LIABILITY FOR DIRECTORS
No part of this Agreement shall be construed so as to attach any personal
liability, obligation or duty to any director of any Group member.
2. THE FACILITY
2.1 GRANT OF THE FACILITY
The Xxxxx xxxxx to the Borrowers, upon the terms and subject to the
conditions hereof a term loan facility in an aggregate amount of up to
(pounds sterling)10,000,000 (the "FACILITY").
2.2 PURPOSE AND APPLICATION
The Facility is intended for the purpose of refinancing Existing TW US
Loans and, accordingly, each Borrower shall so apply all amounts raised
by it hereunder and none of the Finance Parties shall be obliged to
concern themselves with such application.
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2.3 CONDITIONS PRECEDENT
Save as the Banks may otherwise agree, none of the Borrowers may deliver
any Notice of Drawdown unless the Agent has confirmed to the Parent and
the Banks that it has received all of the documents and other evidence
listed in Schedule 3 (Conditions Precedent) and that each is, in form and
substance, satisfactory to the Agent.
2.4 SEVERAL OBLIGATIONS
The obligations of each Bank are several and the failure by a Bank to
perform its obligations hereunder shall not affect the obligations of an
Obligor towards any other party hereto nor shall any other party be
liable for the failure by such Bank to perform its obligations hereunder.
2.5 SEVERAL RIGHTS
The rights of each Finance Party are several and any debt arising
hereunder at any time from an Obligor to any Finance Party hereto shall
be a separate and independent debt. Each such party shall be entitled to
protect and enforce its individual rights arising out of this Agreement
independently of any other party (so that it shall not be necessary for
any party hereto to be joined as an additional party in any proceedings
for this purpose).
3. UTILISATION
3.1 UTILISATION CONDITIONS An Advance will be made if:
3.1.1 not later than 11.00 a.m. three Business Days before the proposed
Utilisation Date, the Agent has received a completed Notice of
Drawdown from the Borrower;
3.1.2 the proposed Original Sterling Amount of such Advance is
(pounds)10,000,000 which is equal to the amount of the Available
Facility;
3.1.3 the interest rate applicable to such Advance during its first
Interest Period would not fall to be determined pursuant to
Clause 6.1 (Market Disruption);
3.1.4 the proposed date for the making of such Advance is a Business
Day falling within the Availability Period;
3.1.5 on and as of the proposed Utilisation Date (a) no Event of
Default or Potential Event of Default is continuing or would
occur as a result of the making of such Advance and (b) the
Repeated Representations are true (before and immediately after
the making of such Advance) by reference to the facts and
circumstances then existing and (c) the Agent has confirmed to
the Parent and the Banks that it has received all of the
documents and other evidence listed in Schedule 3 (Conditions
Precedent) and that each is, in form and substance, satisfactory
to the Agent.
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3.2 EACH BANK'S PARTICIPATION IN ADVANCES
Each Bank will participate through its Facility Office in the Advance
made in the proportion borne by its Available Commitment the Available
Facility immediately prior to the making of that Advance.
3.3 REDUCTION OF AVAILABLE TERM COMMITMENT
If a Bank's relevant Available Commitment is reduced in accordance with
the terms hereof after the Agent has received the Notice of Drawdown for
an Advance pursuant to this Clause 3 and such reduction was not taken
into account in calculating the Available Facility, then both the
Original Sterling Amount and the amount of that Advance shall be reduced
accordingly.
4. INTEREST PERIODS
4.1 INTEREST PERIODS
The period for which an Advance is outstanding shall be divided into
successive periods each of which (other than the first, which shall begin
on the day such Term Advance is made) shall start on the last day of the
preceding such period.
4.2 DURATION
Until the earlier of six months after the date hereof and the Syndication
Date, the duration of each Interest Period shall be one month.
Thereafter, the duration of each Interest Period shall, save as otherwise
provided herein, be one, three or six months (or such other period as may
be agreed between the Parent and the Banks), in each case as the Borrower
to which such Advance is made (or the Parent) may by no later than 10.00
a.m. three Business Days' prior notice to the Agent select, or such other
period as the Banks agree PROVIDED THAT:
4.2.1 if such Borrower fails to give such notice of its selection in
relation to an Interest Period, the duration of that Interest
Period shall, subject to sub-clauses 4.2.2, 4.2.3 and 4.2.3, be
three months;
4.2.2 any Interest Period which begins during or at the same time as
any other Interest Period and made under the same Facility shall
end at the same time as that other Interest Period;
4.2.3 to the extent necessary to ensure at any time Advances have
Interest Periods expiring on the Repayment Date or Final Maturity
Date, any Interest Period which would otherwise end during the
month preceding, or extend beyond, the Repayment Date or Final
Maturity Date shall be of such duration that it shall end on the
Repayment Date or Final Maturity Date.
4.3 CONSOLIDATION OF TERM ADVANCES
If two or more Interest Periods relating to Advances denominated in the
same currency end at the same time, then, on the last day of those
Interest Periods, the Advances to which they relate shall be consolidated
into and treated as a single Advance.
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4.4 DIVISION OF TERM ADVANCES
The Borrower to which an Advance is made may, by no later than 10.00 a.m.
three Business Days' prior notice to the Agent direct that such Advance
shall, at the beginning of any Interest Period relating thereto, be
divided into (and thereafter, save as otherwise provided herein, treated
in all respects as) two or more Advances having such Original Sterling
Amounts (in aggregate, equalling the Sterling Amount of the Advance being
so divided) as shall be specified by such Borrower in such notice,
PROVIDED THAT such Borrower shall not be entitled to make such a
direction if:
4.4.1 as a result of so doing, there would be more than six outstanding
Advances; or
4.4.2 any Advance thereby coming into existence would have a Sterling
Amount of less than (pounds sterling)10,000,000.
5. PAYMENT AND CALCULATION OF INTEREST
5.1 PAYMENT OF INTEREST
On the last day of each Interest Period relating to an Advance (and, if
the Interest Period of such Advance exceeds six months, on the expiry of
each period of six months during that Interest Period) the Borrower to
which such Advance has been made shall pay accrued interest on the
Advance to which such Interest Period relates.
5.2 CALCULATION OF INTEREST
The rate of interest applicable to an Advance from time to time during an
Interest Period relating thereto shall be the rate per annum determined
by the Agent to be the aggregate of:
5.2.1 the Cash Paid Margin;
5.2.2 the Rolled-Up Margin;
5.2.3 LIBOR relative to such Advance for such Interest Period; and
5.2.4 the Associated Costs Rate, if any, relative to such Advance and
each Bank's participation therein from time to time during such
Interest Period.
5.3 CASH PAID INTEREST
Except as otherwise provided in Clause 5.4 (Rolled-Up Interest) or
elsewhere in this Agreement, an amount of interest accrued on each
Advance for each Interest Period pursuant to Clause 5.2 (Calculation of
Interest) shall be paid by the Borrower in cash on the Interest Date
relating to such Interest Period and also, in the case of an Interest
Period of longer than six months, on the last day of each consecutive
period of six months from the first day of such Interest Period. The
amount of interest paid in cash on each Interest Date shall equal the
amount of interest accrued at the rate per annum determined by the Agent
to be the aggregate of the Cash Paid Margin plus LIBOR plus the
Associated Costs Rate (if any) on such Advance during such Interest
Period.
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5.4 ROLLED-UP INTEREST
An amount of interest accrued pursuant to Clause 5.2 (Calculation of
Interest) on the Advance for each Interest Period relating thereto in an
amount equal to the amount of interest accrued at the Rolled-Up Margin
during such Interest Period shall, at the end of each such Interest
Period, be capitalised with, added, to and shall be deemed to be part of,
such Advance and the principal amount of such Advance shall thereafter be
treated as having been increased by the amounts of Rolled-Up Interest
capitalised in accordance with this Clause 5.4 (Rolled-Up Interest).
6. MARKET DISRUPTION AND ALTERNATIVE INTEREST RATES
6.1 MARKET DISRUPTION
If, in relation to any Advance or Unpaid Sum:
6.1.1 LIBOR is to be determined by reference to Reference Banks and at
or about 11.00 a.m. on the Quotation Date for the relevant
Interest Period or Term none or only one of the Reference Banks
supplies a rate for the purpose of determining LIBOR, for the
relevant Interest Period or Term; or
6.1.2 before the close of business in London on the Quotation Date for
such Advance or Unpaid Sum the Agent has been notified by a Bank
or each of a group of Banks to whom in aggregate thirty-five per
cent. or more of such Advance or Unpaid Sum is owed (or, in the
case of an undrawn Advance, if made, would be owed) that the
LIBOR rate does not accurately reflect the cost of funding its
participation in such Advance or Unpaid Sum,
then, the Agent shall notify the Parent, the relevant Borrower and the
Banks of such event and, notwithstanding anything to the contrary in this
Agreement, Clause 6.2 (Substitute Interest Period and Interest Rate)
shall apply to such Advance (if it is a Term Advance which is already
outstanding or a Rollover Advance) or Unpaid Sum. If sub-clause 6.1.1 or
6.1.2 of Clause 6.1 (Market Disruption) applies to a proposed Advance,
such Advance shall not be made.
6.2 SUBSTITUTE INTEREST PERIOD AND INTEREST RATE
If sub-clause 6.1.1 of Clause 6.1 (Market Disruption) applies to an
Advance, the duration of the relevant Interest Period or Term shall be
one month, or less, such that it shall end on the next succeeding
Repayment Date. If either sub-clause 6.1.1 or 6.1.2 of Clause 6.1 (Market
Disruption) applies to an Advance or Unpaid Sum, the rate of interest
applicable to such Advance or Unpaid Sum during the relevant Interest
Period or Term shall (subject to any agreement reached pursuant to Clause
6.3 (Alternative Rate)) be the rate per annum which is the sum of:
6.2.1 the Cash Paid Margin at such time;
6.2.2 the Rolled-Up Margin at such time;
6.2.3 the Associated Costs Rate in respect thereof at such time; and
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6.2.4 the rate per annum notified to the Agent by each Bank before the
last day of such Interest Period or Term to be that which
expresses as a percentage rate per annum the cost to such Bank of
funding from sources it reasonably selects its portion of such
Advance or Unpaid Sum during such Interest Period or Term.
6.3 ALTERNATIVE RATE
If:
6.3.1 either of those events mentioned in sub-clauses 6.1.1 and 6.1.2
of Clause 6.1 (Market Disruption) occurs in relation to an
Advance or Unpaid Sum; or
6.3.2 by reason of circumstances affecting the London Interbank Market
during any period of three consecutive Business Days LIBOR is not
available for Sterling to prime banks in the London Interbank
Market,
then, in any such case, if the Agent or the Parent so requires, the Agent
and the Parent shall enter into negotiations in good faith with a view to
agreeing an alternative basis:
(a) for determining the rates of interest from time to time
applicable to the Advances and Unpaid Sums; and/or
(b) upon which the Advances and Unpaid Sums may be maintained
thereafter,
and any such alternative basis that is agreed shall take effect in
accordance with its terms and be binding on each party hereto, PROVIDED
THAT the Agent may not agree any such alternative basis without the prior
consent of each Bank.
7. NOTIFICATION
7.1 ADVANCES
Not later than 11.00 a.m. three Business Days before the first day of an
Interest Period or Term (or, in the case of any utilisation being made on
the date hereof, not later than 11.30 a.m. on the date hereof), the Agent
shall notify each Bank of the Facility that is to be utilised, the name
of the Borrower, the proposed Sterling Amount of the relevant Advance,
the proposed length of the relevant Interest Period or Term and the
aggregate principal amount of the relevant Advance allocated to such Bank
pursuant to this Agreement, the name of the proposed beneficiary.
7.2 INTEREST RATE DETERMINATION
The Agent shall promptly notify the relevant Borrower and the Banks of
each determination of LIBOR, the Cash Paid Margin, the Rolled-Up Margin
and the Associated Costs Rate.
7.3 CHANGES TO ADVANCES OR INTEREST RATES
The Agent shall promptly notify the relevant Borrower and the Banks of
any change to:
7.3.1 the proposed length of an Interest Period or Term; or
7.3.2 any interest rate;
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in each case occasioned by the operation of Clause 6 (Market Disruption
and Alternative Interest Rates).
8. REPAYMENT
The Borrower shall repay the Facility by repaying on the Repayment Date
the full amount of the Facility.
9. MANDATORY PREPAYMENT
9.1 MANDATORY PREPAYMENT ON DISPOSAL
Subject to Clause 9.6 (Prepayment Accounts), the Parent shall procure the
application of an amount equal to the Net Disposal Proceeds in respect of
any disposal of any assets of the Group in repayment of the Facilities in
accordance with Clause 9.5 (Application of Prepayments) promptly upon
receipt of the same by any Group member.
The Parent will procure that any amounts which are retained for
reinvestments as envisaged by paragraph (b) of the definition of Excluded
Proceeds and paragraph (f) of the definition of Permitted Disposals will
be paid into the Holding Account promptly upon receipt of the same.
9.2 AMCARE DISPOSAL
The Group may, on approval by the Agent (acting on the instructions of
the Instructing Group), dispose of Amcare Limited (the "AMCARE
DISPOSAL"). So long as the Amcare Disposal occurs within twelve (12)
months of the date hereof, the Parent shall ensure that the application
of an amount equal to the Net Disposal Proceeds of such disposal (the
"AMCARE DISPOSAL PROCEEDS") shall be applied in accordance with Clause
9.2 (Amcare Disposal) of the Senior Credit Agreement. For the avoidance
of doubt Clauses 9.1 (Mandatory Prepayment on Disposal) and 9.5
(Application of Prepayments) shall not apply to the Amcare Disposal
Proceeds during such six (6) month period from making the Amcare Disposal
and if the Amcare Disposal occurs after the date falling twelve (12)
months after the date hereof, the Amcare Disposal Proceeds shall be
applied in accordance with Clause 9.1 (Mandatory Prepayment on Disposal).
9.3 MANDATORY PREPAYMENT ON CHANGE OF CONTROL OR SALE OF BUSINESS
The Parent shall procure that the Term Outstandings and the Revolving
Outstandings are immediately prepaid in full upon the occurrence of:
9.3.1 any Change of Control; or
9.3.2 Hyperion ceasing to have beneficial ownership of at least 50.1%
in TW US; or
9.3.3 the Initial Investor disposing of any Warrants or Senior
Subordinated Notes; or
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9.3.4 any Flotation of any of the shares of any member of the Group or
any holding company of the Parent; or
9.3.5 a Strategic Sale.
9.4 MANDATORY PREPAYMENT OF EXCESS CASH FLOW
The Parent shall procure that, within ten Business Days of the delivering
to the Agent of aggregated and consolidated audited Accounts of the Group
pursuant to Clause 17.1 (Annual Statement) for any annual Accounting
Period, the Term Outstandings shall be prepaid in an aggregate amount
equal to 50% (fifty per cent.) of the Excess Cash Flow (minus (pounds
sterling)1,000,000) of the Group for such Accounting Period to which such
annual consolidated accounts relate. Any such prepayment shall be applied
in accordance with Clause 9.5 (Application of Prepayments).
9.5 APPLICATION OF PREPAYMENTS
9.5.1 Any prepayment made under Clauses 9.1 (Mandatory Prepayment on
Disposal)) (subject to Clause 9.2 (Amcare Disposal)) to 9.3
(Mandatory Prepayment on Change of Control or Sale of Business)
shall be applied in repayment across the Outstandings.
9.5.2 Any prepayment (other than as mentioned in sub-clause 9.5.1) of
Outstandings in respect of a Facility shall be applied across the
Advances then outstanding under such Facility in the manner
notified by the Original Borrower to the Agent at the time of
prepayment (or, if no such notice is given, pro rata but in any
event so that any such prepayment is applied so that each
Borrower effects a prepayment pro rata to its share of the
Outstandings.
9.6 PREPAYMENT ACCOUNTS
9.6.1 If Clause 9.1 (Mandatory Prepayment on Disposal)) (subject to
Clause 9.2 (Amcare Disposal)) to Clause 9.3 (Mandatory Prepayment
on Change of Control or Sale of Business) inclusive would require
the Original Borrower to procure the prepayment of any Advance
hereunder otherwise than at the end of an Interest Period, the
Original Borrower can elect (by written notice to the Agent to be
received not later than 11 a.m. three Business Days prior to the
date on which the prepayment obligation would, but for this
Clause 9.6 (Prepayment Accounts) arise) to credit the amount to
be repaid to the Mandatory Prepayment Account on the date on
which the prepayment obligation would, but for this Clause 9.6
(Prepayment Accounts), arise and to prepay the relevant Advance
at the first occurring end of an Interest Period relative to the
Advance to be repaid (where such Advance is at least equal to the
amount to be repaid unless the Outstandings under which such
Advance was made is less than the amount to be repaid). Following
any such election and provided the required payment is made to
the Mandatory Prepayment Account the obligation to prepay the
relevant Advance will not arise until the first occurring end of
an Interest Period relative to such Advance to be repaid.
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9.6.2 The Original Borrower hereby irrevocably authorises the Agent to
withdraw monies from the Mandatory Prepayment Account and apply
such monies against prepayments which are due to be made
hereunder or, upon the occurrence of an Event of Default which is
continuing, against any amounts due and payable under the Finance
Documents.
9.6.3 Any Bank with which such account is held acknowledges and agrees
that interest shall accrue at normal commercial rates on amounts
credited to the Mandatory Prepayment Account and the Holding
Account and that the account holder shall be entitled to receive
such interest (which shall be paid in accordance with the mandate
relating to such account) provided that the account holder shall
not be entitled to receive such interest while an Event of
Default is continuing.
10. CANCELLATION AND VOLUNTARY PREPAYMENT
10.1 CANCELLATION
The Parent may, by giving to the Agent not less than five Business Days'
prior notice to that effect, cancel the whole or any part (being an
amount of not less than (pounds sterling)1,000,000 and an integral
multiple of (pounds sterling)1,000,000) of the Available Facility. Any
such cancellation shall reduce the Available Commitments of the Banks in
respect of the Available Facility rateably.
10.2 PREPAYMENT OF THE OUTSTANDINGS
10.2.1 The Borrower to which an Advance has been made may, if it has
given to the Agent not less than five Business Days' prior notice
to that effect, prepay the whole of any Advance or any part of
any Advance (being an amount such that the Sterling Amount of
such Advance will be reduced by an amount of not less than
(pounds sterling)1,000,000 and an integral multiple of
(pounds sterling)1,000,000) on the last day of any Interest
Period relating to that Advance (or at any other time subject to
payment of the appropriate breakage costs in accordance with
Clause 25.4 (Break Costs).
10.2.2 Any prepayment of Outstandings in respect of the Facility shall
satisfy pro tanto the obligations under Clause 8 (Repayment) in
respect of Outstandings under the Facility pro rata.
10.2.3 Any prepayment of Outstandings in respect of the Facility shall
be applied across the Advances then outstanding under the
Facility in the manner notified by the Parent to the Agent at the
time of prepayment (or, if no such notice is given, pro rata).
10.3 EARLY PREPAYMENT FEE
If a voluntary prepayment or a mandatory prepayment within the terms of
Clause 9 (Mandatory Prepayment) of the whole of any part of the Facility
is made prior to the first anniversary of the date hereof consequent upon
a refinancing implemented through the bank or debt capital markets, the
Borrower shall pay to the Agent to the account of
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the Banks a fee of an amount equal to 2% (two per cent.) of the amount of
the Facility so prepaid.
10.4 NOTICE OF CANCELLATION OR PREPAYMENT
Any notice of cancellation or prepayment given by a Borrower pursuant to
this Clause 10 (Cancellation and Voluntary Prepayment) shall be
irrevocable, shall specify the date upon which such cancellation or
prepayment is to be made and the amount of such cancellation or
prepayment and, in the case of a notice of prepayment, shall oblige the
relevant Borrower to make such prepayment on such date.
10.5 NOTICE OF REMOVAL OF A BANK
If:
10.5.1 any sum payable to any Bank by an Obligor is required to be
increased pursuant to Clause 11.1 (Tax Gross-up); or
10.5.2 any Bank claims indemnification from an Obligor under Clause 11.2
(Tax Indemnity) or Clause 13.1 (Increased Costs),
the Parent may, whilst such circumstance continues, give the Agent at
least five Business Days notice (which notice shall be irrevocable) of
its intention (a) if such circumstance relates to a Bank to cancel and
repay.
10.6 REMOVAL OF A BANK
On the day the notice referred to in Clause 10.5 (Notice of Removal of a
Bank) expires each Borrower to which an Advance has been made shall repay
(without incurring the prepayment fee payable under Clause 13.5
(Prepayment Fee) such Bank's portion of each such Advance.
10.7 NO FURTHER AVAILABILITY
A Bank for whose account a repayment is to be made under Clause 10.6
(Removal of a Bank) shall not be obliged to participate in the making of
Advances on or after the date upon which the Agent receives the Parent's
notice of its intention to procure the repayment of such Bank's share of
the Outstandings, and such Bank's Available Commitment shall be reduced
to zero.
10.8 NO OTHER REPAYMENTS OR CANCELLATION
The Borrowers shall not repay or cancel all or any part of the
Outstandings except at the times and in the manner expressly provided for
in this Agreement.
10.9 NO REBORROWING
None of the Borrowers shall be entitled to reborrow any amount of the
Facility which is repaid.
11. TAXES
11.1 TAX GROSS-UP
All payments to be made by an Obligor to any Finance Party hereunder
shall be made free and clear of and without deduction for or on account
of tax unless such Obligor is
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required to make such a payment subject to the deduction or withholding
of tax, in which case the sum payable by such Obligor (in respect of
which such deduction or withholding is required to be made) shall be
increased to the extent necessary to ensure that such Finance Party
receives a sum net of any withholding or deduction equal to the sum which
it would have received had no such deduction or withholding been made or
required to be made.
11.2 TAX INDEMNITY
Without prejudice to Clause 11.1 (Tax Gross-up), if any Finance Party is
required to make any payment of or on account of tax on or in relation to
any sum received or receivable hereunder (including any sum deemed for
the purposes of tax to be received or receivable by such Finance Party
whether or not actually received or receivable) or if any liability in
respect of any such payment is asserted, imposed, levied or assessed
against any Finance Party, the Parent shall, upon demand of the Agent,
promptly indemnify the Finance Party which suffers a loss or liability as
a result against such payment or liability together with any interest,
penalties, costs and expenses payable or incurred in connection
therewith, PROVIDED THAT this Clause 11.2 (Tax Indemnity) shall not apply
to:
11.2.1 any tax imposed on and calculated by reference to the net income
actually received or receivable by such Finance Party (but, for
the avoidance of doubt, not including any sum deemed for purposes
of tax to be received or receivable by such Finance Party but not
actually receivable) by the jurisdiction in which such Finance
Party is incorporated or resident for tax purposes; or
11.2.2 any tax imposed on and calculated by reference to the net income
of the relevant Facility Office of such Finance Party actually
received or receivable by such Finance Party (but, for the
avoidance of doubt, not including any sum deemed for purposes of
tax to be received or receivable by such Finance party but not
actually receivable) by the jurisdiction in which such Facility
Office is located.
11.3 BANKS' TAX STATUS CONFIRMATION
Each Bank confirms in favour of the Agent (on the date hereof or, in the
case of a Bank which becomes a party hereto pursuant to a transfer or
assignment, on the date on which the relevant transfer or assignment
becomes effective) that either:
11.3.1 it is a bank as defined for the purposes of Section 349 of the
Income and Corporation Taxes Act 1988 and it is within the charge
to United Kingdom Corporation tax as respects interest payable to
it hereunder and is beneficially entitled to its share of the
Outstandings and the interest thereon; or
11.3.2 it is not resident for tax purposes in the United Kingdom and is
beneficially entitled to its share of the Outstandings and the
interest thereon,
and each Bank shall promptly notify the Agent if there is any change in
its position from that set out above.
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11.4 CLAIMS BY BANKS
A Bank intending to make a claim pursuant to Clause 11.2 (Tax Indemnity)
shall notify the Agent of the event or circumstance giving rise to the
claim as soon as reasonably practicable after its relevant Facility
Office has become aware of such event or circumstance, whereupon the
Agent shall notify the Parent thereof.
11.5 EXCLUDED CLAIMS
If any Bank is not or ceases to be a Qualifying Bank, no Obligor shall be
liable to pay to that Bank under Clause 11.1 (Tax Gross-Up) any amount in
respect of taxes levied or imposed in excess of the amount it would have
been obliged to pay if that Bank had been or had not ceased to be a
Qualifying Bank PROVIDED THAT this Clause 11.5 (Excluded Claims) shall
not apply (and each Obligor shall be obliged to comply with its
obligations under Clause 11.1 (Tax Gross-Up)) if:
11.5.1 after the date hereof and after the date when such Bank first
becomes a Bank for the purposes of this Agreement, there shall
have been any introduction of, change in, or change in the
interpretation, administration or application of, any law or
regulation or order or governmental rule or treaty or any
practice or concession of any applicable tax authority and as a
result thereof such Bank ceased to be a Qualifying Bank; or
11.5.2 such Bank is not or ceases to be a Qualifying Bank as a result of
the actions of or omission to act by any Obligor.
11.6 DOUBLE TAXATION RELIEF
If, and to the extent that, the effect of Clause 11.1 (Tax Gross-Up) or
Clause 11.2 (Tax Indemnity) can be mitigated by virtue of the provisions
of any Applicable Treaty (whether by a claim to repayment of any taxes
referred to in Clause 11.1 (Tax Gross-Up) or Clause 11.2 (Tax Indemnity)
or otherwise) each Bank agrees to co-operate with the relevant Obligor
with a view to submitting any forms required for the purpose of ensuring
the application of such double tax convention so far as relevant,
PROVIDED THAT no Bank shall be required pursuant to this Clause 11.6
(Double Taxation Relief) to complete or co-operate in completing any form
which is not substantially similar to any form in use at the date of this
Agreement for the purpose of claiming exemption or relief from or
repayment of taxes envisaged hereunder pursuant to an Applicable Treaty
between England and such Bank's jurisdiction of residence.
12. TAX RECEIPTS
12.1 NOTIFICATION OF REQUIREMENT TO DEDUCT TAX
If, at any time, an Obligor is required by law to make any deduction or
withholding from any sum payable by it hereunder (or if thereafter there
is any change in the rates at which or the manner in which such
deductions or withholdings are calculated), such Obligor shall promptly
notify the Agent.
12.2 EVIDENCE OF PAYMENT OF TAX
If an Obligor makes any payment hereunder in respect of which it is
required to make any deduction or withholding, it shall pay the full
amount required to be deducted or
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withheld to the relevant taxation or other authority within the time
allowed for such payment under applicable law and shall deliver to the
Agent for such Finance Party, within thirty days after it has made such
payment to the applicable authority, an original receipt (or a certified
copy thereof) issued by such authority evidencing the payment to such
authority of all amounts so required to be deducted or withheld in
respect of that Finance Party's share of such payment.
12.3 TAX CREDIT PAYMENT
If an additional payment is made under Clause 11 (Taxes) by an Obligor
for the benefit of any Finance Party and such Finance Party, in its sole
discretion, determines that it has obtained (and has derived full use and
benefit from) a credit against, a relief or remission for, or repayment
of, any tax, then, if and to the extent that such Finance Party, in its
sole opinion, determines that:
12.3.1 such credit, relief, remission or repayment is in respect of or
calculated with reference to the additional payment made pursuant
to Clause 11 (Taxes); and
12.3.2 its tax affairs for its tax year in respect of which such credit,
relief, remission or repayment was obtained have been finally
settled,
such Finance Party shall, to the extent that it can do so without
prejudice to the retention of the amount of such credit, relief,
remission or repayment, pay to such Obligor such amount as such Finance
Party shall, in its sole opinion, determine to be the amount which will
leave such Finance Party (after such payment) in no worse after-tax
position than it would have been in had the additional payment in
question not been required to be made by such Obligor.
12.4 TAX CREDIT CLAWBACK
If any Finance Party makes any payment to an Obligor pursuant to Clause
12.3 (Tax Credit Payment) and such Finance Party subsequently determines,
in its sole opinion, that the credit, relief, remission or repayment in
respect of which such payment was made was not available or has been
withdrawn or that it was unable to use such credit, relief, remission or
repayment in full, such Obligor shall reimburse such Finance Party such
amount as such Finance Party determines, in its sole opinion, is
necessary to place it in the same after-tax position as it would have
been in if such credit, relief, remission or repayment had been obtained
and fully used and retained by such Finance Party.
12.5 TAX AND OTHER AFFAIRS
No provision of this Agreement shall interfere with the right of any
Finance Party to arrange its tax or any other affairs in whatever manner
it thinks fit, oblige any Finance Party to claim any credit, relief,
remission or repayment in respect of any payment under Clause 11.1 (Tax
Gross-up) in priority to any other credit, relief, remission or repayment
available to it nor oblige any Finance Party to disclose any information
relating to its tax or other affairs or any computations in respect
thereof.
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13. INCREASED COSTS
13.1 INCREASED COSTS
If, by reason of (a) any change in law or in its interpretation or
administration and/or (b) compliance with any request or requirement
relating to the maintenance of capital or any other request from or
requirement of any central bank or other fiscal, monetary or other
authority (including, for the avoidance of doubt, any minimum reserve
requirements imposed by the European Central Bank) (in each case after
the date of this Agreement):
13.1.1 a Bank or any holding company of such Bank is unable to obtain
the rate of return on its capital which it would have been able
to obtain but for such Bank's entering into or assuming or
maintaining a commitment, issuing or performing its obligations
under the Finance Documents;
13.1.2 a Bank any holding company of such Bank incurs a cost as a result
of such Bank's entering into or assuming or maintaining a
commitment, issuing or performing its obligations under the
Finance Documents; or
13.1.3 there is any increase in the cost to a Bank or any holding
company of such Bank of funding or maintaining such Bank's share
of the Advances or any Unpaid Sum,
(including, without limitation, any such circumstance (other than any
such circumstance which is existing on the date hereof and is applicable
to such Bank or any holding company of such Bank on the date hereof)
which results from the introduction or changeover to the Sterling in any
Participating Member State) then the Parent shall, from time to time on
demand of the Agent, promptly pay to the Agent for the account of that
Bank amounts sufficient to indemnify that Bank or to enable that Bank to
indemnify its holding company from and against, as the case may be, (a)
such reduction in the rate of return of capital, (b) such cost or (c)
such increased cost.
13.2 INCREASED COSTS CLAIMS
A Bank intending to make a claim pursuant to Clause 13.1 (Increased
Costs) shall notify the Agent of the event or circumstance giving rise to
such claim as soon as reasonably practicable after its relevant Facility
Office has become aware of such event or circumstance, whereupon the
Agent shall notify the Parent thereof.
13.3 EXCLUSIONS
Notwithstanding the foregoing provisions of this Clause 13 (Increased
Costs), no Bank shall be entitled to make any claim in respect of:
13.3.1 any cost, increased cost or liability as referred to in Clause
13.1 (Increased Costs) to the extent the same is compensated by
the Associated Costs Rate; or
13.3.2 any cost, increased cost or liability compensated by Clause 11
(Taxes) or which would have been compensated by Clause 11 (Taxes)
if the provisions of Clause 11.5 (Excluded Claims) or sub-clauses
11.2.1 or 11.2.2 of Clause 11.2 (Tax Indemnity) had not applied;
or
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13.3.3 any cost, increased cost or liability arising by reason of a
breach by a Bank or their holding company of any law or
regulatory request.
14. ILLEGALITY
If, at any time, it is or will become unlawful for a Bank to make, fund,
issue, participate in or allow to remain outstanding all or part of its
share of the Advances, then that Bank shall, promptly after becoming
aware of the same, deliver to the Parent through the Agent a notice to
that effect and:
14.1.1 such Bank shall not thereafter be obliged to participate in any
Advance and the amount of its Available Commitment shall be
immediately reduced to zero; and
14.1.2 if the Agent on behalf of such Bank so requires, the Parent shall
procure that each Borrower shall either (a) as soon as
practicable and in any event within 5 days of such notice or (b)
on the date specified by such Banks through the Agent as being,
in its bona fide opinion, the last day of any applicable grace
period permitted by law repay such Bank's share of any
outstanding Advances together with accrued interest thereon and
all other amounts owing to such Bank under the Finance Documents
and any repayment of any Advance so made shall reduce rateably
the remaining obligations under Clause 8 (Repayment) in respect
of the outstandings under the Facility under which such Advance
was made.
15. MITIGATION
If, in respect of any Bank, circumstances arise which would or would upon
the giving of notice result in:
15.1.1 an increase in any sum payable to it or for its account pursuant
to Clause 11.1 (Tax Gross-up);
15.1.2 a claim for indemnification pursuant to Clause 11.2 (Tax
Indemnity) or Clause 13.1 (Increased Costs);
15.1.3 the reduction of its Available Commitment to zero or any
repayment to be made pursuant to Clause 14 (Illegality),
then, without in any way limiting, reducing or otherwise qualifying the
rights of such Bank or the obligations of the Obligors under any of the
Clauses referred to in sub-clauses 15.1.1, 15.1.2, 15.1.3 and 15.1.3,
such Bank shall, upon request by the Parent or relevant Borrower and, in
consultation with the Agent and the Parent and to the extent that it can
do so lawfully and without prejudice to its own position, take such steps
as may be reasonable and practical in all the circumstances (including a
change of location of such Facility Office or the transfer of its rights,
benefits and obligations hereunder to another financial institution
acceptable to the Parent and willing to participate in the Facilities) to
mitigate the effects of such circumstances, PROVIDED THAT such Bank shall
be under no obligation to take any such action if, in the opinion of
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such Bank, to do so might have any adverse effect upon its business,
operations or financial condition (other than any minor costs and
expenses of an administrative nature).
16. REPRESENTATIONS
Each Obligor makes the representations and warranties set out in Clause
16.1 (Status) to Clause 16.33 (Financial Model and Financial Projections)
to the Finance Parties on its own behalf and, in addition, the Parent
makes the representations set out therein to the Finance Parties on
behalf of each member of the Group, in each case save as specifically
disclosed in the Disclosure Letter. The Original Obligors acknowledge
that the Finance Parties have entered into this Agreement in reliance on
those representations and warranties. The representations and warranties
in Clause 16.16 (Information Memorandum) shall only be made on the dates
specified in Clause 16.35 (Repetition of Representations).
16.1 STATUS
It is a corporation duly organised and validly existing under the laws of
its jurisdiction of incorporation and is a limited liability corporation
and has the power and all necessary governmental and other material
consents, approvals, licences and authorisations under any applicable
jurisdiction to own its property and assets and to carry on its business
as currently conducted.
16.2 BINDING OBLIGATIONS
The obligations expressed to be assumed by it in the Finance Documents
are legal and valid obligations binding on it and enforceable against it
in accordance with the terms thereof, subject to the Legal Reservations.
16.3 EXECUTION AND POWER
In relation to the Finance Documents, its execution of the Finance
Documents to which it is be a party and its exercise of its rights and
performance of its obligations thereunder and the transactions
contemplated thereby (including, without limit, borrowing thereunder and
granting any security or guarantees contemplated thereunder) do not:
16.3.1 conflict with any agreement, mortgage, bond or other instrument
or treaty to which it is a party or which is binding upon it or
any of its assets; or
16.3.2 conflict with its constitutive documents; or
16.3.3 conflict with any applicable law or any applicable official or
judicial regulation or order.
It has the power to enter into and perform its obligations under the
Finance Documents to which it is a party and all corporate and other
action required to authorise the execution, delivery and performance of
the Finance Documents to which it will be a party and the transactions
contemplated therein has been duly taken. No limit on its
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powers will be exceeded as a result of the borrowings, granting of
security or giving of guarantees contemplated by the Finance Documents to
which it is a party.
16.4 NO MATERIAL PROCEEDINGS
16.4.1 No action or administrative proceeding of or before any court,
arbitrator or agency (including, but not limited to,
investigative proceedings) which could reasonably be expected to
have a Material Adverse Effect has been started or (to the best
of its knowledge or belief) threatened against it or its assets,
nor are there any circumstances likely to give rise to any such
action or proceedings.
16.4.2 It is not aware of any other event or circumstance which could
reasonably be expected to have a Material Adverse Effect.
16.5 FINANCIAL STATEMENTS
16.5.1 Its most recent audited financial statements delivered to the
Agent pursuant to Clause 17.1 (Annual Statements) (consolidated
in the case of the Parent):
(a) were prepared in accordance with UK GAAP and consistently
applied and comply with Clause 17.9 (Accounting Policies);
(b) disclose all liabilities (contingent or otherwise) and all
unrealised or anticipated losses of such Obligor or, as the
case may be, any member of the Group to the extent required
by the applicable accounting principles referred to in
Clause 17.9 (Accounting Policies); and
(c) give a true and fair view of (in the case of audited
financial statements) or fairly present in all material
respects (in the case of unaudited financial statements) the
financial condition and the results of the operations of
such Obligor or, as the case may be, the Group during the
relevant period.
16.5.2 Its financial year end and, in the case of the Parent, the
financial year end of the Group is 30 September.
16.6 NO MATERIAL ADVERSE CHANGE
Since 16 December 1999 (being the date as at which the Accountants Report
was prepared), there has been no change in the assets, property,
business, financial condition, or results of the Group taken as a whole
which could reasonably be expected to have a Material Adverse Effect.
16.7 VALIDITY AND ADMISSIBILITY IN EVIDENCE
All acts, conditions and things required to be done, fulfilled and
performed in order:
16.7.1 to enable it lawfully to enter into, exercise its rights under
and perform and comply with the obligations expressed to be
assumed by it in the Finance Documents;
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16.7.2 to ensure that the obligations expressed to be assumed by it in
the Finance Documents are legal, valid, binding and enforceable;
and
16.7.3 to make the Finance Documents admissible in evidence in its
jurisdiction of incorporation,
have been done, fulfilled and performed subject to any Legal
Reservations.
16.8 CLAIMS PARI PASSU
Under the laws of its jurisdiction of incorporation in force at the date
hereof, the claims of the Finance Parties against it under the Finance
Documents will rank to the extent that they are secured pursuant to a
Security Document, prior to and otherwise at least pari passu with the
claims of all its other unsecured and unsubordinated creditors save those
whose claims are preferred solely by any bankruptcy, insolvency,
liquidation or other similar laws of general application.
16.9 NO FILING OR STAMP TAXES
Under the laws of its jurisdiction of incorporation in force at the date
hereof, it is not necessary that the Finance Documents be filed, recorded
or enrolled with any court or other authority in such jurisdiction or
that any stamp, registration or similar tax be paid on or in relation to
the Finance Documents save for any filing or recording of or tax payable
in connection with any Security Document which is referred to in the
Legal Opinions and which will be effected or paid promptly after the date
hereof. For the purposes of this Clause 16.9 a Transfer Certificate shall
not be a Finance Document.
16.10 NO IMMUNITY
In any proceedings taken in its jurisdiction of incorporation in relation
to the Finance Documents, it will not be entitled to claim for itself or
any of its assets immunity from suit, execution, attachment or other
legal process.
16.11 REPORTS
The Reports have been prepared after due and careful consideration and
the Parent (and its executive directors), having made all reasonable
enquiries in the circumstances:
16.11.1 is not aware of any material inaccuracy as to factual matters
relating to the Business contained in the Reports which render
the Reports misleading in any material respect;
16.11.2 does not (as at the date hereof) regard as unreasonable or
unattainable any of the forecasts or projections set out in any
of the Reports;
16.11.3 believes (having made all reasonable enquiries) the assumptions
upon which the forecasts and projections in relation to the
Business contained in the Reports are based to be fair and
reasonable; and
16.11.4 is not aware of any facts or matters not stated in the Reports,
the omission of which make any statements contained therein
misleading in any material respect;
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16.11.5 has made full disclosure of all material facts known to it
(having made all reasonable enquiries) to all the persons
responsible for the preparing of Reports in relation to the
Parent and the Group where failure to disclose such facts could
be reasonably likely to render the Reports misleading in any
material respect; and
16.11.6 consider that the Accountants Report fairly presented in all
material respects the financial condition and the results of the
operations of the Business during the periods referred to
therein.
16.12 GROUP STRUCTURE
16.12.1 The Group Structure Chart delivered to the Agent pursuant to
Schedule 3 (Conditions Precedent) is true, complete and accurate.
16.12.2 All necessary inter-company loans, transfers, share exchanges and
other steps resulting in the final Group structure set out in the
Group Structure Chart have been taken in compliance in all
material respects with all relevant laws and regulations and all
requirements of relevant regulatory authorities.
16.13 NO INSOLVENCY PROCEEDINGS
No Material Subsidiary has taken any corporate action nor have any other
steps been taken or insolvency proceedings been started or (to the best
of its knowledge and belief having made all reasonable enquiry)
threatened against any Material Subsidiary (whether by voluntary
arrangement, scheme of arrangement or otherwise save for any solvent
reorganisation previously approved by an Instructing Group in writing,
such approval not to be unreasonably withheld) or for the enforcement of
an Encumbrance over all or any of its revenues or assets or for the
appointment of a receiver, administrator, administrative receiver,
conservator, custodian, trustee, or similar officer of it or of any or
all of its assets or revenues.
16.14 NO MATERIAL DEFAULTS
No member of the Group:
16.14.1 is in breach of or in default under any agreement to which it is
a party or which is binding on it or any of its assets to an
extent or in a manner which could reasonably be expected to have
a Material Adverse Effect; or
16.14.2 is or is likely to be in breach of or in default under any
agreement to which it is party or which is binding on it or any
of its assets as a result of entering into and performing its
obligations under the Finance Documents to an extent or in a
manner which could reasonably be expected to have a Material
Adverse Effect.
16.15 INFORMATION
16.15.1 All of the written information (taken as a whole) supplied by the
Parent, any Obligor and any advisers of the Parent and/or any
Obligor to the Agent and/or the Banks and/or their advisers in
connection with the Finance Documents and/or a Permitted
Acquisition or Permitted Equity Funded Acquisition is
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true, complete and accurate in all material respects as at the
date such information was supplied and is not misleading in any
material respect.
16.15.2 The forecasts and projections contained in the Business Plan and
TW US Strategy Paper were made in good faith and based on
opinions and assumptions which its directors believe were
reasonable to hold and reasonable to make at the time of supply.
16.15.3 The Parent has not knowingly failed to disclose to the Agent any
material facts or circumstances which would be reasonably likely,
if disclosed, to adversely affect the decision of a person
considering whether or not to provide finance to the Borrowers.
16.16 INFORMATION MEMORANDUM
The factual information contained in the Information Memorandum is true,
complete and accurate in all material respects, the financial projections
contained therein have been prepared in good faith on the basis of recent
historical information and on the basis of fair and reasonable
assumptions and after careful consideration, all material statements of
opinion/intention and expectation were made in good faith and after
careful consideration and nothing has occurred or been omitted that
renders the information contained in the Information Memorandum
inaccurate or misleading in any material respect.
16.17 ENVIRONMENTAL COMPLIANCE
Each member of the Group has duly performed and observed in all material
respects all Environmental Law, Environmental Permits and all other
material covenants, conditions, restrictions or agreements directly or
indirectly concerned with any contamination, pollution or waste or the
release or discharge of any toxic or hazardous substance in connection
with any real property which is or was at any time owned, leased or
occupied by any member of the Group or on which any member of the Group
has conducted any activity where failure to do so could reasonably be
expected to have a Material Adverse Effect.
16.18 ENVIRONMENTAL CLAIMS
No Environmental Claim has been commenced or (to the best of the Parent's
knowledge and belief) is threatened against any member of the Group where
such claim could be reasonably be expected, if determined against such
member of the Group, to have a Material Adverse Effect.
16.19 ENCUMBRANCES AND FINANCIAL INDEBTEDNESS
16.19.1 Save for Permitted Encumbrances, no Encumbrance exists over all
or any of the present or future revenues, assets or undertakings
of any member of the Group.
16.19.2 Save for Permitted Indebtedness, it has no Financial
Indebtedness.
16.19.3 The execution of the Finance Documents to which it is a party and
the exercise by it of its rights thereunder will not result in
the existence or
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imposition of nor oblige any Group member to create any
Encumbrance (save for Permitted Encumbrances) in favour of any
person over any of its present or future revenues, assets or
undertakings.
16.20 CONTROL OF THE PARENT
The Trustee for and on behalf of the beneficiaries named therein (as
defined in the Voting Trust Agreement) has and will have control of the
Parent.
16.21 PARENT AND ORIGINAL BORROWER
The Parent and the Original Borrower are and will be holding companies
and do not and will not carry on any other business save as permitted
pursuant to Clause 20.33 (The Parent) and Clause 20.34 (The Original
Borrower).
16.22 NO EVENT OF DEFAULT
No Event of Default or Potential Event of Default has occurred which is
continuing save for any Event of Default or Potential Event of Default
notified to the Agent pursuant to Clause 20.4 (Notification of Events of
Default).
16.23 CONSENTS AND APPROVALS
All necessary consents, licences, authorisations and approvals to the
transactions constituted by a Permitted Acquisition or a Permitted Equity
Funded Acquisition and the Finance Documents have been obtained on or
prior to the date of the relevant acquisition and all consents, licences,
authorisations and other approvals necessary for the conduct of the
business of the Group as carried on at the date hereof have been, or when
required will be obtained, their terms and conditions have been, or once
required, will be complied with in all material respects and they have
not been and, so far as it is aware, will not be revoked or otherwise
terminated.
16.24 TAXATION
16.24.1 Each Group member has duly and punctually paid and discharged all
taxes, assessments and governmental charges imposed upon it or
its assets within the time period allowed therefor without
imposing tax penalties or creating any Encumbrance with priority
to the Banks or the security granted or evidenced by the Security
Documents (save to the extent payment thereof is being contested
in good faith by the relevant Group member and adequate reserves
are being maintained for those taxes and where payment thereof
can lawfully be withheld and would not result in an Encumbrance
with priority to the security created or evidenced by the
Security Documents; in relation to the representation made under
this Clause 16.24 (Taxation) on the date hereof, this proviso
shall only apply to the extent any such payment has been
previously disclosed to the Agent in writing) save that no breach
of this representation in relation to the payment and discharge
of all taxes, assessments and governmental charges imposed on
each Group member or its assets shall occur unless such payment
and discharge would result in a liability against any member of
the Group in excess of (pounds)500,000.
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16.24.2 No Group member is materially overdue in the filing of any tax
returns which would result in a liability against any Group
Member in excess of (pounds)500,000.
16.24.3 No claims are being or are reasonably likely to be asserted
against any Group member with respect to taxes which could be
reasonably expected to have a Material Adverse Effect.
16.25 SECURITY INTEREST
Subject to the Legal Reservations, each Security Document to which it is
a party creates the security interest which that Security Document
purports to create or, if that Security Document purports to evidence a
security interest, accurately evidences a security interest which has
been validly created and each security interest ranks in priority as
specified in the Security Document creating or evidencing that interest.
16.26 INTELLECTUAL PROPERTY
It is not aware of any adverse circumstance relating to validity,
subsistence or use of any of its Intellectual Property which could
reasonably be expected to have a Material Adverse Effect.
16.27 GOOD TITLE TO ASSETS
It has good title to or valid leases of or other appropriate licence,
authorisation or consent to use its assets necessary to carry on its
business as presently conducted.
16.28 LEGAL AND BENEFICIAL OWNER
It is the absolute legal (subject to the Voting Trust Agreement in
respect of the Parent and the Original Borrower any necessary
registrations in the books of the entity whose shares are being charged
or any other legal formalities referred to in the Legal Opinions which
will be effected promptly after the date hereof) and, where applicable,
beneficial owner of all its assets subject to any Permitted Encumbrances
and to any security granted under the Security Documents to which it is a
party.
16.29 ISSUE OF SHARE CAPITAL
Save to the extent contemplated in Clause 20.23 (Share Capital) or in the
Securities Purchase Agreement there are no agreements in force or
corporate resolutions passed which call for the present or further issue
or allotment of, or grant to any person the right (whether conditional or
otherwise) to call for the issue or allotment of any share, loan note or
loan capital of the Parent or any Group member (including an option or
right of pre-emption or conversion).
16.30 NO TRADING
Save as contemplated by, or otherwise in connection with this Agreement,
the Finance Documents, the Senior Finance Documents and the Acquisition
Documents and the transactions contemplated hereby or thereby, neither
the Parent nor the Original Borrower has not traded or undertaken any
commercial activities of any kind and has any liabilities or obligations
(actual or contingent).
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16.31 PENSIONS
Each member of the Group is in material compliance with all applicable
laws and contracts relating to the pension schemes (if any) operated by
it or in which it participates and has no material unrecorded or
unindemnified liabilities in respect of such schemes which could
reasonably be expected to have a Material Adverse Effect.
16.32 YEAR 2000 COMPLIANCE
The Parent believes (having made all reasonable enquiries) that the Year
2000 problem (that is, the risk that any computer hardware or software or
any equipment operated by electronic means used by the Group may be
unable to recognise and perform properly date-sensitive functions
involving a date before, on or after 31 December 1999) could not
reasonably be expected to have a Material Adverse Effect.
16.33 FINANCIAL MODEL AND FINANCIAL PROJECTIONS
The Financial Model and any future projections prepared for the purposes
of any Permitted Acquisition have been prepared on a basis that is in all
material respects consistent with UK GAAP.
16.34 PROPERTY
No single freehold, feuhold, leasehold or heritable property owned by any
Obligor has a value in excess of (pounds sterling)500,000.
16.35 REPETITION OF REPRESENTATIONS
16.35.1 The Repeated Representations shall be deemed to be repeated by
the relevant Obligor by reference to the then existing facts and
circumstances on the date hereof, the date each Notice of
Drawdown is given, on the first day of each Interest Period, on
each date on which an Advance is or is to be made (or any Advance
is rolled over), and on each date on which a company becomes (or
it is proposed that a company becomes) an Additional Obligor and
at the end of each Financial Quarter of the Group.
16.35.2 Clause 16.16 (Information Memorandum) shall be deemed to be made
only on the date that the Information Memorandum is approved by
the Parent and on the Syndication Date.
17. FINANCIAL INFORMATION
17.1 ANNUAL STATEMENTS
The Parent shall as soon as the same become available, but in any event
within 120 days after the end of each of its financial years, deliver to
the Agent in sufficient copies for the Banks the financial statements of
the Group and each Group member on a consolidated and consolidating basis
for such financial year, audited by an internationally recognised firm of
independent auditors licensed to practise in its jurisdiction of
incorporation, and the related auditor's and director's reports.
Such annual statements shall include a balance sheet, profit and loss
account and cash flow statement.
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17.2 QUARTERLY STATEMENTS
The Parent shall as soon as the same become available, but in any event
within 45 days after the end of each quarter of each of its financial
years, deliver to the Agent in sufficient copies for the Banks the
consolidated financial statements of the Group for such period.
Such quarterly statements shall be in a form reasonably acceptable to the
Agent and shall include a balance sheet, profit and loss account and cash
flow statement, and (other than in respect of quarterly statements in
respect of any financial quarter falling in 1999) a comparison with the
financial statements for the same financial quarter of the previous year
and a description of significant acquisitions and disposals, and other
transactions or events which are material in the context of the Group
occurring in that financial quarter and the financial year to date.
17.3 MONTHLY MANAGEMENT STATEMENTS
The Parent shall as soon as the same become available but in any event
within 30 days after the end of each month deliver to the Agent in
sufficient copies for the Banks the consolidated financial statements of
the Group for such period.
Such monthly accounts shall be on a month-to-month and cumulative basis
and in a form reasonably acceptable to the Agent and shall include a
balance sheet, profit and loss account and cashflow statements and
provide a management commentary thereon as to, inter alia, the Group's
performance during such month and the financial year to date and any
material developments or proposals affecting the Group or its business.
17.4 ANNUAL BUDGET
The Parent shall, as soon as the same become available, and in any event
no later than 10 days prior to the beginning of any financial year,
deliver to the Agent in sufficient copies for the Banks an annual Budget
(in form reasonably acceptable to the Agent) prepared by reference to
each month in respect of such financial year of the Group including:
17.4.1 forecasts of projected disposals other than in the ordinary
course of trade (including timing and amount thereof) on a
consolidated basis of the Group for such financial year;
17.4.2 projected annual profit and loss accounts (including turnover and
operating costs) for and projected balance sheets and cash flow
statements on a monthly basis for such financial year on a
consolidated basis for the Group;
17.4.3 projected Capital Expenditure to be incurred on a monthly basis
for such financial year on a consolidated basis for the Group;
17.4.4 projected EBIT as at the end of each month in such financial
year;
17.4.5 a quantitative analysis and commentary for the management on its
proposed activities for such financial year;
17.4.6 a comparison against the Business Plan forecast for such period.
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The Parent shall forthwith provide the Agent with details of any material
changes in the projections delivered under this Clause 20.4 (Annual
Budget) as soon as it becomes aware of any such change.
17.5 OTHER REPORTS AND FILINGS
The Parent shall, as soon as the same become available, but in any event
within 30 days after the filing thereof, deliver to the Agent in
sufficient copies for the Banks copies of any and all reports (whether on
Form 10-K, Form 10-Q or otherwise), proxy materials and other information
and documents, if any, which TW US shall file with the U.S. Securities
and Exchange Commission or any governmental agencies substituted therefor
under the U.S. Securities Act of 1933, as amended, or the U.S. Securities
Exchange Act of 1934, as amended.
17.6 REQUIREMENTS AS TO FINANCIAL STATEMENTS
The Parent shall ensure that each set of financial statements delivered
by it pursuant to this Clause 17 (Financial Information) is certified by
an Authorised Signatory of the Parent as giving a true and fair view of
(in the case of audited financial statements) or fairly presents in all
material respects (in the case of unaudited financial statements) the
consolidated financial condition of the Group as at the end of the period
to which those financial statements relate and of the results of the
Group's operations during such period.
17.7 COMPLIANCE CERTIFICATES
The Parent shall ensure that each set of financial statements delivered
by it pursuant to Clause 17.1 (Annual Statements) and Clause 17.2
(Quarterly Statements) is accompanied by a Compliance Certificate signed
by the Parent's auditors (in the case of a Compliance Certificate
delivered with the annual financial statements of the Group) and by the
Group Finance Director and one other director of the Parent (in the case
of a Compliance Certificate delivered with the Parent's annual or its
quarterly financial statements). Each Compliance Certificate shall
provide sufficient information to determine which subsidiaries of the
Parent are Material Subsidiaries.
17.8 OTHER FINANCIAL INFORMATION
Each Obligor shall from time to time on the request of the Agent, furnish
the Agent with such information about the business or financial condition
of the Group as the Agent or any Bank (through the Agent) may reasonably
require and, for the avoidance of any doubt, it shall be reasonable for a
Bank (through the Agent) to require copies of the annual financial
statements of any Obligor.
17.9 ACCOUNTING POLICIES
The Parent shall ensure that each set of financial statements delivered
by the Parent pursuant to this Clause 17 (Financial Information) is
prepared using UK GAAP (with normal period end adjustments for monthly
and quarterly accounts) consistent with those applied in the preparation
of the Business Plan (the "REFERENCE ACCOUNTING POLICIES") unless, in
relation to any such set of financial statements, the Parent notifies the
Agent that there have been one or more changes in any such accounting
policies,
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practices, procedures and reference period and in which case the Parent
shall procure that its auditors provide:
17.9.1 a description of the changes and the adjustments which would be
required to be made to those financial statements if they have
been prepared using the Reference Accounting Policies; and
17.9.2 sufficient information, in such detail and format as may be
reasonably required by the Agent, to enable the Banks to make an
accurate comparison between the financial position indicated by
those financial statements and the Business Plan or, as the case
may be, any accounts previously delivered under Clauses 17.1,
(Annual Statements) 17.2 (Quarterly Statements) and 17.3 (Monthly
Management Statements).
If there has been a change in accounting policies, practices, procedures
or reference period and the description and information required by this
Clause 17.9 (Accounting Policies) have been provided by the auditors in
connection with such change and any amendments have been agreed pursuant
to Clause 17.10 (Change in Accounting Policy) in connection with such
change, then such change shall become part of the normal accounting
policies, practices, procedures and reference period as if it were used
in the preparation of the Reference Accounting Policies.
17.10 CHANGE IN ACCOUNTING POLICIES
If there has been one or more such changes in any accounting policies,
practices or procedures or reference period:
17.10.1 the Agent and the Parent shall, at the Agent's or the Parent's
request, negotiate in good faith with a view to agreeing such
amendments to the financial covenants in Clause 19 (Financial
Condition) and the definitions used therein as may be necessary
to grant to the Banks protection comparable to that granted on
the date hereof, and any amendments as agreed will have effect on
the date agreed between the Agent and the Parent; and
17.10.2 if no such agreement is reached within 30 days of the Agent's
request, the Agent shall (if so requested by an Instructing
Group) instruct the auditors of the Parent or independent
accountants (approved by the Parent or, in the absence of such
approval within 5 days of request by the Agent therefor, a firm
with internationally recognised expertise) to determine any
amendment to Clause 19 (Financial Condition) which those auditors
or, as the case may be, accountants (acting as experts and not
arbitrators) consider appropriate to grant to the Banks
protection comparable to that granted on the date hereof, which
amendments shall take effect when so determined by those
auditors, or as the case may be, accountants. Where such auditors
or accountants are instructed hereunder, the cost and expense of
those auditors or accountants shall be for the account of the
Parent.
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18. OTHER INFORMATION
18.1 SHAREHOLDER INFORMATION
The Parent shall, as soon as reasonably practicable, after the same are
supplied or made available, furnish the Agent with such general
information as is required by law to be supplied or made available to all
shareholders (in their capacity as such) of the Parent or, in the case of
any Obligor, their creditors generally or any class thereof.
18.2 AUDITOR'S LETTER
The Parent shall at the reasonable request of the Agent require and
authorise its auditors to discuss with the Agent the information and
other matters related to or arising out of the annual audit of the Group
by the auditors for the time being of the Parent.
18.3 LITIGATION AND ENVIRONMENTAL CLAIMS
The Parent shall advise the Agent promptly upon becoming aware of the
same of the details of:
18.3.1 each litigation, arbitration or administrative proceeding pending
or reasonably likely to be commenced against any member of the
Group which would, if adversely determined, result in liability
of such member of the Group in an amount in excess of
(pounds sterling)500,000; and
18.3.2 each Environmental Claim which would involve liability or
expenditure in excess of (pounds sterling)500,000.
18.4 SHAREHOLDERS
The Parent shall promptly inform the Agent in writing upon any transfer
of any legal or beneficial ownership of the Borrower and itself or any
change of control of such shares of which it is aware and such notice
shall include details of the previous owner or controller and the new
owner or controller and the number and type of shares affected.
18.5 INFORMATION COVENANTS
The Parent shall procure that any notices required to be delivered to the
Agent under Clause 20 (Covenants) are delivered in accordance with such
clause.
19. FINANCIAL CONDITION
19.1 FINANCIAL COVENANTS
The Parent shall ensure that the financial condition of the Group shall
be such that:
19.1.1 Senior Interest Cover Ratio: Interest Cover for each Relevant
Period specified in Column 1 below shall not be less than the
ratio set out in Column 2 below opposite each Relevant Period.
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COLUMN 1 COLUMN 2
RELEVANT PERIOD RATIO (TO 1.0)
(ENDING ON)
Date hereof - 31 March 2000 2.45
Date hereof - 30 June 2000 2.45
Date hereof - 30 September 2000 2.70
1 January 2000 - 31 December 2000 2.70
1 April 2000 - 31 March 2001 2.70
1 July 2000 - 30 June 2001 2.70
1 October 2000 - 30 September 2001 3.15
1 January 2001 - 31 December 2001 3.15
1 April 2001 - 31 March 2002 3.15
1 July 2001 - 30 June 2002 3.15
1 October 2001 - 30 September 2002 4.05
1 January 2002 - 31 December 2002 4.05
1 April 2002 - 31 March 2003 4.05
1 July 2002 - 30 June 2003 4.05
1 October 2002 - 30 September 2003 4.50
Each 12 month period ending on a Quarter Date 4.50
falling after 30 September 2003
"INTEREST COVER" means, in relation to any Relevant Period, the
ratio of EBITA to Net Senior Cash Interest for such Relevant
Period.
19.1.2 Fixed Charge Cover: Fixed Charge Cover for each Relevant Period
specified in column 1 below shall not be less than the ratio set
out in column 2 below opposite such Relevant Period.
COLUMN 1 COLUMN 2
RELEVANT PERIOD RATIO (TO 1.0)
1 January 2000 - 30 June 2000 0.9
1 January 2000 - 30 September 2000 0.9
1 January 2000 - 31 December 2000 0.9
1 April 2000 - 30 March 2001 0.9
Each 12 month period ending on a Quarter Date 0.9
falling after 30 March 2001
"FIXED CHARGE COVER" means, in relation to any Relevant Period,
the ratio of Cash Flow to Net Debt Service for such Relevant
Period.
19.1.3 Debtor Days: The Parent shall ensure that on each Quarter Date,
the Debtor Days shall not exceed 82.
19.1.4 Net Worth: Consolidated Net Worth shall not at any time during
each period specified in column 1 below be less than the amount
specified in column 2 below opposite such Relevant Period.
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COLUMN 1 COLUMN 2
FINANCIAL YEAR ENDING Amount (pounds)
(million)
Date hereof - 29 September 2001 18.0 + X
30 September 2001 - 29 September 2002 19.8 + X
30 September 2002 - 29 September 2003 22.5 + X
30 September 2003 - 29 September 2004 27.0 + X
30 September 2004 - 29 September 2005 31.5 + X
Each 12 month period ending on 29 September 31.5 + X
after 29 September 2005
"X" means adjusted as appropriate to take account of any
revaluation arising out of the consolidation of the Group.
19.1.5 Total Net Debt Cover Ratio: Total Net Debt Cover as at the end of
each Relevant Period specified in Column 1 below shall not be
more than the ratio set out in Column 2 below opposite such
Relevant Period.
COLUMN 1 COLUMN 2
RELEVANT PERIOD RATIO (TO 1.0)
(ENDING ON)
1 January 2000 - 31 March 2000 4.05
1 January 2000 - 30 June 2000 4.05
1 January 2000 - 30 September 2000 4.05
1 January 2000 - 31 December 2000 4.05
1 April 2000 - 31 March 2001 4.05
1 July 2000 - 30 June 2001 4.05
1 October 2000 - 30 September 2001 3.82
1 January 2001 - 31 December 2001 3.82
1 April 2001 - 31 March 2002 3.82
1 July 2001 - 30 June 2002 3.82
1 October 2001 - 30 September 2002 3.15
1 January 2002 - 31 December 2002 3.15
1 April 2002 - 31 March 2003 3.15
1 July 2002 - 30 June 2003 3.15
1 October 2002 - 30 September 2003 2.70
1 January 2003 - 31 December 2003 2.70
1 April 2003 - 31 March 2004 2.70
1 July 2003 - 30 June 2004 2.70
1 October 2003 - 30 September 2004 2.25
Each 12 month period ending on a Quarter Date 2.25
falling after 30 September 2004
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"TOTAL NET DEBT COVER" means, in relation to any Relevant Period,
the ratio of Total Net Debt as at the last day of such period to
EBITDA for such period.
19.1.6 Capital Expenditure: The Group shall not in any financial year
incur a greater amount of Capital Expenditure than is specified
in the annual Budget relating to such financial year.
19.2 CALCULATIONS
For the purpose of calculating Total Net Debt Cover:
In relation to any Relevant Period ending on or before 30 September 2000,
EBITDA shall be determined on a rolling 12 month basis and shall be
calculated by annualising actual EBITDA, in respect of the period from 1
January 2000 to the last day of the Relevant Period.
19.3 FINANCIAL DEFINITIONS
In Clause 19 (Financial Condition) the following terms have the following
meanings.
"APPROVED ACCOUNTING PRINCIPLES" means UK GAAP.
"AVERAGE DAILY SALES" means, the total sales during the relevant quarter
divided by the number of days in that quarter.
"CASH" means, at any time, cash at bank denominated in sterling and
credited to an account in the name of a Borrower with an Eligible Deposit
Bank and to which a Borrower is alone beneficially entitled and for so
long as (a) such cash is repayable on demand and (b) repayment of such
cash is not contingent on the prior discharge of any other indebtedness
of any Group member or of any other person whatsoever or on the
satisfaction of any other condition.
"CAPITAL EXPENDITURE" means any expenditure which would be treated as
capital expenditure in accordance with Approved Accounting Principles.
"CASH FLOW" means, in respect of any Relevant Period, EBIT for such
Relevant Period:
(a) adding back depreciation and the amount attributable to
amortisation of goodwill or any intangible assets during that
period, to the extent deducted in arriving at EBIT;
(b) minus any taxes paid in cash during such Relevant Period;
(c) minus all Capital Expenditure during such Relevant Period and for
this purpose to the extent that any Capital Expenditure is
financed by finance lease, hire purchase or similar arrangements
the amount included in Capital Expenditure shall be the amount
which would have been included had such Capital Expenditure not
been so financed but after including the principal amount
financed under such financing arrangements as a cash inflow;
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(d) plus any extraordinary items received in cash during such
Relevant Period;
(e) minus any extraordinary items paid in cash during such Relevant
Period;
(f) minus the amount of the increase or plus the amount of the
decrease (as the case may be) in Working Capital during such
Relevant Period;
(g) plus the amount of any dividends or other profit distributions
(net of tax) received in cash by any member of the Group during
such Relevant Period from companies which are not members of the
Group;
(h) minus the aggregate amount of Total Consideration of Permitted
Acquisitions and Permitted Equity Funded Acquisitions made during
such Relevant Period;
(i) plus the aggregate of the Available Cash and drawings under the
Term B Facility utilised to fund Permitted Acquisitions and
Permitted Equity Funded Acquisitions made during such Relevant
Period;
(j) after adding back or deducting, as the case may be, the amount of
any gain or any loss against book value arising on a disposal of
any asset (not being stock disposed of in the ordinary course of
trading) during such Relevant Period to the extent deducted or
added back in arriving at EBIT for that period;
(k) plus (to the extent not already included) the amount of any Net
Disposal Proceeds arising during such Relevant Period on the
disposal of any asset (not being stock disposed of in the
ordinary course of trading) save for any Net Disposal Proceeds
which are held in the Holding Account;
(l) plus (to the extent not already included) any amount of
additional available cash resulting from the use of any pension
surplus during such Relevant Period;
(m) minus, except to the extent deducted in calculating EBIT, the net
cost of management fees during such Relevant Period;
(n) minus payments on provisions or reserves not included in Working
Capital in respect of such Relevant Period;
(o) minus payments with respect to capitalised assets not included in
Capital Expenditure or Working Capital in respect of such
Relevant Period; and
(p) after adding back the aggregate amount of payments during such
Relevant Period made in respect of Earn Out obligations of the
Group entered into prior to the date of the Agreement PROVIDED
THAT the aggregate of all such adjustments made under this
sub-paragraph (p) since the date of this Agreement shall not
exceed the cash balances (excluding Available Cash) of the Group
at the date hereof.
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"CONSOLIDATED FIXED CHARGES" means, in respect of any Relevant Period,
the aggregate of:
(a) Net Cash Interest for that Relevant Period;
(b) all scheduled repayments of principal under the terms of any
Indebtedness for Borrowed Money (but excluding any voluntary or
mandatory prepayment of the Facilities) of any member of the
Group (excluding any Indebtedness for Borrowed Money between any
member of the Group and any other member of the Group) falling
due during that period:
(i) including, without limitation, all capital payments falling
due in respect of any Indebtedness for Borrowed Money
falling within paragraph (g) of the definition of that term;
and
(ii) excluding any repayment or prepayment of any overdraft or
revolving credit facility (including, without limitation,
the Revolving Advances) falling due during that period and
capable of being simultaneously redrawn under the terms of
the relevant facility;
"CONSOLIDATED NET WORTH" means at any time the aggregate of the amounts
paid up or credited as paid up on the issued share capital of the Parent
(other than any redeemable shares) and the aggregate amount of the
reserves of the Group including:
(a) any amount credited to the share premium account;
(b) any capital redemption reserve fund; and
(c) any balance standing to the credit or debit of the consolidated
profit and loss account reserve of the Group, adjusted for (i)
the effect of the historic goodwill arising on consolidation of
the (pounds sterling)50,701,000; (2) the elimination of the
amortisation charged in respect of purchased goodwill as per the
consolidated profit and loss account of the Group; and (3)
deducting the amortisation of purchased goodwill over a five (5)
year period,
but deducting:
(i) (to the extent included) any amounts arising from an upward
revaluation of assets made at any time after 30 September 1999;
and
(ii) (to the extent included) any dividend or distribution recommended
but not debited to the profit and loss account reserve or made by
any member of the Group to the extent payable to a person who is
not a member of the Group and such distribution is not provided
for in the most recent financial statements,
and so that no amount shall be included or excluded more than once.
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"CURRENT ASSETS" means the sum of inventory, trade receivables and other
receivables (including sundry debtors) falling due within 12 months,
prepaid accounts and other assets but excluding cash at bank and in hand.
"CURRENT LIABILITIES" means the sum of all liabilities falling due within
12 months (including trade creditors, accruals and provisions and
prepayments but excluding any Indebtedness for Borrowed Money falling due
within such period.
"DEBTOR DAYS" means, with respect to any Quarter Date, the aggregate of
all outstanding receivables (excluding VAT) (net of any provisions) on
such Quarter Date divided by Average Daily Sales.
"EBIT" means, in respect of any Relevant Period, the consolidated profit
of the Group for such period:
(a) before any deduction of corporation tax or other taxes on income
or gains for such Relevant Period;
(b) before any deduction of Interest Payable in respect of such
Relevant Period and before amortisation of Acquisition Costs, to
the extent amortised;
(c) after deducting (to the extent included) Interest Receivable in
respect of such Relevant Period;
(d) excluding extraordinary items relating to such Relevant Period;
(e) after deducting (to the extent otherwise included) the amount of
profit (or adding back the loss) for such Relevant Period of any
member of the Group which is attributable to any third party (not
being a member of the Group) which is a shareholder in such
member of the Group;
(f) after deducting (to the extent otherwise included) any gain over
book value arising in favour of a member of the Group on the
disposal of any asset (not being any disposals made in the
ordinary course of trading) during such Relevant Period and any
gain arising on any revaluation of any asset during such period;
(g) after adding back (to the extent otherwise deducted) any loss
against book value incurred by a member of the Group on the
disposal of any asset (not being any disposals made in the
ordinary course of trading) during such Relevant Period; and
(h) after deducting any depreciation on fixed assets relating to such
Relevant Period.
"EBITA" means, in respect of any Relevant Period, EBIT for such period
before deducting amortisation of any goodwill on any intangible assets
relating to such Relevant Period.
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"EBITDA" means, in respect of any Relevant Period, EBIT for such period
adding back depreciation and amortisation during that period, to the
extent deducted in calculating EBIT and taking into account any
applicable Agreed Pro Forma Adjustments.
"ELIGIBLE DEPOSIT BANKS" means any bank or financial institution with a
short term rating of at least A1 granted by Standard & Poor's Corporation
or P1 granted by Xxxxx'x Investors Services Inc..
"EXCESS CASH FLOW" means, in respect of any financial year of the Group,
Cash Flow for such financial year:
(a) less the aggregate of:
(i) Consolidated Fixed Charges of the Group; and
(ii) (9.375% multiplied by the Original Senior Subordinated Note
Amount) minus any cash interest paid under the Senior
Subordinated Notes,
for such financial year;
(b) less (to the extent included in calculating Cash Flow) the amount
prepaid during such financial year pursuant to the provisions of
Clause 9.1 (Mandatory Prepayment on Disposals);
(c) less an amount equal to the amount required to reduce drawings
under the Revolving Facility to zero as at the date of
calculation.
"FINANCIAL QUARTER" means the period commencing on the day after one
Quarter Date and ending on the next Quarter Date.
"INTEREST" means, in respect of any Relevant Period, amounts payable
pursuant to Clause 11 (Taxes) and interest and amounts in the nature of
interest paid or payable in respect of any Indebtedness for Borrowed
Money of any member of the Group excluding any interest paid or payable
on Indebtedness for Borrowed Money between any member of the Group and
any other member of the Group but including:
(a) the interest element of finance leases;
(b) discount and acceptance fees payable (or deducted) in respect of
any Indebtedness for Borrowed Money excluding any income or
expense received or incurred in connection with any sales through
factoring or leasing transactions but only to the extent that
such amounts have been taken into account in the cost of sales
for the purposes of calculating EBIT;
(c) the net amount (expressed as a positive or negative amount, as
appropriate) due to or from members of the Group pursuant to
interest rate hedging or similar agreements; and
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(d) commitment, utilisation and non-utilisation fees payable or
incurred in respect of Indebtedness for Borrowed Money.
"INTEREST PAYABLE" means, in respect of any Relevant Period, Interest
accrued (whether or not paid or capitalised) during that Relevant Period
as an obligation of any member of the Group during that period and
calculated on the basis that amortisation of Acquisition Costs, to the
extent amortised, will be excluded.
"INTEREST RECEIVABLE" means, in respect of any Relevant Period, the
amount of Interest (which for this purpose shall include all payments of
the type described in the definition of Interest above (except for
paragraph (c) thereof)) received by members of the Group (other than by
other members of the Group) during such period whether or not paid.
"MONITORED CAPITAL EXPENDITURE" means Capital Expenditure other than
Permitted Acquisitions.
"NET CASH INTEREST" means, in respect of any Relevant Period, Interest
Payable less Interest Receivable to the extent actually received in cash
during that period.
"NET DEBT SERVICE" means, in respect of any Relevant Period, the
aggregate of:
(a) Net Cash Interest; and
(b) the aggregate of scheduled payments of any Indebtedness for
Borrowed Money falling due.
"NET SENIOR CASH INTEREST" means, in respect of any Relevant Period,
Senior Interest Payable less Interest Receivable to the extent actually
received in cash during that period.
"NET SENIOR DEBT" means, at any time, all Indebtedness for Borrowed Money
of the Group at such time:
(a) less amounts outstanding under the Mezzanine Facility at such
time;
(b) less the aggregate amount of all cash balances (excluding the
Available Cash) and Cash Equivalent Investments;
(c) less any Indebtedness for Borrowed Money (not falling within (a)
above) which is subordinated pursuant to the Intercreditor
Arrangements or otherwise on terms acceptable to an Instructing
Group.
"QUARTER DATE" means each of 31 March, 30 June, 30 September and 31
December.
"RELEVANT PERIOD" means (notwithstanding that such period commenced prior
to the date hereof):
(a) each period of twelve months ending on the last day of the
Parent's financial year; and
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(b) each period of twelve months ending on the last day of each
Financial Quarter of the Parent's financial year,
PROVIDED THAT if any such period includes the date hereof, it shall be
deemed to commence on such date.
"SENIOR INTEREST" means, in respect of any Relevant Period, all interest
and amounts in the nature of interest paid or payable in respect of the
Facilities of any member of the Group including any commitment,
utilisation and non-utilisation fees payable or incurred in respect of
the Facilities.
"SENIOR INTEREST PAYABLE" means, in respect of any Relevant Period,
Senior Interest accrued (whether or not paid or capitalised) during that
Relevant Period as an obligation of any member of the Group during that
period.
"TOTAL DEBT" means, at any time, the aggregate amount of Indebtedness for
Borrowed Money (excluding any indebtedness incurred in relation to Senior
Subordinated Notes) of the Group at such time.
"TOTAL NET DEBT" means, in respect of any Relevant Period, Total Debt
less the aggregate amount of all cash balances (excluding the Available
Cash).
"WORKING CAPITAL" means, at any time, the Consolidated Net Assets of the
Group comprising stock and debtors (but excluding any cash) and deducting
trade creditors and other Current Liability at the last day of such
Relevant Period.
19.4 FINANCIAL TESTING
The financial covenants set out in Clause 19 (Financial Condition) shall
be tested by reference to each of the financial statements and/or each
Compliance Certificate delivered pursuant to Clause 17 (Financial
Information).
19.5 AUDITOR'S VERIFICATION
The Agent may, at any time if it has reasonable grounds for believing
that the figures prepared by the Parent are incorrect, inaccurate or
incomplete at the Parent's expense require the auditors of the Group or
the Group to verify the figures supplied by the Parent in connection with
the financial conditions set out in Clause 19.1 (Financial Covenants).
The Agent may, in accordance with this Clause 19.5, request verification
of any figure or calculation made in a Compliance Certificate and/or
delivered under Clause 18 (Other Information) and/or any figure contained
in the financial statements delivered under Clause 17 (Financial
Information) which is relevant to the calculation of the financial
conditions referred to above.
If such auditors fail to verify such figures to the reasonable
satisfaction of the Agent after being requested to do so, the Agent may
appoint an independent firm of accountants to carry out an appropriate
investigation and give a certificate in a form and content reasonably
satisfactory to the Agent certifying or verifying the relevant
- 59 -
figures and satisfaction of the above financial conditions shall be
determined be reference to the figures so verified or certified even if
the audited or management accounts for the same date or period have not
yet been published.
19.6 ACCOUNTING TERMS
All accounting expressions to the extent that not otherwise defined
herein shall be construed in accordance with UK GAAP.
20. COVENANTS
20.1 MAINTENANCE OF LEGAL VALIDITY AND LEGAL STATUS
Each Obligor shall do all such things as are necessary to maintain its
and its subsidiaries existence as a legal person and obtain, comply with
the terms of and do all that is necessary to maintain in full force and
effect all authorisations, approvals, licences, consents and exemptions
required in or by the laws of its jurisdiction of incorporation to enable
it lawfully to enter into and perform its obligations under the Finance
Documents to which it is expressed to be a party and to ensure the
legality, validity, enforceability (subject to the Legal Reservations) or
admissibility in evidence in its jurisdiction of incorporation of the
Finance Documents and, on request of the Agent, supply copies (certified
by an Authorised Signatory of the relevant Obligor as true, complete and
up to date) of any such authorisations, approvals, licences, consents and
exemptions.
20.2 INSURANCE
20.2.1 Each Obligor shall and shall procure that each Material
Subsidiary shall effect and maintain insurances on and in
relation to its business and assets with reputable underwriters
or insurance companies against such risks and to such extent as
is usual for prudent companies carrying on a business such as
that carried on by such Material Subsidiary (including, but not
limited to, loss of earnings, business interruption, directors
and officers liability cover).
20.2.2 Without prejudice to sub-clause 20.2.1, each Obligor shall, and
shall procure that each Material Subsidiary effects and maintains
insurances on and in relation to its business and assets:
(a) against such risks and at such levels as are recommended by
such Material Subsidiary's insurance advisers or such higher
levels as are normally maintained by persons carrying on the
same business as that carried on by such Group member; and
(b) in compliance with any relevant agreements which are binding
on it from time to time.
20.2.3 The Parent shall (if so requested in writing) supply the Agent
with copies of all such insurance policies or certificates of
insurance in respect thereof or (in the absence of the same) such
other evidence of the existence of such policies as may be
reasonably acceptable to the Agent and shall, in any event,
notify
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the Agent of any material changes to its insurance cover made
from time to time.
20.3 ENVIRONMENTAL MATTERS
20.3.1 Each Obligor shall and shall ensure that each member of the Group
shall comply in all material respects with all Environmental Law
and obtain and maintain any Environmental Permits and take all
reasonable steps in anticipation of known or expected future
changes to or obligations under the same, breach of which (or
failure to obtain, maintain or take which) could reasonably be
expected to have a Material Adverse Effect.
20.3.2 Each Obligor shall, and shall procure that each Group member
shall, inform the Agent in writing as soon as reasonably
practicable upon becoming aware of the same if any Environmental
Claim has been commenced or (to the best of it's knowledge and
belief) is threatened against any member of the Group in any case
where such claim would be reasonably likely to have a Material
Adverse Effect or of any facts or circumstances which will or are
reasonably likely to result in any Environmental Claim being
commenced or threatened against any member of the Group in any
case where such claim could reasonably be expected to have a
Material Adverse Effect.
20.4 NOTIFICATION OF EVENTS OF DEFAULT
Each Obligor shall and shall procure that each Group member shall, inform
the Agent of the occurrence of any Event of Default or Potential Event of
Default and, upon receipt of a written request to that effect from the
Agent (if the Agent has reasonable grounds for believing that there may
be an Event of Default or Potential Event of Default), confirm to the
Agent that, save as previously notified to the Agent or as notified in
such confirmation, no Event of Default or Potential Event of Default has
occurred.
20.5 CLAIMS PARI PASSU
Each Obligor shall ensure that at all times the claims of the Finance
Parties against it under the Finance Documents rank at least pari passu
with the claims of all its other unsecured and unsubordinated creditors
save those whose claims are preferred by any bankruptcy, insolvency,
liquidation or other similar laws of general application.
20.6 CONSENTS AND APPROVALS
Each Obligor shall, and shall procure that each member of the Group
shall, comply with all applicable laws, rules, regulations and orders and
obtain and maintain all governmental and regulatory consents, licences,
authorisations and approvals the failure to comply with which or the
failure to obtain and maintain which could be reasonably be expected to
have a Material Adverse Effect.
20.7 CONDUCT OF BUSINESS
Each Obligor shall, and shall procure that each Material Subsidiary
shall, ensure that it has the right and is duly qualified to conduct its
business as it is conducted from time to time in all applicable
jurisdictions and does all things necessary to obtain, preserve and
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keep in full force and effect all material rights including, without
limitation, all franchises, contracts, licences, IP Licences, consents
and other rights which are necessary for the conduct of its business.
20.8 TAX
Each Obligor shall, and shall procure that each Material Subsidiary
shall, duly and punctually pay and discharge (a) all taxes, assessments
and governmental charges imposed upon it or its assets within the time
period allowed therefor without imposing penalties and without resulting
in an Encumbrance with priority to any Bank or any security purported to
be granted by or created pursuant to the Security Documents (save to the
extent payment thereof is being contested in good faith by the relevant
Group member and adequate reserves are being maintained for those taxes
and where payment thereof can lawfully be withheld and would not result
in an Encumbrance with priority to the security created or evidenced by
the Security Documents) and (b) all lawful claims which, if unpaid, would
by law become Encumbrances upon its assets which are not Permitted
Encumbrances.
20.9 PRESERVATION OF ASSETS
Each Obligor shall, and shall procure that each Material Subsidiary
shall, maintain and preserve all of its assets that are necessary in the
conduct of its business as conducted at the date hereof in good working
order and condition, ordinary wear and tear excepted.
20.10 SECURITY
20.10.1 Each Obligor shall, and shall procure that each member of the
Group shall, at its own expense, take all such action as the
Agent or the Security Agent may require (acting reasonably) for
the purpose of perfecting or protecting the Agent's or Security
Agent's rights under and preserving the security interests
intended to be created or evidenced by any of the Finance
Documents and as the Agent or the Security Agent may require
following the making of any declaration pursuant to Clause 21.23
(Acceleration and Cancellation) or 21.24 (Advances Due on Demand)
for facilitating the realisation of any such security or any part
thereof.
20.10.2 Each Obligor shall, and shall procure that each member of the
Group shall, ensure that (save as specified in the Legal
Reservations) each Security Document to which it is a party
creates the security interest which that Security Document
purports to create or, if that Security Document purports to
evidence a security interest, accurately evidences a security
interest which has been validly created and that each security
interest ranks in priority as specified in the Security Document
creating or evidencing that interest.
20.11 PENSIONS
The Obligors shall, and shall procure that each Group member shall,
ensure that all pension schemes are administered and funded in accordance
with applicable law.
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20.12 ACCESS
While an Event of Default or Potential Event of Default (or the Agent
reasonably suspects an Event of Default) is continuing and is not
remedied or waived in respect of which information has been requested by
the Agent and not supplied or not adequately answered, the Parent shall,
ensure that any one or more representatives, agents and advisers of the
Agent will on reasonable notice be allowed to have access to the assets,
books, records and premises of each Group member and to inspect the same
during normal business hours (at the reasonable expense of the Parent).
20.13 INTELLECTUAL PROPERTY
Each Obligor shall, and shall procure that each Group member shall do all
acts as are reasonably practicable to maintain, protect and safeguard the
Intellectual Property necessary for the business of the relevant Group
member and not terminate or discontinue the use of any such Intellectual
Property save that licensing arrangements in relation to such
Intellectual Property may be entered into between members of the Group
provided that (1) such licensing arrangements do not allow any further
sub-licensing by the licensee and (2) such licensing arrangements would
not have a material adverse effect on the value of any of the
Intellectual Property the subject matter of such licensing arrangements
Provided that a failure to do so would cause a Material Adverse Effect.
20.14 BANK ACCOUNTS
Each Obligor shall ensure that all sums received by an Obligor which is
party to a Security Document providing security over a bank account which
security is ultimately assigned and/or pledged to the Security Agent are
paid into a bank account or accounts with such banks or financial
institutions previously approved in writing by the Agent and which are
subject (to the extent legally possible) to security in favour of the
Security Agent pursuant to the Security Documents.
20.15 BANK ACCOUNTS
The Parent shall, as soon as possible, but in any event, no later than
the day following three (3) months after the date hereof, ensure that in
relation to a Borrower, all sums received by it or by any Group Member
are paid into a bank account or accounts with a member of the syndicate
Banks hereunder and are subject to the security in favour of the Security
Agent pursuant to the Security Documents.
20.16 NEGATIVE PLEDGE
No Obligor shall, and each Obligor will procure that no member of the
Group shall, create or permit to subsist any Encumbrance over all or any
of its present or future revenues or assets other than a Permitted
Encumbrance or create any restriction or prohibition on Encumbrances over
all or any of its present or future revenues or assets.
20.17 LOANS AND GUARANTEES
No Obligor shall, and each Obligor will procure that no member of the
Group shall, make any loans, grant any credit or other financial
accommodation or give any guarantee (except as required by the Finance
Documents) to or for the benefit of any
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person or otherwise voluntarily assume any liability, whether actual or
contingent, in respect of any obligation of any other person except:
20.17.1 trade credit or indemnities or guarantees granted in the ordinary
course of trading and upon terms usual for such trade; or
20.17.2 Permitted Transactions.
20.18 FINANCIAL INDEBTEDNESS
No Obligor shall, and each Obligor will procure that no member of the
Group shall, incur, create or permit to subsist or have outstanding any
Financial Indebtedness or enter into any agreement or arrangement whereby
it is entitled to incur, create or permit to subsist any Financial
Indebtedness other than, in either case, Permitted Indebtedness.
20.19 DISPOSALS
No Obligor shall, and each Obligor shall procure that no member of the
Group shall make any disposal of, by one or more transactions or series
of transactions (whether related or not), the whole or any part of its
revenues or its assets or its business or undertakings other than
Permitted Disposals.
20.20 MERGERS
No Obligor shall, and each Obligor shall procure that no member of the
Group shall, without the prior consent of an Instructing Group, merge or
consolidate with any other person, enter into any demerger transaction or
participate in any other type of corporate reconstruction (other than a
corporate reconstruction which is effected by means of capitalisation of
any Intra-Group Loan permitted hereunder).
20.21 ACQUISITIONS
Save as permitted under the Senior Credit Agreement, no Obligor shall,
and each Obligor shall procure that no member of the Group shall (without
the prior consent of an Instructing Group):
20.21.1 purchase, subscribe for or otherwise acquire any shares (or other
securities or any interest therein) in, or incorporate, any other
company or agree to do any of the foregoing; or
20.21.2 purchase or otherwise acquire any assets (other than in the
ordinary course of business or pursuant to any Capital
Expenditure permitted under the terms of this Agreement) or
(without limitation to any of the foregoing) acquire any business
or interest therein or agree to do so; or
20.21.3 form, or enter into, any partnership, consortium, Joint Venture
or other like arrangement or agree to do so.
20.22 DIVIDENDS, DISTRIBUTIONS AND INTEREST
20.22.1 No Obligor shall, and each Obligor shall procure that no Group
member shall, pay, make or declare any dividend, return on
capital, repayment of capital contributions or other distribution
(whether in cash or in kind) or make any
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distribution of assets or other payment (including management
fees) whatsoever whether directly or indirectly save (i) in
relation to such payments made by an Obligor to the Parent to
fund (a) tax liabilities and (b) administration costs provided
the aggregate amount of the loans under paragraph (a)(v) of the
definition of Permitted Transactions and this paragraph (i) does
not exceed (pounds sterling)100,000 per annum and (2) for
Permitted Transactions.
20.22.2 No Obligor shall, and each Obligor shall procure that no Group
member shall, pay any interest or return on principal or
repayment of principal or other distribution (in cash or in kind)
to make any distribution of assets or other payment whatsoever in
respect of the Senior Subordinated Notes or any other loan notes
or loan capital whether directly or indirectly save for Permitted
Transactions and payments of interest in respect of the Senior
Subordinated Notes permitted under the Intercreditor
Arrangements.
20.22.3 No Obligor shall, and each Obligor shall procure that no Group
member shall, pay any fees or make any other payment whatsoever
whether directly or indirectly save each Obligor may pay
management fees for the two financial years after the date hereof
in aggregate up to an amount of (pounds sterling)500,000 in each
financial year (and thereafter if the proposed assets sales as
identified in the TW US Strategy Paper do not occur,
(pounds sterling)250,000 in aggregate in each financial year) in
management fees charged by TW US to the Group in relation to
compensation for providing management, personnel and facilities
to the Group.
PROVIDED THAT no such payments shall be made under this Clause 20.22
(Dividends, Distributions and Interest) if a Payment Blockage Event has
occurred and is continuing and the Agent (acting on the instructions of
an Instructing Group) has issued a Stop Notice (as such term is defined
in the Intercreditor Arrangements).
20.23 SHARE CAPITAL
No Obligor shall, and shall procure that no member of the Group shall,
issue or redeem or repurchase, purchase, defease or retire any shares or
grant any person the right (whether conditional or unconditional) to call
for the issue or allotment of any share of the Parent or any Group member
or any other equity investments, howsoever called, or alter any rights
attaching to its issued shares (including ordinary and preference shares)
other than:
20.23.1 in the case of the Original Borrower, ordinary shares to be
issued pursuant to the Warrant Documents or which are otherwise
issued to satisfy the obligations of the Parent under the Senior
Subordinated Notes and/or the obligations of the Original
Borrower under the Mirror Notes;
20.23.2 (i) any issue of shares by an Obligor (other than the by the
Original Borrower or the Parent) to another wholly-owned
member of the Group;
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(ii) the redemption, repurchase, defeasance or retirement by or
purchase by a Group member of shares or share capital owned
by the Original Borrower;
20.23.3 the granting of options to employees of any Group member to
acquire 10,010,021 shares and the issue of shares upon the
exercise of such options; and
20.23.4 under the Management Options.
20.24 AMENDMENTS
No Obligor shall, and shall procure that no Group member shall, amend,
vary, novate, supplement or terminate any of the Voting Trust Agreement,
the Mezzanine Credit Agreement, the constitutional documents or any other
document delivered to the Agent pursuant to Clauses 2.3 (Conditions
Precedent), 33.2 (Borrower Conditions Precedent) or 34.2 (Guarantor
Conditions Precedent) or waive any right thereunder other than any
amendment or variation which is of a minor or technical nature or which
could not reasonably be considered to be material to the interests of the
Finance Parties.
20.25 CHANGE OF BUSINESS
No Obligor shall, and shall procure that no Material Subsidiary shall,
without the prior consent of an Instructing Group, make any material
changes to the general nature of the business of the Group as carried on
at the date hereof, or carry on any other business which results in any
material change to the nature of such business.
20.26 FEES, COMMISSIONS AND INTEREST
No Obligor shall, and shall procure that no Group member shall, other
than as required or permitted hereunder or under the Intercreditor
Arrangements, pay any fees or commissions or interest or repayments of
intra-group indebtedness other than the arrangers fee of (pounds
sterling)555,000 payable by the Original Borrower to Triumph Corporate
Finance Group, Inc. on the date hereof.
20.27 ARM'S LENGTH BASIS
No Obligor shall, and shall procure that no Group member shall, enter
into any arrangement or contract with any of its affiliates or any Group
member save where:
20.27.1 both parties to the arrangement are Obligors; or
20.27.2 in any other case such arrangement or contract is entered into on
an arm's length basis and is fair and equitable to such Group
member; or
20.27.3 it is pursuant to any other transaction expressly permitted under
the terms of the Finance Documents.
For the purposes of this Clause 20.27 "AFFILIATE" of the specified person
shall mean any other person directly or indirectly controlling or
controlled by or under common control with such specified person or which
is a director, officer or partner (limited or general) of such specified
person; for the purposes of this definition "control", when used with
respect of any specified person, means the possession, direct or
indirect, of
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the power to vote five per cent. (5%) or more of the securities having
ordinary voting power for the election of directors or the power to
direct or cause the direction of the management and policies of such
person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
20.28 TREASURY TRANSACTIONS
No Obligor shall, and each Obligor shall procure that no Group member
shall, enter into any Treasury Transaction which is not a Permitted
Treasury Transaction.
20.29 SUBORDINATED DEBT
No Obligor shall, and each Obligor shall procure that no Group member
shall, unless permitted under the Intercreditor Arrangements or this
Agreement, pay, prepay or repay or defease, exchange or repurchase any
amount under (a) the Mezzanine Credit Agreement or (b) any Intra-Group
Loan subordinated under the Intercreditor Arrangements or (c) the Senior
Subordinated Notes or (d) the Mirror Notes.
20.30 JOINT VENTURES
No Obligor shall, and each Obligor shall procure that no Group member
shall, enter into or acquire or subscribe (or agree to enter into or
acquire or subscribe) for any shares, stocks, securities or other
interest in or transfer of any assets to or lend to or guarantee or give
security for the obligations of any Joint Ventures without prior
consultation with the Agent and provided that the aggregate liability and
total exposure (including, without limitation, the aggregate of any
investment or contribution for the Joint Venture and the amount of any
liability, actual or contingent, of any member of the Group with respect
to the obligations of such Joint Venture) of the Group to all such Joint
Ventures shall not exceed (pounds sterling)250,000 at any one time.
20.31 YEAR 2000
The Parent shall procure that all computer hardware and software and any
equipment operated by electronic means ("COMPUTER SYSTEMS") used by any
member of the Group are Year 2000 compliant (that is, in relation to any
such Computer Systems that any reference to or use of a date before, on
or after 31 December 1999 in the operation of such Computer Systems will
not have an adverse effect on the use of such Computer Systems) provided
that this provision will only apply if the failure in question could be
reasonably be expected to have a Material Adverse Effect.
20.32 HEDGING
The Parent shall, within thirty nine (39) months from the date hereof,
procure that the Borrower approved by the Agent shall enter into secured
hedging arrangements for a period of no less than three years ranking
pari passu with the claims of the Finance Parties under the Finance
Documents satisfactory to the Banks (acting reasonably) with a Bank or
Banks in order to fix or cap the total interest cost of the Obligors in
respect of at least 66% of any amounts Outstanding hereunder.
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20.33 THE PARENT
The Parent shall not carry on any business other than as holding company
of the Group and shall not own any assets other than its shareholding in
the Original Borrower and the Mirror Notes and shall not incur any
liabilities of any nature whatsoever save for (a) any Security
contemplated pursuant to the terms of this Agreement or the Mezzanine
Finance Documents; (b) its obligations under the Senior Subordinated
Notes; (c) professional fees and administration costs in the ordinary
course of business; (d) any liabilities under the Finance Documents and
Mezzanine Finance Documents and (e) any liabilities incurred pursuant to
Permitted Acquisitions.
20.34 THE ORIGINAL BORROWER
The Original Borrower shall not carry on any business other than as a
holding company of the Group and shall not own any assets other than its
shareholding in its subsidiaries and shall not incur any liabilities of
any nature whatsoever save for (a) any Security contemplated pursuant to
the terms of this Agreement or the Senior Finance Documents; (b) its
obligations under the Mirror Notes; (c) professional fees and
administration costs in the ordinary course of business; and (d) the
intra-group loans referred to in Clause (a)(iii) of the definition of
Permitted Transactions.
20.35 ACCEDING GUARANTORS
The Parent shall use all reasonable endeavours to ensure that each member
of the Group does all that is necessary (including, without limitation,
by re-registering public companies as private companies) in order to
follow the procedures set out in Sections 155-158 of the Companies Xxx
0000 (or its equivalent in any other jurisdiction) in order to ensure
that the it can become an Additional Guarantor.
20.36 MEDIGAS LIMITED
The Parent shall ensure that as soon as practicable after four (4) weeks
from the date hereof and no later than six (6) weeks from the date
hereof, Medigas Limited will accede as a Guarantor in accordance with
Clause 34 (Additional Guarantors) and enter into a Debenture.
21. EVENTS OF DEFAULT
Each of Clause 21.1 (Failure to Pay) to Clause 21.20 (Material Adverse
Change) describes circumstances which constitute an Event of Default for
the purposes of this Agreement.
21.1 FAILURE TO PAY
Any amount due from an Obligor or the Obligors under the Finance
Documents is not paid at the time, in the currency and in the manner
specified herein unless such failure to pay is caused by technical
difficulties with the banking system in relation to the transmission of
funds and payment is made within three Business Days of the due date.
21.2 MISREPRESENTATION
Any representation or statement made or deemed to be made by an Obligor
in any Finance Document or in any notice or other document, certificate
or statement delivered by it pursuant thereto or in connection therewith
is or proves to have been
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incorrect or misleading in any material respect when made or deemed to be
made and if the circumstances causing such misrepresentation are
reasonably capable of remedy, such Obligor shall have failed to remedy
such circumstances within 28 days of receipt by it of written notice from
the Agent requiring such circumstances to be remedied.
21.3 BREACH OF SPECIFIC COVENANTS
At any time any of the requirements of Clause 19.1 (Financial Covenants),
Clause 20.5 (Claims Pari Passu), Clause 20.15 (Negative Pledge), Clause
20.19 (Disposals), Clause 20.22 (Dividends, Distributions and Interest),
Clause 20.23 (Share Capital) or Clause 20.24 (Amendments) are not
satisfied.
21.4 BREACH OF OTHER OBLIGATIONS
An Obligor fails duly to perform or comply with any other obligation
expressed to be assumed by it in the Finance Documents and such failure,
if capable of remedy, is not remedied within 28 days after the earlier to
occur of the date the Agent has given notice thereof to the Parent or
such Obligor and the date the Obligor or the Parent has actual knowledge
and if in the opinion of the Agent, acting reasonably, the circumstances
causing such breach are reasonably capable of remedy, such Obligor shall
have failed to remedy such circumstances within 28 days of receipt by it
of written notice from the Agent requiring such circumstances to be
remedied.
21.5 CROSS DEFAULT
Any Financial Indebtedness of any Material Subsidiary is not paid when
due, any Financial Indebtedness of any Material Subsidiary is declared to
be or otherwise becomes due and payable prior to its specified maturity
by reason of a default (however described) (other than where the relevant
event of default is a breach of Clause 24.3 (Breach of Specific
Covenants) of the Senior Credit Agreement caused by an Obligor failing to
comply with any provisions of Clause 21 (Financial Covenants) of the
Senior Credit Agreement), any commitment for any Financial Indebtedness
of any Material Subsidiary is cancelled or suspended by a creditor of any
Material Subsidiary by reason of a default (however described) or any
creditor of any Material Subsidiary becomes entitled to declare or demand
any Financial Indebtedness of any Material Subsidiary due and payable
prior to its specified maturity by reason of a default (however
described), provided that it shall not constitute an Event of Default
under this Clause 21.5 (Cross Default) if the aggregate amount of all
such Financial Indebtedness is less than (pounds sterling)200,000.
21.6 INSOLVENCY AND RESCHEDULING
Any Material Subsidiary ceases or suspends generally payment of its debts
or publicly announces an intention to do so (or is deemed for the
purposes of any law applicable to it to be) or is unable to pay its debts
as they fall due or commences negotiations with or makes a proposal to
any one or more of its creditors with a view to the readjustment or
rescheduling of all or a substantial part of its indebtedness or makes a
general assignment for the benefit of or a composition with its creditors
or a moratorium is declared in respect of all or a substantial part of
the indebtedness of any Material Subsidiary.
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21.7 INSOLVENCY PROCEEDINGS
Any Material Subsidiary takes any corporate action or other steps are
taken or formal insolvency proceedings are started (whether by way of
voluntary arrangement, scheme of arrangement or otherwise) (save for any
pursuant to a solvent reorganisation previously approved in writing by an
Instructing Group) or for the appointment of a liquidator, receiver,
administrator, administrative receiver, conservator, custodian, trustee
or similar officer of it or of any or all of its revenues and assets (or
any event occurs or proceedings are taken with respect to any Group
member which has a similar or equivalent effect to any of the foregoing
in this Clause 21.7) PROVIDED THAT it shall not constitute an Event of
Default under this Clause 21.7 if a petition is presented in an
winding-up proceeding of a Material Subsidiary and such petition is
discharged within 14 days of being presented.
21.8 EXECUTION OR DISTRESS
Any execution or distress is levied against, or any encumbrancer(s) take
possession of, the whole or any part of, the property, undertaking or
assets of any Material Subsidiary or any event occurs which under the
laws of any jurisdiction has a similar or analogous effect in respect of
indebtedness exceeding (pounds sterling)200,000 (or its equivalent) in
aggregate at any time and which, in any case, is not stayed or discharged
within 21 days after such levy, taking of possession or effect and during
such 21 day period is contested in good faith by appropriate means
diligently pursued.
21.9 FAILURE TO COMPLY WITH FINAL JUDGMENT
Any Material Subsidiary fails to comply with or pay any sum due from it
or them under any final judgment or any final order made or given by any
court of competent jurisdiction when such sums exceed (pounds
sterling)200,000 (or its equivalent) in aggregate at any time.
21.10 GOVERNMENTAL INTERVENTION By or under the authority of any government:
21.10.1 the management of any Material Subsidiary is wholly or partially
displaced or the authority of any Material Subsidiary in the
conduct of its business is wholly or partially curtailed; or
21.10.2 all or a majority of the issued shares of any Material Subsidiary
or the whole or any material part of its revenues or assets is
seized, nationalised, expropriated or compulsorily acquired.
21.11 OWNERSHIP OF THE OBLIGORS
After the date hereof, any Obligor (other than the Parent) ceases to be a
wholly-owned subsidiary of the Parent, except where such disposal is
permitted hereunder and in the case of the Original Borrower except where
provided under the Warrant Document and in respect of the Management
Options.
21.12 THE GROUP'S BUSINESS
Except by reason of a Permitted Disposal, the Group as a whole ceases to
carry on the business it carries on at the date hereof or enters into any
unrelated business.
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21.13 REPUDIATION
(1) Any Finance Document or Acquisition Document or the Voting Trust
Agreement or the security intended to be constituted by or the
subordination effected under any of the Finance Documents is repudiated
by any Party (other than a Finance Party) or (2) any Party (other than a
Finance Party) does or causes to be done any act or thing reasonably
evidencing an intention to repudiate any Finance Document or any such
security or subordination effected under any of the Finance Documents or
(3) any Finance Document or Acquisition Document is not or ceases to be
in full force and effect for a continuous period of 28 days Provided that
any circumstances causing such Finance Document or Acquisition Document
to cease to be in full force and effect are capable of remedy, such Party
shall have failed to remedy such circumstances within 28 days of receipt
by it of written notice from the Agent requiring such circumstances to be
remedied or (4) the validity or applicability thereof to any sums due or
to become due thereunder is disaffirmed by or on behalf of any Obligor.
21.14 ILLEGALITY
21.14.1 At any time any Obligor no longer has the legal power to perform
its obligations under the Finance Documents to which it is a
party or to own its assets or to carry on its business or at any
time it is or becomes unlawful for an Obligor to perform or
comply with any or all of its obligations under any Finance
Document to which it is a party or any of the obligations of an
Obligor thereunder are not or cease to be legal, valid, binding
and enforceable (except as provided in the Legal Reservations)
and if capable of remedy such Obligor shall have failed to remedy
such circumstances with 14 days of receipt by it of written
notice from the Agent requiring such circumstances to be
remedied.
21.14.2 At any time it is or becomes unlawful for any Party to perform or
comply with any or all of its obligations under any Acquisition
Document or
21.14.3 At any time any of the obligations of any person party to any
Acquisition Document are not or cease to be legal, valid, binding
and enforceable, which in each case could be reasonably expected
to have a Material Adverse Effect.
21.15 AUDITOR'S QUALIFICATION
The auditors of the Parent or any Group member qualify their annual audit
report to the consolidated accounts of the Group or the unconsolidated
accounts of any Group member in a manner which is, in the reasonable
opinion of an Instructing Group, material in the context of the
Facilities.
21.16 ENVIRONMENTAL
Any Group member breaches any Environmental Law or any Environmental
Claim is made or threatened against any Group member which, in either
case, could reasonably be expected (taking into account the likelihood of
success of such proceedings) to have a Material Adverse Effect.
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21.17 LITIGATION
21.17.1 Any litigation, arbitration, administrative proceedings or
governmental or regulatory investigations, proceedings or
disputes are commenced or threatened against any Group member or
its respective assets or revenues (taking into account the
likelihood of success of such proceedings) which could reasonably
be expected to have a Material Adverse Effect; or
21.17.2 the filing by any person other than the Initial Investors or a
Finance Party, whether at law or in equity, of any suit or
complaint (or, in the case of derivative or other actions, on
behalf of the TW US and the Parent or their successors or assigns
by any representative, trustee, agent, court or administrative
agency, receiver or administrator preliminary proceedings seeking
permission or authority for the filing of any suit or complaint)
with any court of competent jurisdiction, or the commencement of
any other legal proceeding or administrative process seeking in
any manner whatsoever to (i) have the creation of the voting
trust pursuant to the Voting Trust Agreement or the transfer to
such voting trust of all the issued shares of the Parent and the
Original Borrower declared void or invalid or rescinded, (ii)
challenge the validity, enforceability or effectiveness of the
Voting Trust Agreement or the voting trust created hereby, or
(iii) direct the Trustee (as defined in the Voting Trust
Agreement) to vote or refrain from voting or to transfer or
refrain from transferring the issued shares of the Parent and the
Original Borrower held in the voting trust in any manner
inconsistent in any respect with Section 6 of the Voting Trust
Agreement including injunctive or similar equitable relief
seeking to prevent the taking of any action that requires the
approval of the shareholders of the Parent or the Original
Borrower pending resolution of any legal challenge involving the
voting share created by the Voting Trust Agreement, the Original
Borrower Constitutional documents or the rights of the Initial
Investors under the Securities Purchase Agreement or any
agreement or instruct contemplated thereby.
21.18 SUBORDINATED DEBT
An event of default (howsoever described) occurs under the Mezzanine
Credit Agreement and is continuing unremedied or unwaived.
21.19 INTERCREDITOR ARRANGEMENTS
Any party to the Intercreditor Arrangements (other than any Finance
Party, the Senior Agent or any Senior Banks) fails to comply with its
obligations under the Intercreditor Arrangements.
21.20 VOTING TRUST
21.20.1 Any party to the Voting Trust Agreement (other than any Finance
Party, the Senior Agent or any Senior Bank) fails to comply with
its obligations under the Voting Trust Agreement;
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21.20.2 at any time the Voting Trust Agreement is amended, varied,
novated, supplemented or terminated or any rights are waived (in
a manner which is prejudicial to the Banks) thereunder without
the consent of the Banks.
21.21 CONTROL OF PARENT
The Trustee for and on behalf of the beneficiaries named therein (as
defined in the Voting Trust Agreement) ceases to control the Parent.
21.22 MATERIAL ADVERSE CHANGE
Any event or circumstance occurs which could reasonably be expected to
have a Material Adverse Effect.
21.23 ACCELERATION AND CANCELLATION
Upon the occurrence of an Event of Default which is continuing and at any
time thereafter, the Agent may (and, if so instructed by an Instructing
Group, shall) by notice to the Parent:
21.23.1 declare all or any part of the Advances to be immediately due and
payable (whereupon the same shall become so payable together with
accrued interest thereon and any other sums then owed by the
Obligors under the Finance Documents) or declare all or any part
of the Advances to be due and payable on demand of the Agent;
and/or
21.23.2 declare that any unutilised portion of the Facilities shall be
cancelled, whereupon the same shall be cancelled and the
Available Commitment of each Bank shall be reduced to zero;
and/or
21.23.3 exercise or direct the Security Agent to exercise all rights and
remedies.
21.24 ADVANCES DUE ON DEMAND
If, pursuant to Clause 21.23 (Acceleration and Cancellation), the Agent
declares all or any part of the Advances to be due and payable on demand
of the Agent, then, and at any time thereafter, the Agent may (and, if so
instructed by an Instructing Group, shall) by notice to the Parent:
21.24.1 require repayment of all or such part of the Advances on such
date as it may specify in such notice (whereupon the same shall
become due and payable on the date specified together with
accrued interest thereon and any other sums then owed by the
Obligors under the Finance Documents) or withdraw its declaration
with effect from such date as it may specify; and/or
21.24.2 select as the duration of any Interest Period or Term which
begins whilst such declaration remains in effect a period of six
months or less; and/or
21.24.3 declare that the Security Documents (or any of them) shall have
become enforceable.
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22. GUARANTEE AND INDEMNITY
22.1 PARENT GUARANTEE AND INDEMNITY
The Parent irrevocably and unconditionally:
22.1.1 guarantees to each Finance Party the due and punctual observance
and performance of all the terms, conditions and covenants on the
part of each Obligor (other than the Parent) contained in any of
the Finance Documents and agrees to pay from time to time on
demand by the Agent any and every sum or sums of money which each
Obligor (other than the Parent) is at any time liable to pay to
any Finance Party under or pursuant to any of the Finance
Documents and which has become due and payable but has not been
paid at the time such demand is made; and
22.1.2 agrees as a primary obligation to indemnify each Finance Party
from time to time on demand by the Agent from and against any
loss incurred by any Finance Party as a result of any of the
obligations of each Obligor (other than the Parent) under or
pursuant to any of the Finance Documents being or becoming void,
voidable, unenforceable or ineffective as against such Obligor
for any reason whatsoever, whether or not known to any Finance
Party or any other person, the amount of such loss being the
amount which the person or persons suffering it would otherwise
have been entitled to recover from such Obligor.
22.2 GROUP GUARANTEE AND INDEMNITY
Each Guarantor other than the Parent irrevocably and unconditionally:
22.2.1 guarantees to each Finance Party the due and punctual observance
and performance of all the terms, conditions and covenants on the
part of each Obligor (other than itself) contained in any of the
Finance Documents and agrees to pay from time to time on demand
by the Agent any and every sum or sums of money which each
Obligor (other than itself) is at any time liable to pay to any
Finance Party under or pursuant to any of the Finance Documents
and which has become due and payable but has not been paid at the
time such demand is made; and
22.2.2 agrees as a primary obligation to indemnify each Finance Party
from time to time on demand by the Agent from and against any
loss incurred by any Finance Party as a result of any of the
obligations of each Obligor (other than itself) under or pursuant
to any of the Finance Documents being or becoming void, voidable,
unenforceable or ineffective as against such Obligor for any
reason whatsoever, whether or not known to any Finance Party or
any other person, the amount of such loss being the amount which
the person or persons suffering it would otherwise have been
entitled to recover from such Obligor.
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22.3 ADDITIONAL SECURITY
The obligations of each Guarantor herein contained shall be in addition
to and independent of every other security which any Finance Party may at
any time hold in respect of any of any Obligor's obligations under the
Finance Documents.
22.4 CONTINUING OBLIGATIONS
The obligations of each Guarantor herein contained shall constitute and
be continuing obligations notwithstanding any settlement of account or
other matter or thing whatsoever and shall not be considered satisfied by
any intermediate payment or satisfaction of all or any of the obligations
of the Obligors under the Finance Documents and shall continue in full
force and effect until final payment in full of all amounts owing by any
Obligor under the Finance Documents and total satisfaction of all the
Obligors' actual and contingent obligations thereunder.
22.5 OBLIGATIONS NOT DISCHARGED
Neither the obligations of each Guarantor herein contained nor the
rights, powers and remedies conferred in respect of each Guarantor upon
any Finance Party by any Finance Document or by law shall be discharged,
impaired or otherwise affected by:
22.5.1 any insolvency proceeding in respect of any Obligor or any other
person or any change in its status, function, control or
ownership;
22.5.2 any of the obligations of any Obligor or any other person under
any Finance Document or under any other security taken in respect
of any of its obligations under any Finance Document being or
becoming illegal, invalid, unenforceable or ineffective in any
respect;
22.5.3 time or other indulgence being granted or agreed to be granted to
any Obligor in respect of its obligations under any Finance
Document or under any such other security;
22.5.4 any amendment to, or any variation, waiver or release of, any
obligation of any Obligor under any Finance Document or under any
such other security;
22.5.5 any failure to take, or fully to take, any security contemplated
hereby or otherwise agreed to be taken in respect of any
Obligor's obligations under any Finance Document;
22.5.6 any failure to realise or fully to realise the value of, or any
release, discharge, exchange or substitution of, any security
taken in respect of any Obligor's obligations under any Finance
Document; or
22.5.7 any other act, event or omission which, but for this Clause 22.5
(Obligations not Discharged) might operate to discharge, impair
or otherwise affect any of the obligations of each Guarantor
contained in any Finance Document or any of the rights, powers or
remedies conferred upon any of the Finance Parties by any Finance
Document or by law.
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22.6 SETTLEMENT CONDITIONAL
Any settlement or discharge between an Obligor and any of the Finance
Parties shall be conditional upon no security or payment to any Finance
Party by an Obligor or any other person on behalf of an Obligor being
avoided or reduced by virtue of any laws relating to bankruptcy,
insolvency, liquidation or similar laws of general application and, if
any such security or payment is so avoided or reduced, each Finance Party
shall be entitled to recover the value or amount of such security or
payment from such Obligor subsequently as if such settlement or discharge
had not occurred.
22.7 EXERCISE OF RIGHTS
No Finance Party shall be obliged before exercising any of the rights,
powers or remedies conferred upon them in respect of any Guarantor by
this Agreement or by law:
22.7.1 to make any demand of any Obligor;
22.7.2 to take any action or obtain judgment in any court against any
Obligor;
22.7.3 to make or file any claim or proof in any insolvency proceedings
of any Obligor; or
22.7.4 to enforce or seek to enforce any other security taken in respect
of any of the obligations of any Obligor under any Finance
Document.
22.8 DEFERRAL OF GUARANTOR'S RIGHTS
Each of the Guarantors agrees that, so long as any amounts are or may be
owed by an Obligor under any Finance Document or an Obligor is under any
actual or contingent obligations under any Finance Document, it shall not
exercise any rights which it may at any time have by reason of
performance by it of its obligations under any Finance Document:
22.8.1 to be indemnified by an Obligor; and/or
22.8.2 to claim any contribution from any other guarantor of any
Obligor's obligations under any Finance Document; and/or
22.8.3 to take the benefit (in whole or in part and whether by way of
subrogation or otherwise) of any rights of the Finance Parties
under any Finance Document or of any other security taken
pursuant to, or in connection with, any Finance Document by all
or any of the Finance Parties.
22.9 SUSPENSE ACCOUNTS
All moneys received, recovered or realised by a Bank by virtue of Clause
22.1 (Parent Guarantee and Indemnity) or Clause 22.2 (Group Guarantee and
Indemnity) may, in that Bank's discretion, in order to preserve the
rights of the Bank to prove for the full amount of all its claim be
credited to a suspense or impersonal account and may be held in such
account for so long as such Bank thinks fit pending the application from
time to time (as such Bank may think fit) of such moneys in or towards
the payment
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and discharge of any amounts owing by an Obligor to such Bank under any
Finance Document.
22.10 AMENDMENTS BINDING
Without prejudice to the other provisions of Clause 22 (Guarantee and
Indemnity), each Guarantor hereby confirms that if the Parent and the
Finance Parties or any of them enter into any agreement or other
arrangement, including (without limitation) any amendment or supplement
to or restatement of this Agreement or the Finance Documents or any of
its or their provisions, howsoever fundamental, then the Parent's
execution of any such agreement or other arrangement, whether or not
expressly made or purportedly made on behalf of the Guarantors, shall
bind each of the Guarantors and the guarantee contained in Clause 22
(Guarantee and Indemnity) shall continue in full force and effect without
the need to obtain any confirmation or acknowledgement from the
Guarantors or any of them that their guarantee continues in full force
and effect and applies to the Guarantor's liabilities under the Finance
Documents as amended, supplemented or restated in accordance with the
agreement of the Parent.
23. COMMITMENT COMMISSION AND FEES
23.1 COMMITMENT COMMISSION
The Parent (on behalf of itself and the Borrowers) shall pay to the Agent
for account of each Bank a commitment commission on the amount of such
Bank's Available Commitment from day to day from the date hereof until
the end of the Availability Period, such commitment commission to be
calculated at the rate of 0.75 per cent. per annum and to be payable on
the last day of the Availability Period.
23.2 ARRANGEMENT FEE
The Parent (on behalf of itself and the Original Borrower) shall pay to
the Arranger the fees specified in the fee letter dated on or about the
date hereof from the Arranger to the Parent at the times, and in the
amounts, specified in such letter. The Parent acknowledges that it has
received a copy of and consents to the terms of such letter.
23.3 AGENCY FEE
The Parent (on behalf of itself and the Original Borrower) shall pay to
the Agent for its own account the agency fees specified in the agency fee
letter dated on or about the date hereof from the Agent to the Parent at
the times, and in the amounts, specified in such letter. The Parent
acknowledges that it has received a copy of and consents to the terms of
such letter.
23.4 UNDERWRITING FEE
The Parent (on behalf of itself and the Original Borrower) shall pay to
each Underwriter the fees specified in the fee letter dated on or about
the date hereof from the Underwriter to the Parent at the times, and in
the amounts, specified in such letter. The Parent acknowledges that it
has received a copy of and consents to the terms of such letter.
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24. COSTS AND EXPENSES
24.1 TRANSACTION EXPENSES
The Parent shall (on behalf of itself and the Borrower), from time to
time on demand of the Agent, reimburse each of the Agent, the Security
Agent and the Arranger and any of their affiliates (on a full indemnity
basis whether or not any of the Facilities are drawn down or utilised)
for all reasonable costs and expenses (including reasonable legal fees)
together with any VAT thereon incurred by it in connection with:
24.1.1 any due diligence carried out by it or on its behalf in
connection with the Finance Documents and the transactions
contemplated thereby;
24.1.2 the negotiation, preparation, execution and perfection of the
Finance Documents, any other document referred to in the Finance
Documents and the completion of the transactions therein
contemplated; and
24.1.3 the syndication of the Facilities.
24.2 PRESERVATION AND ENFORCEMENT OF RIGHTS
The Parent shall (on behalf of itself and the Borrower), from time to
time on demand of the Agent or Security Agent, reimburse the Finance
Parties for all costs and expenses (including legal fees) on a full
indemnity basis together with any VAT thereon incurred in or in
connection with the preservation and/or enforcement of any of the rights
of the Finance Parties under the Finance Documents and any document
referred to in the Finance Documents (including, without limitation, any
costs and expenses relating to any investigation as to whether or not an
Event of Default might have occurred or is likely to occur or any steps
necessary or desirable in connection with any proposal for remedying or
otherwise resolving an Event of Default or Potential Event of Default).
24.3 STAMP TAXES
The Parent shall (on behalf of itself and the Borrower) pay all stamp,
registration and other taxes to which the Finance Documents, any other
document referred to in the Finance Documents (other than any Transfer
Certificate) or any judgment given in connection therewith is or at any
time may be subject and shall (on behalf of itself and the Borrowers),
from time to time on demand of the Agent, indemnify the Finance Parties
against any liabilities, costs, claims and expenses resulting from any
failure to pay or any delay in paying any such tax.
24.4 AMENDMENT COSTS
If an Obligor requests any amendment, waiver or consent then the Parent
shall (on behalf of such Obligor), within five Business Days of demand by
the Agent, reimburse the Finance Parties for all costs and expenses
reasonably incurred (including legal fees) together with any VAT thereon
incurred by such person in responding to or complying with such request.
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24.5 BANKS' LIABILITIES FOR COSTS
If the Parent fails to perform any of its obligations under this Clause
24 (Costs and Expenses), each Bank shall, in its Proportion, indemnify
each of the Agent, the Security Agent and the Arranger against any loss
incurred by any of them (or their affiliates, in the case of costs and
expenses referred to in Clause 24.1 (Transaction Expenses)) as a result
of such failure.
25. DEFAULT INTEREST AND BREAK COSTS
25.1 DEFAULT INTEREST PERIODS
If any sum due and payable by an Obligor hereunder is not paid on the due
date therefor in accordance with Clause 28 (Payments) or if any sum due
and payable by an Obligor under any judgment of any court in connection
herewith is not paid on the date of such judgment, the period beginning
on such due date or, as the case may be, the date of such judgment and
ending on the date upon which the obligation of such Obligor to pay such
sum is discharged shall be divided into successive periods, each of which
(other than the first) shall start on the last day of the preceding such
period and the duration of each of which shall (except as otherwise
provided in this Clause 25 (Default Interest and Break Costs)) be
selected by the Agent.
25.2 DEFAULT INTEREST
An Unpaid Sum shall bear interest during each Interest Period in respect
thereof at the rate per annum which is two per cent. per annum above the
percentage rate which would apply to an Advance in the amount and
currency of such Unpaid Sum and for the same Interest Period, PROVIDED
THAT if such Unpaid Sum relates to an Advance which became due and
payable on a day other than the last day of an Interest Period or Term
relating thereto:
25.2.1 the first Interest Period applicable to such Unpaid Sum shall be
of a duration equal to the unexpired portion of the current
Interest Period or Term relating to that Advance; and
25.2.2 the percentage rate of interest applicable thereto from time to
time during such period shall be that which exceeds by one per
cent. the rate which would have been applicable to it had it not
so fallen due, save that the Margin shall be, or be deemed to be,
the highest rate specified in the definition thereof.
Where an Unpaid Sum does not relate to an Advance, interest shall
be calculated by reference to the Applicable B Margin.
25.3 PAYMENT OF DEFAULT INTEREST
Any interest which shall have accrued under Clause 25.2 (Default
Interest) in respect of an Unpaid Sum shall be due and payable and shall
be paid by the Obligor owing such Unpaid Sum on the last day of each
Interest Period in respect thereof or on such other dates as the Agent
may specify by notice to such Obligor.
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25.4 BREAK COSTS
If any Bank or the Agent on its behalf receives or recovers all or any
part of an Advance or Unpaid Sum otherwise than on the last day of an
Interest Period or Term relating thereto, the Agent shall calculate (a)
the additional interest which would have been payable on the amount so
received or recovered had it been received or recovered on the last day
of that Interest Period or Term and (b) the amount of interest which in
the opinion of the Agent (acting reasonably) would have been payable to
the Agent on the last day of that Interest Period or Term in respect of a
deposit in the currency of the amount so received or recovered equal to
the amount so received or recovered placed by it with a prime bank in
London for a period starting on the third Business Day following the date
of such receipt or recovery and ending on the last day of that Interest
Period or Term. If (a) exceeds (b), then the Parent shall pay to the
Agent on demand for account of such Bank an amount equal to such excess.
26. PARENT'S INDEMNITIES
26.1 PARENT'S INDEMNITY The Parent undertakes to indemnify:
26.1.1 each Finance Party against any cost, claim, loss, expense
(including legal fees) or liability together with any VAT
thereon, whether or not reasonably foreseeable, which it may
sustain or incur as a consequence of the occurrence of any Event
of Default or any default by any Obligor in the performance of
any of the obligations expressed to be assumed by it in any
Finance Document save to the extent that such cost, claim, loss,
expense or liability has arisen as a result of the negligence or
wilful default or wilful breach of obligation of such Finance
Party;
26.1.2 the Agent against any cost or loss it may suffer or incur as a
result of its entering into, or performing, any foreign exchange
contract for the purposes of Clause 28 (Payments);
26.1.3 each Bank against any cost or loss it may suffer under Clause
24.5 (Banks' Liabilities for Costs) or Clause 31.5
(Indemnification) save to the extent that such cost or loss has
arisen as a result of the negligence or wilful default or wilful
breach of obligation of such Bank;
26.1.4 each Bank against any cost or loss it may suffer or incur as a
result of its funding or making arrangements to fund its portion
of an Advance requested by any Borrower but not made by reason of
the operation of any one or more of the provisions hereof;
26.1.5 each Finance Party and in each case each of their affiliates and
each of their respective officers, directors, employees, agents,
advisors and representatives (each, an "INDEMNIFIED PARTY") from
and against any and all claims, damages, losses, liabilities,
costs and expenses (including, without limitation, fees and
disbursements of legal counsel), joint or several, that may be
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reasonably incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection
with or relating to any official investigation, litigation or
proceeding or the preparation of any defence with respect
thereto, arising out of or in connection with or relating to the
Finance Documents or the transactions contemplated hereby or
thereby or any use made or proposed to be made with the proceeds
of the Facilities, whether or not such official investigation,
litigation or proceeding is brought by a member of the Group, any
shareholder or creditors of any member of the Group, an
Indemnified Party or any other person, except to the extent that
such claim, damage, loss, liability, cost or expense is found in
a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party's
negligence or wilful misconduct or wilful breach of obligation;
and
26.1.6 each Bank against any cost or loss it may suffer or any reduction
in its return on capital that it would have been able to obtain
but for entering into or performing its obligations under this
Agreement as a result of any minimum reserve requirements imposed
on it by the European Central Bank in relation to an Advance or
any funding of an Advance.
26.2 CURRENCY INDEMNITY
If any sum (a "SUM") due from an Obligor under the Finance Documents or
any order, judgment, award or decision given or made in relation thereto
has to be converted from the currency (the "FIRST CURRENCY") in which
such Sum is payable into another currency (the "SECOND CURRENCY") for the
purpose of:
26.2.1 making or filing a claim or proof against such Obligor;
26.2.2 obtaining an order, judgment, award or decision in any court,
arbitral proceedings or other tribunal; or
26.2.3 enforcing any order, judgment, award or decision given or made in
relation thereto,
the Parent shall indemnify each person to whom such Sum is due from and
against any loss suffered or incurred as a result of any discrepancy
between (a) the rate of exchange used for such purpose to convert such
Sum from the First Currency into the Second Currency and (b) the rate or
rates of exchange available to such person at the time of receipt of such
Sum.
26.3 PARENT'S INDEMNITY FROM BORROWERS
If the Parent is required to make any payment under Clause 26.1 (Parent's
Indemnity), then each Borrower agrees to indemnify the Parent on demand
in respect of any such payment.
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27. CURRENCY OF ACCOUNT AND PAYMENT
27.1 CURRENCY OF ACCOUNT
Sterling is the currency of account and payment for each and every sum at
any time due from an Obligor hereunder, PROVIDED THAT:
27.1.1 each payment in respect of costs and expenses shall be made in
the currency in which the same were incurred; and
27.1.2 each payment pursuant to Clause 11.2 (Tax Indemnity) or Clause
13.1 (Increased Costs) shall be made in the currency specified by
the party claiming thereunder.
28. PAYMENTS
28.1 PAYMENTS TO THE AGENT
On each date on which this Agreement requires an amount to be paid by an
Obligor or a Bank, such Obligor or, as the case may be, such Bank shall
make the same available to the Agent for value on the due date at such
time and in such funds and to such account with such bank as the Agent
shall specify from time to time.
28.2 PAYMENTS BY THE AGENT
Save as otherwise provided herein, each payment received by the Agent for
the account of another person pursuant to Clause 28.1 (Payments to the
Agent) shall:
28.2.1 in the case of a payment received for the account of a Borrower,
be made available by the Agent to such Borrower by application:
(a) first, in or towards payment (on the date, and in the
currency and funds, of receipt) of any amount then due from
such Borrower hereunder to the person from whom the amount
was so received or in or towards the purchase of any amount
of any currency to be so applied; and
(b) secondly, in or towards payment (on the date, and in the
currency and funds, of receipt) to such account with such
bank in the principal financial centre of the country of the
currency of such payment as such Borrower (or the Parent)
shall have previously notified to the Agent for this
purpose; and
28.2.2 in the case of any other payment, be made available by the Agent
to the person for whose account such payment was received (in the
case of a Bank, for the account of the relevant Facility Office)
for value as soon as reasonably practicable after receipt by the
Agent by transfer to such account of such person with such bank
in the principal financial centre of the country of the currency
of such payment as such person shall have previously notified to
the Agent.
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28.3 NO SET-OFF
All payments required to be made by an Obligor under any Finance Document
shall be calculated without reference to any set-off or counterclaim and
shall be made free and clear of and without any deduction for or on
account of any set-off or counterclaim.
28.4 CLAWBACK
Where a sum is to be paid under a Finance Document to the Agent for
account of another person, the Agent shall not be obliged to make the
same available to that other person or to enter into or perform any
exchange contract in connection therewith until it has been able to
establish to its satisfaction that it has actually received such sum, but
if it does so and it proves to be the case that it had not actually
received such sum, then the person to whom such sum or the proceeds of
such exchange contract was so made available shall on request refund the
same to the Agent together with an amount sufficient to indemnify the
Agent against any cost or loss it may have suffered or incurred by reason
of its having paid out such sum or the proceeds of such exchange contract
prior to its having received such sum.
28.5 PARTIAL PAYMENTS
If and whenever a payment is made by an Obligor hereunder and the Agent
receives an amount less than the due amount of such payment the Agent may
apply the amount received towards the obligations of the Obligors under
this Agreement in the following order:
28.5.1 FIRST, in or towards payment of any unpaid costs, fees and
expenses of each of the Agent, the Security Agent and the
Arranger;
28.5.2 SECOND, in or towards payment pro rata of any accrued interest,
commitment commission, payable to any Bank hereunder due but
unpaid;
28.5.3 THIRD, in or towards payment pro rata of any Outstandings due but
unpaid; and
28.5.4 FOURTH, in or towards payment pro rata of any other sum due but
unpaid.
28.6 VARIATION OF PARTIAL PAYMENTS
The order of partial payments set out in Clause 28.5 (Partial Payments)
shall override any appropriation made by the Obligor to which the partial
payment relates but the order set out in sub-clauses 28.5.2, 28.5.3 and
28.5.4 of Clause 28.5 (Partial Payments) may be varied if agreed by all
the Banks.
29. SET-OFF
29.1 CONTRACTUAL SET-OFF
Following an Event of Default which is continuing each Obligor authorises
each Bank to apply any credit balance to which such Obligor is entitled
on any account of such Obligor with such Bank in satisfaction of any sum
due and payable from such Obligor to such Bank under any Finance Document
but unpaid. For this purpose, each Bank is
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authorised to purchase with the moneys standing to the credit of any such
account such other currencies as may be necessary to effect such
application.
29.2 SET-OFF NOT MANDATORY
No Bank shall be obliged to exercise any right given to it by Clause 29.1
(Contractual Set-off).
30. SHARING
30.1 PAYMENTS TO BANKS
If a Bank (a "RECOVERING BANK") applies any receipt or recovery from an
Obligor to a payment due under this Agreement and such amount is received
or recovered other than in accordance with Clause 28 (Payments), then
such Recovering Bank shall:
30.1.1 notify the Agent of such receipt or recovery;
30.1.2 at the request of the Agent, promptly pay to the Agent an amount
(the "SHARING PAYMENT") equal to such receipt or recovery less
any amount which the Agent determines may be retained by such
Recovering Bank as its share of any payment to be made in
accordance with Clause 28.5 (Partial Payments).
30.2 REDISTRIBUTION OF PAYMENTS
The Agent shall treat the Sharing Payment as if it had been paid by the
relevant Obligor and distribute it between the Finance Parties (other
than the Recovering Bank) in accordance with Clause 28.5 (Partial
Payments).
30.3 RECOVERING BANK'S RIGHTS
The Recovering Bank will be subrogated to the rights of the parties which
have shared in a redistribution pursuant to Clause 30.2 (Redistribution
of Payments) in respect of the Sharing Payment (and the relevant Obligor
shall be liable to the Recovering Bank in an amount equal to the Sharing
Payment).
30.4 REPAYABLE RECOVERIES
If any part of the Sharing Payment received or recovered by a Recovering
Bank becomes repayable and is repaid by such Recovering Bank, then:
30.4.1 each party which has received a share of such Sharing Payment
pursuant to Clause 30.2 (Redistribution of Payments) shall, upon
request of the Agent, pay to the Agent for account of such
Recovering Bank an amount equal to its share of such Sharing
Payment; and
30.4.2 such Recovering Bank's rights of subrogation in respect of any
reimbursement shall be cancelled and the relevant Obligor will be
liable to the reimbursing party for the amount so reimbursed.
30.5 EXCEPTION
This Clause 30 (Sharing) shall not apply if the Recovering Bank would
not, after making any payment pursuant hereto, have a valid and
enforceable claim against the relevant Obligor.
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30.6 RECOVERIES THROUGH LEGAL PROCEEDINGS
If any Bank intends to commence any action in any court or arbitral
proceedings it shall give prior notice to the Agent, the Security Agent
and the other Banks. If any Bank shall commence any action in any court
or arbitral proceedings to enforce its rights hereunder and, as a result
thereof or in connection therewith, receives any amount, then such Bank
shall not be required to share any portion of such amount with any Bank
which has the legal right to, but does not, join in such action or
commence and diligently prosecute a separate action to enforce its rights
in another court or arbitral proceedings.
31. THE AGENT, THE ARRANGER, THE UNDERWRITERS AND THE BANKS
31.1 APPOINTMENT OF THE AGENT
Each of the Arranger and the Banks hereby appoints the Agent to act as
its agent in connection with the Finance Documents and authorises the
Agent to exercise such rights, powers, authorities and discretions as are
specifically delegated to the Agent by the terms thereof together with
all such rights, powers, authorities and discretions as are reasonably
incidental thereto.
31.2 AGENT'S DISCRETIONS
The Agent may:
31.2.1 assume, unless it has, in its capacity as agent for the Banks,
received notice to the contrary from any other party hereto, that
(a) any representation made or deemed to be made by an Obligor in
connection with any Finance Document is true, (b) no Event of
Default or Potential Event of Default has occurred, (c) no
Obligor is in breach of or default under its obligations under
any Finance Document and (d) any right, power, authority or
discretion vested herein upon an Instructing Group, the Banks or
any other person or group of persons has not been exercised;
31.2.2 assume that each Facility Office of each Bank is that notified to
it by such Bank in writing prior to the date hereof (or, in the
case of a Transferee, at the end of the Transfer Certificate to
which it is a party as Transferee) until it has received from
such Bank a notice designating some other office of such Bank to
replace such Facility Office and act upon any such notice until
the same is superseded by a further such notice;
31.2.3 engage and pay for the advice or services of any lawyers,
accountants, surveyors or other experts whose advice or services
may to it seem necessary, expedient or desirable and rely upon
any advice so obtained;
31.2.4 rely as to any matters of fact which might reasonably be expected
to be within the knowledge of an Obligor upon a certificate
signed by or on behalf of such Obligor;
31.2.5 rely upon any communication or document believed by it to be
genuine;
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31.2.6 refrain from exercising any right, power or discretion vested in
it as agent under any Finance Document unless and until
instructed by an Instructing Group as to whether or not such
right, power or discretion is to be exercised and, if it is to be
exercised, as to the manner in which it should be exercised;
31.2.7 refrain from acting in accordance with any instructions of an
Instructing Group to begin any legal action or proceeding arising
out of or in connection with any Finance Document until it shall
have received such security as it may require (whether by way of
payment in advance or otherwise) for all costs, claims, losses,
expenses (including legal fees) and liabilities together with any
VAT thereon which it will or may expend or incur in complying
with such instructions; and
31.2.8 assume (unless it has specific notice to the contrary) that any
notice or request made by the Parent is made on behalf of all the
Obligors.
31.3 AGENT'S OBLIGATIONS
The Agent shall:
31.3.1 promptly inform each Bank of the contents of any notice or
document received by it in its capacity as Agent from an Obligor
under any Finance Document;
31.3.2 promptly notify each Bank of the occurrence of any Event of
Default or any default by an Obligor in the due performance of or
compliance with its obligations under any Finance Document of
which the Agent has notice from any other party hereto;
31.3.3 save as otherwise provided herein, act as agent under any Finance
Document in accordance with any instructions given to it by an
Instructing Group, which instructions shall be binding on the
Arranger and the Banks; and
31.3.4 if so instructed by an Instructing Group, refrain from exercising
any right, power or discretion vested in it as agent under any
Finance Document.
The Agent's duties under the Finance Documents are solely mechanical and
administrative in nature.
31.4 EXCLUDED OBLIGATIONS
Notwithstanding anything to the contrary expressed or implied herein,
neither the Agent, any Underwriter nor the Arranger shall:
31.4.1 be bound to enquire as to (a) whether or not any representation
made or deemed to be made by an Obligor in connection with any
Finance Document is true, (b) the occurrence or otherwise of any
Event of Default or Potential Event of Default, (c) the
performance by an Obligor of its obligations under any Finance
Document or (d) any breach of or default by an Obligor of or
under its obligations under any Finance Document;
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31.4.2 be bound to account to any Bank for any sum or the profit
element of any sum received by it for its own account;
31.4.3 be bound to disclose to any other person any information relating
to any member of the Group if (a) such person, on providing such
information, expressly stated to the Agent or, as the case may
be, the Arranger, that such information was confidential or (b)
such disclosure would or might in its opinion constitute a breach
of any law or be otherwise actionable at the suit of any person;
31.4.4 be under any obligations other than those for which express
provision is made in any Finance Document; or
31.4.5 be or be deemed to be a fiduciary for any other party to any
Finance Document.
31.5 INDEMNIFICATION
Each Bank shall, in its Proportion, from time to time on demand by the
Agent, indemnify the Agent against any and all costs, claims, losses,
expenses (including legal fees) and liabilities together with any VAT
thereon which the Agent may incur, otherwise than by reason of its own
gross negligence or wilful misconduct, in acting in its capacity as agent
under any Finance Document (other than any which have been reimbursed by
the Parent pursuant to Clause 26.1 (Parent's Indemnity)).
31.6 EXCLUSION OF LIABILITIES
Except in the case of negligence or wilful default, none of the Agent,
the Underwriters and the Arranger accepts any responsibility:
31.6.1 for the adequacy, accuracy and/or completeness of the Information
Memorandum or any other information supplied by the Agent or the
Arranger, by an Obligor or by any other person in connection with
any Finance Document or any other agreement, arrangement or
document entered into, made or executed in anticipation of,
pursuant to or in connection with any Finance Document;
31.6.2 for the legality, validity, effectiveness, adequacy or
enforceability of any Finance Document or any other agreement,
arrangement or document entered into, made or executed in
anticipation of, pursuant to or in connection with any Finance
Document; or
31.6.3 for the exercise of, or the failure to exercise, any judgement,
discretion or power given to any of them by or in connection with
any Finance Document or any other agreement, arrangement or
document entered into, made or executed in anticipation of,
pursuant to or in connection with any Finance Document.
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Accordingly, none of the Agent, the Underwriters and the Arranger shall
be under any liability (whether in negligence or otherwise) in respect of
such matters, save in the case of negligence or wilful misconduct.
31.7 NO ACTIONS
Each of the Banks agree that it will not assert or seek to assert against
any director, officer or employee of the Agent, the Underwriters or the
Arranger any claim it might have against any of them in respect of the
matters referred to in Clause 31.6 (Exclusion of Liabilities).
31.8 BUSINESS WITH THE GROUP
The Agent and the Arranger may accept deposits from, lend money to and
generally engage in any kind of banking or other business with any member
of the Group.
31.9 RESIGNATION
The Agent, the Underwriters may resign its appointment hereunder at any
time without assigning any reason therefor by giving not less than thirty
days' prior notice to that effect to each of the other parties hereto,
provided that no such resignation shall be effective until a successor
for the Agent is appointed in accordance with the succeeding provisions
of this Clause 31 (The Agent, the Arrangers, the Underwriters and the
Banks).
31.10 SUCCESSOR AGENT
If the Agent gives notice of its resignation pursuant to Clause 31.9
(Resignation), then any reputable and experienced bank or other financial
institution in the United Kingdom may be appointed as a successor to the
Agent by an Instructing Group (who shall consult with the Parent) during
the period of such notice but, if no such successor is so appointed, the
Agent may appoint such a successor itself.
31.11 RIGHTS AND OBLIGATIONS
If a successor to the Agent is appointed under the provisions of Clause
31.10 (Successor Agent), then:
31.11.1 the retiring Agent shall be discharged from any further
obligation under any Finance Document but shall remain entitled
to the benefit of the provisions of this Clause 31 (The Agent,
the Arranger, the Underwriters and the Banks); and
31.11.2 its successor and each of the other parties to any Finance
Document shall have the same rights and obligations amongst
themselves as they would have had if such successor had been a
party to the Finance Documents.
31.12 OWN RESPONSIBILITY
It is understood and agreed by each Bank that at all times it has itself
been, and will continue to be, solely responsible for making its own
independent appraisal of and investigation into all risks arising under
or in connection with the Finance Documents including, but not limited
to:
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31.12.1 the financial condition, creditworthiness, condition, affairs,
status and nature of each member of the Group;
31.12.2 the legality, validity, effectiveness, adequacy and
enforceability of any Finance Documents and any other agreement,
arrangement or document entered into, made or executed in
anticipation of, pursuant to or in connection with any Finance
Document;
31.12.3 whether such Bank has recourse, and the nature and extent of that
recourse, against an Obligor or any other person or any of their
respective assets under or in connection with any Finance
Document, the transactions therein contemplated or any other
agreement, arrangement or document entered into, made or executed
in anticipation of, pursuant to or in connection with any Finance
Document; and
31.12.4 the adequacy, accuracy and/or completeness of the Information
Memorandum and any other information provided by the Agent, an
Underwriter or the Arranger, an Obligor, or by any other person
in connection with any Finance Document, the transactions
contemplated therein or any other agreement, arrangement or
document entered into, made or executed in anticipation of,
pursuant to or in connection with any Finance Document.
Accordingly, each Bank acknowledges to the Agent, the Underwriters and
the Arranger that it has not relied on and will not hereafter rely on the
Agent, the Underwriters and the Arranger or any of them in respect of any
of these matters.
31.13 AGENCY DIVISION SEPARATE
In acting as agent under the Finance Documents for the Banks, the Agent
shall be regarded as acting through its agency division which shall be
treated as a separate entity from any other of its divisions or
departments and, notwithstanding the foregoing provisions of this Clause
31 (The Agent, the Arranger, the Underwriters and the Banks), any
information received by some other division or department of the Agent
may be treated as confidential and shall not be regarded as having been
given to the Agent's agency division.
31.14 RELIANCE AND ENGAGEMENT LETTERS
Each Finance Party confirms each of the Arranger and the Agent has
authority to accept on its behalf the terms of any Reliance Letter or
engagement letters relating to the Reports or any reports or letters
provided by accountants in connection with the Finance Documents or the
transactions contemplated therein (including any net asset letter in
connection with financial assistance procedures) and to bind it in
respect of such Reports, reports or letters and to sign such letters on
its behalf and further confirms that it accepts the terms and
qualifications set out in such letters.
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32. ASSIGNMENTS AND TRANSFERS
32.1 BINDING AGREEMENT
This Agreement shall be binding upon and enure to the benefit of each
party hereto and its or any subsequent successors and Transferees.
32.2 NO ASSIGNMENTS AND TRANSFERS BY THE OBLIGORS
No Obligor shall be entitled to assign or transfer all or any of its
rights, benefits and obligations under the Finance Documents.
32.3 ASSIGNMENTS AND TRANSFERS BY BANKS
Any Bank may, at any time, assign all or any of its rights and benefits
under the Finance Documents or transfer in accordance with Clause 32.5
(Transfers by Banks) all or any of its rights, benefits and obligations
under the Finance Documents to a bank or financial institution, PROVIDED
THAT no such assignment or transfer may be made without prior
consultation with the Parent, except in the case of any such assignment
or transfer:
32.3.1 to any subsidiary or holding company, or to any subsidiary of any
holding company, of such Bank; or
32.3.2 to any other Bank or any subsidiary or holding company, or to any
subsidiary of any holding company, of any other Bank; or
32.3.3 when an Event of Default has occurred which is continuing.
Any such assignment, transfer or novation of a Bank's Commitment may be
made in respect of an amount of not less than (pounds sterling)1,000,000.
32.4 ASSIGNMENTS BY BANKS
If any Bank assigns all or any of its rights and benefits under the
Finance Documents in accordance with Clause 32.3 (Assignments and
Transfers by Banks), then, unless and until the assignee has delivered a
notice to the Agent confirming in favour of the Agent, the Arranger, the
Security Agent, the other Banks that it shall be under the same
obligations towards each of them as it would have been under if it had
been an original party to the Finance Documents as a Bank (whereupon such
assignee shall become a party to the Finance Documents as a "Bank"), the
Agent, the Arranger, the Security Agent, the other Banks shall not be
obliged to recognise such assignee as having the rights against each of
them which it would have had if it had been such a party to the Finance
Documents.
32.5 TRANSFERS BY BANKS
If any Bank wishes to transfer all or any of its rights, benefits and/or
obligations under the Finance Documents as contemplated in Clause 32.3
(Assignments and Transfers by Banks), then such transfer may be effected
by the delivery to the Agent of a duly completed Transfer Certificate
executed by such Bank and the relevant Transferee in which event, on the
later of the Transfer Date specified in such Transfer Certificate and the
fifth Business Day after (or such earlier Business Day endorsed by the
Agent
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on such Transfer Certificate falling on or after) the date of delivery of
such Transfer Certificate to the Agent:
32.5.1 to the extent that in such Transfer Certificate the Bank party
thereto seeks to transfer its rights, benefits and obligations
under the Finance Documents, each of the Obligors and such Bank
shall be released from further obligations towards one another
under the Finance Documents and their respective rights against
one another shall be cancelled (such rights and obligations being
referred to in this Clause 32.5 (Transfers by Banks) as
"DISCHARGED RIGHTS AND OBLIGATIONS");
32.5.2 each of the Obligors and the Transferee party thereto shall
assume obligations towards one another and/or acquire rights
against one another which differ from such discharged rights and
obligations only insofar as each such Obligor and such Transferee
have assumed and/or acquired the same in place of each such
Obligor and such Bank;
32.5.3 the Agent, the Security Agent, the Underwriters, the Arranger,
such Transferee, the other Banks shall acquire the same rights
and benefits and assume the same obligations between themselves
as they would have acquired and assumed had such Transferee been
an original party to the Finance Documents as a Bank with the
rights, benefits and/or obligations acquired or assumed by it as
a result of such transfer and to that extent the Agent, the
Security Agent, the Underwriters, the Arranger and the relevant
Bank shall each be released from further obligations to each
other under the Finance Documents; and
32.5.4 such Transferee shall become a party hereto as a "Bank".
32.6 ASSIGNMENT AND TRANSFER FEES
On the date upon which an assignment takes effect pursuant to Clause 32.4
(Assignments by Banks) or a transfer takes effect pursuant to Clause 32.5
(Transfers by Banks) the relevant assignee or Transferee shall pay to the
Agent for its own account a fee of (pounds sterling)1,000.
32.7 DISCLOSURE OF INFORMATION Any Bank may disclose to any person:
32.7.1 to (or through) whom such Bank assigns or transfers (or may
potentially assign or transfer) all or any of its rights,
benefits and obligations under any Finance Document;
32.7.2 with (or through) whom such Bank enters into (or may potentially
enter into) any sub-participation in relation to, or any other
transaction under which payments are to be made by reference to,
any Finance Document or any Obligor; or
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32.7.3 to whom information may be required to be disclosed by any
applicable law or any regulatory authority,
such information about any Obligor or the Group and any Finance Document
as such Bank shall consider appropriate PROVIDED THAT, in relation to a
disclosure under sub-clauses 32.7.1 and 32.7.2, the person to whom such
information is to be given has entered into a Confidentiality
Undertaking.
32.8 LIMITATION OF SPECIFIED INDEMNITIES
If, at any time, any Bank assigns or transfers any of its rights,
benefits and obligations hereunder or transfers a Facility Office and by
reasons of circumstances either in effect at the time of such assignment
or transfer or which at such time are known to become effective at a
later date there would, but for this Clause 32.8 (Limitation of Specified
Indemnities), arise an obligation on the part of an Obligor under Clause
11 (Taxes) or Clause 13.1 (Increased Costs) to pay to such assignee or
Transferee any amount in excess of the amount it would have then been
obliged to pay but for such assignment or transfer, then such Obligor
shall not be obliged to pay the amount of such excess PROVIDED THAT this
Clause 32.8 (Limitation of Specified Indemnities) shall not apply to any
assignment or transfer made pursuant to Clause 15 (Mitigation) or to any
assignment or transfer made in each case with the Parent's prior consent
or to any assignment or transfer following an Event of Default which is
continuing.
32.9 TRANSFERS OF PART
Any transfer pursuant to Clause 32.5 (Transfers by Banks) of part (but
not the whole) of a Bank's Commitment shall be in a minimum amount of
(pounds sterling)500,000 and shall be such that the amount of the
transferring Bank's Commitment shall not be reduced to less than
(pounds sterling)500,000.
32.10 INTERCREDITOR ARRANGEMENTS AND SECURITY
32.10.1 Each assignee or Transferee from a Bank shall enter into a deed
of accession in the form set out in the Intercreditor
Arrangements.
32.10.2 Both the transferor or assignor Bank and the relevant Transferee
or assignee shall take all steps necessary to ensure the transfer
of the benefit of any security relating to the transfer or
assignment and shall share (in a proportion to be agreed) any
costs attributable to the transfer of such security.
33. ADDITIONAL BORROWERS
33.1 REQUEST FOR ADDITIONAL BORROWER
The Parent may request that any of its wholly-owned subsidiaries become
an Additional Borrower by delivering to the Agent a Borrower Accession
Memorandum and (to the extent legally possible) a Guarantor Accession
Memorandum duly executed by the Parent and such subsidiary, together with
the documents and other evidence listed in Schedule 8 (Additional
Conditions Precedent) in relation to such subsidiary. Such Additional
Borrower will provide to the extent legally possible the Security
reasonably requested by the Agent which Security shall be given in
accordance with Clause 20.10 (Security).
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33.2 BORROWER CONDITIONS PRECEDENT
A company, in respect of which the Parent has delivered a Borrower
Accession Memorandum to the Agent, shall become an Additional Borrower
and assume all the rights, benefits and obligations of a Borrower as if
it had been an Original Borrower on the date on which the Agent notifies
the Parent that:
33.2.1 an Instructing Group accepts the Parent's request in respect of
such subsidiary and confirms that such subsidiary is suitable
from a withholding tax position; and
33.2.2 the Agent has received, in form and substance satisfactory to it,
all documents and other evidence listed in Schedule 8 (Additional
Conditions Precedent) in relation to such subsidiary,
unless on such date an Event of Default or Potential Event of Default is
continuing or would occur as a result of such subsidiary becoming an
Additional Borrower.
33.3 RESIGNATION OF A BORROWER
If at any time a Borrower (other than the Parent) is under no actual or
contingent obligation under or pursuant to any Finance Document and such
resignation would not affect the legality, validity or enforceability of
any security contemplated by the Security Documents in respect of such
Borrower or its assets, the Parent may request that such Borrower shall
cease to be a Borrower by delivering to the Agent a Resignation Notice.
Such Resignation Notice shall be accepted by the Agent on the date on
which it notifies the Parent that it is satisfied that such Borrower is
under no actual or contingent obligation under or pursuant to any Finance
Document and such Borrower shall immediately cease to be a Borrower and
shall have no further rights, benefits or obligations hereunder save for
those which arose prior to such date.
34. ADDITIONAL GUARANTORS
34.1 OBLIGATION FOR ADDITIONAL GUARANTOR
The Parent shall ensure that any of its subsidiaries (except Dormant
Subsidiaries) to the extent legally possible become an Additional
Guarantor by delivering to the Agent a Guarantor Accession Memorandum
duly executed by the Parent and such subsidiary, together with the
documents and other evidence listed in Schedule 8 (Additional Conditions
Precedent) in relation to such subsidiary promptly following the
acquisition or creation of such subsidiary by any member of the Group.
Such Guarantor will provide to the extent legally possible the Security
reasonably requested by the Agent which Security shall be given in
accordance with Clause 20.10 (Security).
34.2 GUARANTOR CONDITIONS PRECEDENT
A company, in respect of which the Parent has delivered a Guarantor
Accession Memorandum to the Agent, shall became an Additional Guarantor
and assume all the rights, benefits and obligations of a Guarantor which
is not a Guarantor referred to in Clause 22.1 (Parent Guarantee and
Indemnity) or 22.2 (Group Guarantee and Indemnity) as if it had been an
original party hereto as a Guarantor but with the exceptions (if any)
stipulated in the Guarantor Accession Memorandum on the date on
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which the Agent receives, in form and substance satisfactory to it, all
the documents and other evidence listed in Schedule 8 (Additional
Conditions Precedent). The Agent shall notify the Parent when requested
to do so whether it has received all such documents in form and substance
satisfactory to it.
35. CALCULATIONS AND EVIDENCE OF DEBT
35.1 BASIS OF ACCRUAL
Interest and commitment commission shall accrue from day to day and shall
be calculated on the basis of a year of 365 days and the actual number of
days elapsed.
35.2 QUOTATIONS
If on any occasion a Reference Bank or Bank fails to supply the Agent
with a quotation required of it under the foregoing provisions of this
Agreement, the rate for which such quotation was required shall be
determined from those quotations which are supplied to the Agent,
provided that, in relation to determining LIBOR, this Clause 35.2
(Quotations) shall not apply if only one Reference Bank supplies a
quotation.
35.3 EVIDENCE OF DEBT
Each Bank shall maintain in accordance with its usual practice accounts
evidencing the amounts from time to time lent by and owing to it
hereunder.
35.4 CONTROL ACCOUNTS
The Agent shall maintain on its books a control account or accounts in
which shall be recorded:
35.4.1 the amount and the Sterling Amount of any Advance or any Unpaid
Sum and each Bank's share therein;
35.4.2 the amount of all principal, interest and other sums due or to
become due from an Obligor and each Bank's share therein; and
35.4.3 the amount of any sum received or recovered by the Agent
hereunder and each Bank's share therein.
35.5 PRIMA FACIE EVIDENCE
In any legal action or proceeding arising out of or in connection with
this Agreement, the entries made in the accounts maintained pursuant to
Clause 35.3 (Evidence of Debt) and Clause 35.4 (Control Accounts) shall,
in the absence of manifest error, be prima facie evidence of the
existence and amounts of the specified obligations of the Obligors.
35.6 CERTIFICATES OF BANKS
A certificate of a Bank as to:
35.6.1 the amount by which a sum payable to it hereunder is to be
increased under Clause 11.1 (Tax Gross-up);
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35.6.2 the amount for the time being required to indemnify it against
any such cost, payment or liability as is mentioned in Clause
11.2 (Tax Indemnity) or Clause 13.1 (Increased Costs); or
35.6.3 the amount of any credit, relief, remission or repayment as is
mentioned in Clause 12.3 (Tax Credit Payment) or Clause 12.4 (Tax
Credit Clawback)
shall, in the absence of manifest error, be prima facie evidence of the
existence and amounts of the specified obligations of the Obligors.
35.7 AGENT'S CERTIFICATES
A certificate of the Agent as to the amount at any time due from a
Borrower or the Parent hereunder or the amount which, but for any of the
obligations of such Borrower or the Parent hereunder being or becoming
void, voidable, unenforceable or ineffective, at any time would have been
due from such Borrower hereunder shall, in the absence of manifest error,
be conclusive for the purposes of Clause 22 (Guarantee and Indemnity).
36. REMEDIES AND WAIVERS, PARTIAL INVALIDITY
36.1 REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of any
party, any right or remedy under any Finance Document shall operate as a
waiver thereof, nor shall any single or partial exercise of any right or
remedy prevent any further or other exercise thereof or the exercise of
any other right or remedy. The rights and remedies provided herein and in
the Finance Documents are cumulative and not exclusive of any rights or
remedies provided by law.
36.2 PARTIAL INVALIDITY
If, at any time, any provision of the Finance Documents is or becomes
illegal, invalid or unenforceable in any respect under the law of any
jurisdiction, neither the legality, validity or enforceability of the
remaining provisions thereof nor the legality, validity or enforceability
of such provision under the law of any other jurisdiction shall in any
way be affected or impaired thereby.
37. NOTICES
37.1 COMMUNICATIONS IN WRITING
Each communication to be made under the Finance Documents shall be made
in writing and, unless otherwise stated, shall be made by fax or letter.
37.2 ADDRESSES
Any communication or document to be made or delivered pursuant to the
Finance Documents shall (unless the recipient of such communication or
document has, by fifteen days' written notice to the Agent, specified
another address or fax number) be made or delivered to the address or fax
number:
37.2.1 in the case of the Original Obligors, the Security Agent, the
Arranger and the Agent, identified with its name below;
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37.2.2 in the case of each Bank, notified in writing to the Agent prior
to the date hereof (or, in the case of a Transferee, at the end
of the Transfer Certificate to which it is a party as
Transferee); and
37.2.3 in the case of each Additional Obligor, in the relevant Accession
Memorandum
PROVIDED THAT not more than one address may be specified by each party
pursuant to this Clause 37.2 (Addresses) at any time. Any Bank with more
than one Facility Office shall specify its main address and fax number
for the purpose of notices.
37.3 DELIVERY
Any communication or document to be made or delivered by one person to
another pursuant to the Finance Documents shall:
37.3.1 if by way of fax, be deemed to have been received when
transmission has been completed (and, if such date is not a
Business Day, shall be deemed to have been received on the next
Business Day); and
37.3.2 if by way of letter, deemed to have been delivered when left at
that address or, as the case may be, ten days after being
deposited in the post postage prepaid in an envelope addressed to
it at that address,
PROVIDED THAT any communication or document to be made or delivered to
the Agent or Security Agent shall be effective only when received by its
agency division or, as the case may be, trustee division and then only if
the same is expressly marked for the attention of the department or
officer identified with the Agent's or, as the case may be, Security
Agent's signature below (or such other department or officer as the Agent
or, as the case may be, the Security Agent shall from time to time
specify for this purpose).
37.4 ENGLISH LANGUAGE
Each communication and document made or delivered by one party to another
pursuant to the Finance Documents shall be in the English language or
accompanied by a translation thereof into English certified (by an
officer of the person making or delivering the same) as being a true and
accurate translation thereof.
37.5 NOTIFICATION OF CHANGES
Promptly upon receipt of notification of a change of address or fax
number pursuant to Clause 37.3 (Delivery) the Agent shall notify the
other parties hereto of such change.
38. COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument.
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39. AMENDMENTS
39.1 AMENDMENTS
Subject to Clause 39.2 (Amendments requiring the Consent of all the
Banks) and Clause 39.3 (Exceptions) the Agent, if it has the prior
consent of an Instructing Group, and the Obligors may from time to time
agree in writing to amend the Finance Documents or to waive,
prospectively or retrospectively, any of the requirements of the Finance
Documents and any amendments or waivers so agreed shall be binding on all
the Finance Parties, provided that:
39.1.1 no such waiver or amendment shall subject any Finance Party
hereto to any new or additional obligations without the consent
of such Finance Party; and
39.1.2 no such amendment or waiver shall result in any Bank which has a
Revolving Commitment being required to participate in a Revolving
Advance unless the consent of the Banks with Revolving
Commitments exceeding sixty-six and two-thirds per cent. of the
aggregate of the Revolving Commitments has been obtained.
39.2 AMENDMENTS REQUIRING THE CONSENT OF ALL THE BANKS An amendment or waiver
which relates to:
39.2.1 Clause 30 (Sharing) or this Clause 39 (Amendments);
39.2.2 a decrease in the principal amount of any payment to a Bank under
the Finance Documents, or a change in the currency of any Advance
or deferral of the Repayment Date or Final Maturity Date;
39.2.3 a decrease in the Cash Paid Margin, the Rolled-Up Margin, the
commitment commission, the amount or currency of any payment of
interest, fees or any other amount payable hereunder to any
Finance Party or deferral of the date for payment thereof;
39.2.4 an increase in a Bank's Commitment;
39.2.5 an Event of Default or Potential Event of Default which relates
to a Repeated Representation, Clause 19 (Financial Condition) or
sub-clause 20.15 (Negative Pledge) is continuing;
39.2.6 the definition of Event of Default or Instructing Group;
39.2.7 a change to any material provision of any Security Document;
39.2.8 (save for Permitted Disposals) the discharge or release of any
Security; or
39.2.9 any provision which contemplates the need for the consent or
approval of all the Banks,
shall not be made without the prior consent of all the Banks.
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39.3 EXCEPTIONS
Notwithstanding any other provisions hereof, neither the Agent nor the
Security Agent shall be obliged to agree to any such amendment or waiver
if the same would:
39.3.1 (in respect of the Agent or Security Agent) amend or waive this
Clause 39 (Amendments), Clause 24 (Costs and Expenses) or Clause
31 (The Agent, the Arranger, the Underwriters and the Banks); or
39.3.2 otherwise amend or waive any of the Agent's or Security Agent's
rights hereunder or subject the Agent or Security Agent or any
Arranger to any additional obligations hereunder or under the
other Finance Documents.
39.4 AMENDMENTS BY PARENT
The Parent (acting on behalf of each of the Obligors) may agree any
amendment to or modification of the provisions of any of the Finance
Documents or any schedule thereto, or grant any waiver or consent in
relation thereto.
39.5 AMENDMENT TO CORRECT MANIFEST ERROR
The Agent may agree with the Parent (acting on behalf of each of the
Obligors) any amendment to or the modification of the provisions of any
of the Finance Documents or any schedule thereto, which is necessary to
correct a manifest error.
40. GOVERNING LAW
This Agreement is governed by English law.
41. JURISDICTION
41.1 ENGLISH COURTS
The courts of England have exclusive jurisdiction to settle any dispute
(a "DISPUTE") arising out of or in connection with the Finance Documents
(including a dispute regarding the existence, validity or termination of
this Agreement or the consequences of its nullity).
41.2 CONVENIENT FORUM
The parties agree that the courts of England are the most appropriate and
convenient courts to settle Disputes between them and, accordingly, that
they will not argue to the contrary.
41.3 NON-EXCLUSIVE JURISDICTION
This Clause 41 (Jurisdiction) is for the benefit of the Finance Parties
only. As a result and notwithstanding Clause 41.1 (English Courts), it
does not prevent any Finance Party from taking proceedings relating to a
Dispute ("PROCEEDINGS") in any other courts with jurisdiction. To the
extent allowed by law, the Finance Parties may take concurrent
Proceedings in any number of jurisdictions.
41.4 SERVICE OF PROCESS
Each Original Obligor agrees that the documents which start any
Proceedings and any other documents required to be served in relation to
those Proceedings may be served
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on it on the Parent at its registered office. If any Obligor ceases to
have a place of business in Great Britain or, as the case may be, the
appointment of the person mentioned in this Clause 41.4 (Service of
Process) (or, as the case may be, the relevant Accession Memorandum)
ceases to be effective, the relevant Obligor shall immediately appoint
another person in England to accept service of process on its behalf in
England. If an Obligor fails to do so (and such failure continues for a
period of not less than fourteen days), the Agent shall be entitled to
appoint such a person by notice to such Obligor. Nothing contained herein
shall restrict the right to serve process in any other manner allowed by
law. This Clause 41.4 (Service of Process) applies to Proceedings in
England and to Proceedings elsewhere.
AS WITNESS the hands of the duly authorised representatives of the parties
hereto the date and year first above written.
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SIGNATURES
THE PARENT
TRANSWORLD HOLDINGS (UK) LIMITED
By: XXXXX XXXXXXXXX
Address: XXXXXXXXX XXXXX
0 XXXXXX XXXXXX
XXXXXX, XX0X 0XX
Fax:
Attention:
THE ORIGINAL BORROWER
TRANSWORLD HEALTHCARE (UK) LIMITED
By: XXXXX XXXXXXXXX
Address: XXXXXXXXX XXXX
XXXXX XXXXX
XXXXXXXXX
XXXXXX
XXXXXXXXXXXXXXX, XX00 0XX
Fax:
Attention:
- 100 -
THE ORIGINAL GUARANTORS
TRANSWORLD HOLDINGS (UK) LIMITED
By: XXXXX XXXXXXXXX
Address: XXXXXXXXX XXXXX
0 XXXXXX XXXXXX
XXXXXX, XX0X 0XX
Fax:
Attention:
TRANSWORLD HEALTHCARE (UK) LIMITED
By: XXXXX XXXXXXXXX
Address: XXXXXXXXX XXXX
XXXXX XXXXX
XXXXXXXXX
XXXXXX
XXXXXXXXXXXXXXX, XX00 0XX
Fax:
Attention:
OMNICARE LIMITED
By: XXXXX XXXXXXXXX
Address: XXXXXXXXX XXXX
XXXXX XXXXX
XXXXXXXXX
XXXXXX
XXXXXXXXXXXXXXX, XX00 0XX
Fax:
Attention:
- 101 -
ALLIED MEDICARE LIMITED
By: XXXXX XXXXXXXXX
Address: MEDICARE HOUSE
STONE BUSINESS PARK
XXXXXXX XXXX
XXXXX
XXXXXXXXXXXXX, XX00 0XX
Fax:
Attention:
AMCARE LIMITED
By: XXXXX XXXXXXXXX
Address: XXXXXXX XXXXX
XXXXXXXXXX XXXXX
XXXX XXXXX
XXXXXXXXXXXX, XX00 0XX
Fax:
Attention:
ALLIED OXYCARE LIMITED
By: XXXXX XXXXXXXXX
Address: XXXXXXX XXXXX
XXXXXXXXXX XXXXX
XXXX XXXXX
XXXXXXXXXXXXX, XX00 0XX
Fax:
Attention:
- 102 -
NOVACARE (UK) LIMITED
By: XXXXX XXXXXXXXX
Address: XXXX 00
XXXXXX XXXXX
XXXXXX XXXXXX
XXXXXXX
XXXXX, XX0 0XX
Fax:
Attention:
THE ARRANGER
PARIBAS
By: XXXXXXX XXX
Address: 00 XXXXXXXX XXXXXX
XXXXXX, XX0 0XX
Fax: 0000 000 0000
Attention: XXXXXXX XXX
THE AGENT
PARIBAS
By: XXXXXXX XXX
Address: 00 XXXXXXXX XXXXXX
XXXXXX, XX0 0XX
Fax: 0000 000 0000
Attention: XXXXXXX XXX
- 103 -
THE SECURITY AGENT
BARCLAYS BANK PLC
By: XXXXXXX XXXX
Address: 0XX XXXXX
00 XXXXXXX XXXXXX
XXXXXX, XX0X 0XX
Fax: 0000 000 0000
Attention: XXXXXXX XXXXX
THE UNDERWRITERS
PARIBAS
By: XXXXXXX XXX
Address: 00 XXXXXXXX XXXXXX
XXXXXX, XX0 0XX
Fax: 0000 000 0000
Attention: XXXXXXX XXX
THE BANKS
PARIBAS
By: XXXXXXX XXX
Address: 00 XXXXXXXX XXXXXX
XXXXXX, XX0 0XX
Fax: 0000 000 0000
Attention: XXXXXXX XXX
- 104 -
