Exhibit 99.7
DATED 20 DECEMBER 2001
INVERNESS MEDICAL INNOVATIONS, INC.
as Parent Guarantor
and
INVERNESS MEDICAL SWITZERLAND GmbH
and
THE LENDERS
and
RBS MEZZANINE LIMITED
as Facility Agent
and
RBS MEZZANINE LIMITED
as Lead Arranger
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MEZZANINE LOAN AGREEMENT
relating to
a term loan facility of US$10,000,000
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CONTENTS
CLAUSE PAGE
1. Definitions And Interpretation..................................................................1
2. Facility.......................................................................................23
3. Purpose........................................................................................23
4. Conditions Precedent...........................................................................24
5. Drawdown Of Facility...........................................................................24
6. Interest.......................................................................................26
7. Repayment, Prepayment And Cancellation.........................................................28
8. Changes In Circumstances.......................................................................30
9. Payments.......................................................................................34
10. Security.......................................................................................38
11. Representations And Warranties.................................................................38
12. Undertakings...................................................................................43
13. Default........................................................................................55
14. Set-Off........................................................................................57
15. Pro Rata Sharing...............................................................................57
16. The Finance Parties............................................................................58
17. Fees And Expenses..............................................................................64
18. Amendments And Waivers.........................................................................66
19. Miscellaneous..................................................................................67
20. Notices........................................................................................67
21. Assignments And Transfers......................................................................69
22. Indemnities....................................................................................71
23. Law And Jurisdiction...........................................................................72
Schedule 1 THE LENDERS......................................................................73
Schedule 2 .................................................................................74
Part A Conditions Precedent.............................................................74
Part B Conditions Subsequent............................................................78
Schedule 3 DRAWDOWN NOTICE..................................................................80
Schedule 4 THE GROUP........................................................................81
Part A Existing Group Companies.........................................................81
Part B Target Group Companies...........................................................82
Schedule 5 MANDATORY COST RATE..............................................................83
Schedule 6 FORM OF TRANSFER CERTIFICATE.....................................................85
Schedule 7 FORM OF NET ASSETS LETTER........................................................90
Schedule 8 THE PROPERTIES...................................................................92
THIS AGREEMENT is made on 20 December 2001
BY:
(1) INVERNESS MEDICAL INNOVATIONS INC., a company incorporated under the laws
of the state of Delaware with its principal offices at 00 Xxxxxx Xxxx,
Xxxxx 000, Xxxxxxx, Xxxxxxxxxxxxx 00000 (the "PARENT GUARANTOR");
(2) INVERNESS MEDICAL SWITZERLAND AG, a company incorporated in Switzerland
with registered number ch170.4.003.523-4 ("SWISS NEWCO");
(3) THE LENDERS listed in Schedule 1 (THE LENDERS);
(4) RBS MEZZANINE LIMITED of 000 Xxxxxxxxxxx, Xxxxxx XX0X 0XX as the Facility
Agent (as that term is more particularly defined below); and
(5) RBS MEZZANINE LIMITED of 000 Xxxxxxxxxxx, Xxxxxx XX0X 0XX as the lead
arranger of the facility made available under this Agreement (in such
capacity, the "LEAD ARRANGER").
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"ACCOUNTANTS' REPORTS" means:
(a) the report dated not later than the date of this Agreement
prepared by Xxxxxx Xxxxxxxx; and
(b) the financial due diligence report dated on 24 August 2001
prepared by PricewaterhouseCoopers,
in each case relating to the Targets and their Subsidiaries (other than
the IVC Group) and the Target Assets and addressed to and/or capable of
being relied upon by, among others, the Facility Agent on behalf of the
Finance Parties.
"ACCOUNTING PRINCIPLES" means the GAAP used in the preparation of the
Business Plan.
"ACCOUNTS" means:
(a) in relation to the Group, (i) its audited consolidated accounts
(including all additional information and notes to the accounts)
together with the relevant directors' report and auditors' report
and (ii) its unaudited consolidating schedule of income
statements;
(b) in relation to any other Material Company from time to time, if,
and to the extent, so required by applicable law, its audited
accounts together with the relevant directors' report and
auditors' report;
"ACCRUED MARGIN" means 4.00 per cent. per annum.
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"ACQUISITION AGREEMENT" means the sale agreement dated on or before the
date of this Agreement relating to the sale and purchase of the Target
Shares and the Target Assets and made between, among others, the Parent
Guarantor and the Vendor.
"ACQUISITION COSTS" means those fees, commissions, costs and expenses
incurred by the Group in relation to the acquisition of the Target Shares
and the Target Assets (including the financing thereof).
"ACQUISITION DOCUMENTS" means the Acquisition Agreement together with all
other documents referred to in the Acquisition Agreement which are
entered into in contemplation of, or relating to, the acquisition of the
Target Shares and the Target Assets but, for the avoidance of doubt,
shall not include the Disclosure Letter.
"ACT" means the Companies Xxx 0000.
"ADDITIONAL COST RATE" means, in relation to any Advance and:
(a) a Lender acting out of a Lending Office in the United Kingdom,
the Mandatory Cost Rate; or
(b) a Lender acting out of a Lending Office outside the United
Kingdom, the cost, if any, certified by such Lender as the cost
to it of complying with the reserve asset and other regulatory
requirements of the European Central Bank in relation to that
Advance or any class of loans of which that Advance forms part,
expressed as a percentage rate per annum for the relevant
Interest Period.
"ADVANCE" means the advance made or to be made to Swiss Newco under the
Facility or, as the case may be, the outstanding principal amount of that
advance as the same may be increased pursuant to sub-clause 6.1.3 of
Clause 6.1 (INTEREST RATE).
"AFFILIATE" means, in relation to a Group Company, any company which is
its Subsidiary or its holding company (within the meaning of Section 736
of the Companies Act 1985) or a Subsidiary of such holding company.
"AGREED INVESTOR GROUP" means the Preferred Equity Investors and the
Bridge Note Holders or, a the case may be, the Bridge Note Refinancing
Investors.
"ASSET SECURITY DOCUMENT" means, in relation to a Group Company, such
document or documents in favour of the Security Trustee as will under the
laws of that Group Company's jurisdiction of incorporation create
security over all or substantially all or over a certain specific class
of its assets and undertaking and which are in form and substance
reasonably satisfactory to the Security Trustee.
"ASSIGNMENT" means the assignment granted by the Parent Guarantor to the
Security Trustee relating to the Acquisition Agreement.
"AUDITORS" means, in relation to each Group Company, Messrs Xxxxxx
Xxxxxxxx or Messrs PricewaterhouseCoopers or any other firm of chartered
accountants of internationally recognised standing that has been
appointed as auditors of such Group Company.
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"BENELUX" means Inverness Medical Benelux BVBA a company duly
incorporated under the laws of Belgium with registered number 585069.
"BRIDGE NOTE AGREEMENT" means the note and warrant purchase agreement
pursuant to which the Bridge Notes are, or are to be, constituted.
"BRIDGE NOTE HOLDERS" means Xxxxxxxxx Family Ventures, LLC, Xxxxxxx X.
Xxxxxxx as Trustee under the Xxxxxxx X. Xxxxxxx 1996 Revocable Trust
U/A/D 03/26/96, Xxxxxx Xxxxxxxxx and Xxxx Xxxxxxxxx as Trustee under US
Boston Corporation PSRP U/A/D 19/01/84 A/C X. Xxxxxxxxx who each hold
Bridge Notes which have been issued pursuant to the Bridge Note
Instrument, and any one of them a "BRIDGE NOTE HOLDER".
"BRIDGE NOTE REFINANCING INVESTOR" means any one or more of (a) an
institution or group of institutions of which US Boston Capital
Corporation is the lead arranger and facility agent; (b) an institution
which is acceptable to the Facility Agent; and (c) a Preferred Stock
Holder.
"BRIDGE NOTES" means the US$20,000,000 unsecured subordinated bridge
notes due 1 April 2002.
"BRIDGE NOTE REFINANCING INDEBTEDNESS" means any Indebtedness incurred by
the Parent Guarantor to the Bridge Note Refinancing Investors pursuant to
the Permitted Bridge Note Refinancing.
"BUSINESS DAY" means a day (other than Saturday or Sunday) on which
Lenders are open for general interbank business in London and:
(a) in relation to a transaction involving Dollars, New York;
(b) in relation to a transaction involving an Alternative Currency
other than euros, in the principal financial centre of the
country of that Alternative Currency; and
(c) in relation to any date for payment or purchase of a sum
denominated in euro, any TARGET Day.
"BUSINESS PLAN" means the financial model for the Group setting out the
projections for the Group's businesses and operations signed off by
Xxxxxx Xxxxxxxx, dated no later than the date of this Agreement.
"CAPITAL EXPENDITURE" has the meaning given to that term by GAAP.
"CASHFLOW" means, in respect of the Group in relation to any period, the
aggregate of EBITDA for that period:
(a) plus, save to the extent applied in prepaying the Senior
Facilities or the Facility, to the extent not already taken
account of in EBITDA, the net proceeds of fixed assets disposed
of during that period;
(b) plus any receipts by way of extraordinary or exceptional items
and minus any payments by way of extraordinary or exceptional
items, in each case, received or made during that period;
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(c) plus any decrease, or minus any increase, in Net Working Capital
during that period;
(d) minus any cash dividends paid in respect of minority interests
for that period;
(e) plus any dividends received from other fixed assets investments
during that period;
(f) plus income received from companies in which Group Companies own
shares but which are not Group Companies to the extent received
in cash and minus any payment made to any such companies during
that period;
(g) plus any increase or minus any decrease in provisions for
liabilities and charges made in respect of that period;
(h) minus Capital Expenditure in respect of that period paid or
contractually required to be paid during that period;
(i) plus realised exchange gains and minus realised exchange losses
charged during that period; and
(j) minus the aggregate of all corporation or other similar Taxes
paid during that period,
in each case to the extent not already taken into account of in the
calculation of EBITDA for that period.
(For the purposes of this definition "NET WORKING CAPITAL" means the
aggregate of Current Assets (excluding all of cash at bank and cash in
hand, all assets relating to Tax and accrued interest receivable) less
the aggregate of Current Liabilities (excluding monies due in relation to
the Senior Facilities and the Facility and liabilities in relation to Tax
Extraordinary Items and dividends payable);"CURRENT ASSETS" means, in
relation to the Group, the aggregate value of its assets which are
treated as current assets in accordance with GAAP and "CURRENT
LIABILITIES" means, in relation to the Group, the aggregate value of its
liabilities which are treated as current liabilities in accordance with
GAAP.
"CASH MARGIN" means 3.5 per cent. per annum.
"CDIL" means Cambridge Diagnostics Ireland Limited, a company
incorporated under the laws of Ireland with registered number 83457.
"CERTIFIED COPY" means, in relation to a document, a copy of that
document bearing the endorsement "Certified a true, complete and accurate
copy of the original, which has not been amended otherwise than by a
document, a Certified Copy of which is attached hereto", which has been
signed and dated by a duly authorised officer of the relevant company and
which complies with that endorsement.
"CHANGE" means, in relation to a Lender (or any company of which that
Lender is a Subsidiary), the introduction, implementation, repeal,
withdrawal or change in, or in the interpretation or application of, (a)
any law, regulation, practice or concession, or (b) any
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directive, requirement, request or guidance (whether or not having the
force of law but if not having the force of law, one which applies
generally to a class or category of financial institutions of which that
Lender (or that company) forms part and compliance with which is in
accordance with the general practice of those financial institutions) of
the European Community, any central bank including the European Central
Bank, the Financial Services Authority, or any other fiscal, monetary,
regulatory or other authority of competent jurisdiction.
"CHANGE OF CONTROL" means a situation where:
(i) either Xxx Xxxxxxxxx or Xxxxx Xxxxx ceases to be a member of the
board of the Parent Guarantor; or
(ii) there is a breach by Xxx Xxxxxxxxx of the terms of the Lock Up
Agreement; or
(iii) a person alone or together with any associated person or persons
becomes the beneficial owner of shares in the issued share
capital of the Parent Guarantor carrying the right to exercise
more than 50 per cent. of the votes exercisable at a general
meeting of the Parent Guarantor (for the purposes of this
definition (1) "ASSOCIATED PERSON" means, in relation to any
person, a person who is (i) "ACTING IN CONCERT" (as defined in
the UK City Code on Takeovers and Mergers) with that person or
(ii) a "CONNECTED PERSON" (as defined in the section 839 of the
Income and Corporation Taxes Act 1988) of that person and persons
shall not be considered associated solely by reason of their
being employees of any Group Company and (2) "BOARD" means the
body of persons which directs the management and policies of the
Parent Guarantor whether through the ownership of share capital,
contract or otherwise.
"CHARGING GROUP COMPANIES" means each Group Company which has granted, or
is by the terms of this Agreement to grant, a Group Guarantee and an
Asset Security Document and shall at all times include Swiss Newco; and
"CHARGING GROUP COMPANY" shall be construed accordingly.
"CODE" means the US Internal Revenue Code of 1986, as amended from time
to time.
"COMMITMENT" means, in relation to a Lender, the principal amount
described as such set opposite its name in Schedule 1 (THE LENDERS) or,
in relation to a Lender Transferee, set out under the heading "AMOUNT OF
COMMITMENT TRANSFERRED" in the schedule to any relevant Transfer
Certificate, in each case, as reduced or cancelled in accordance with
this Agreement.
"COMMITMENT PERIOD" means the period from and including the date of this
Agreement to and including the date falling 5 days after the date of
Completion.
"COMPLETION" means completion of the sale and purchase of the Target
Shares and the Target Assets pursuant to the Acquisition Agreement.
"COMPLIANCE CERTIFICATE" has the meaning given to that term in sub-clause
12.1.5 of Clause 12.1 (INFORMATION UNDERTAKINGS).
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"DANGEROUS MATERIALS" means any element or substance, whether consisting
of gas, liquid, solid or vapour, identified by any Environmental Law to
be, to have been, or to be capable of being or becoming, harmful to
mankind or any living organism or damaging to the Environment.
"DEFAULT" means any event specified as such in Clause 13.1 (DEFAULT).
"DEFAULT NOTICE" has the meaning given to that term in Clause 13.2
(ACCELERATION, ETC.).
"DEFINED BENEFIT PLAN" means any plan subject to Title IV of ERISA that
is not a Multiemployer Plan.
"DEPRECIATION" has the meaning given to that term by GAAP.
"DISCLOSURE LETTER" has the meaning given to that term in the Acquisition
Agreement.
"DISPOSAL" means a sale, transfer or other disposal (including by way of
lease or loan, factoring or discounting) by a person of all or part of
its assets, whether by one transaction or a series of transactions and
whether at the same time or over a period of time.
"DISPOSAL PROCEEDS" means, in respect of a Disposal by a Group Company,
the gross cash consideration receivable by that Group Company for that
Disposal less all Taxes, costs and expenses directly incurred in respect
of that Disposal.
"DOLLAR" and "US$" means the lawful currency for the time being of the
United States of America.
"DOLLAR EQUIVALENT" means, in relation to an amount in an Alternative
Currency on the day on which the calculation falls to be made, the amount
of Dollars which could be purchased with that amount of the Alternative
Currency using the Facility Agent's spot rate of exchange for the
purchase in the London foreign exchange market of Dollars with the
Alternative Currency at or about 11.00 a.m. on the second Business Day
before that date.
"DRAWDOWN DATE" means the date on which the Advance is made, or is
proposed to be made.
"DRAWDOWN NOTICE" means a notice substantially in the form set out in
Schedule 3 (DRAWDOWN NOTICE).
"DUE DILIGENCE REPORTS" means:
(a) the following reports prepared by Xxxxx & Xxxxx (1) the report
entitled "Legal Due Diligence Report" dated 23 November 2001 (2)
the addendum report updating the Legal Due Diligence Report dated
on or before the date of this Agreement and (3) the Persona
Letter dated 26 November 2001 addressed to Inverness Medical
Technology Inc, each relating to the Targets; and
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(b) the report entitled "The Legal Due Diligence Memorandum" dated
18 December 2001 prepared by Xxxxxxx Xxxxxxxx & Xxxxxxxx
relating to the Parent Guarantor and its Subsidiaries,
each addressed to and/or capable of being relied upon by, among others,
the Facility Agent on behalf of the Finance Parties.
"EBITDA" means, in relation to any period, the consolidated profit of the
Group for that period before Taxation and Total Net Interest Costs adding
back:
(a) Depreciation charged to the consolidated profit and loss account
of the Group during such period;
(b) goodwill or any other intangible asset amortised or written off,
inclusive of any impairment charge of goodwill in accordance with
FASB 141 and 142, against the consolidated profit and loss
account of the Group during such period; and
(c) any amount amortised against, or charged to, the consolidated
profit and loss account of the Group during such period in
respect of Acquisition Costs,
but excluding:
(i) profit and loss attributable to minority interests;
(ii) extraordinary and exceptional items;
(iii) any profit or loss arising on the disposal of fixed assets;
(iv) amounts written off the value of investments;
(v) income from companies in which Group Companies own shares but
which are not Group Companies; and
(vi) realised and unrealised exchange gains and losses.
"ERISA" means the US Employee Retirement Income Security Act of 1974, as
in effect from time to time or any successor law.
"ERISA AFFILIATE" means any entity required at any relevant time to be
aggregated with a Group Company under Section 414(b) or (c) of the
Internal Revenue Code and, in addition, for the purposes of any provision
of this Agreement that relates to Section 412(n) of the Internal Revenue
Code, the term ERISA Affiliate shall mean any entity aggregated with a
Group Company under Sections 414(b), (c), (m) or (o) of the Internal
Revenue Code.
"EMU LEGISLATION" means legislative measures of the Council of the
European Union for the introduction of, changeover to, or operation of,
the euro.
"ENCUMBRANCE" means any mortgage, charge, assignment by way of security,
pledge, hypothecation, lien, right of set-off, retention of title
provision, trust or flawed asset arrangement (for the purpose of, or
which is intended to have the effect of, granting security) or any other
security interest of any kind whatsoever, or any agreement,
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whether conditional or otherwise, to create any of the same, or any
agreement to sell or otherwise dispose of any asset on terms whereby such
asset is or may be leased to or re-acquired or acquired by any Group
Company.
"ENVIRONMENT" means all or any of the following media: air (including air
within buildings or other structures and whether above or below ground);
land (including buildings and any other structures or erections in, on or
under it and any soil and anything below the surface of land); land
covered with water; and water (including sea, ground and surface water).
"ENVIRONMENTAL LAW" means any statutory or common law, treaty,
convention, directive or regulation having legal or judicial effect
whether of a criminal or civil nature, concerning:
(a) pollution or contamination of the Environment;
(b) harm, whether actual or potential, to mankind and human senses,
living organisms and ecological systems;
(c) the generation, manufacture, processing, distribution, use
(including abuse), treatment, storage, disposal, transport or
handling of Dangerous Materials; or
(d) the emission, leak, release or discharge into the Environment of
noise, vibration, dust, fumes, gas, odours, smoke, steam,
effluvia, heat, light, radiation (of any kind), infection,
electricity or any Dangerous Material and any matter or thing
capable of constituting a nuisance or an actionable tort of any
kind in respect of such matters.
"EURO" means the single currency of the Participating Member States.
"EXCHANGE CONTRACT" has the meaning given to such term in sub-clause
5.1.2 of Clause 5.1 (DRAWDOWN OF FACILITY).
"FACILITY" means the term loan facility referred to in Clause 2.1
(FACILITY).
"FACILITY AGENT" means RBS Mezzanine Limited in its capacity as facility
agent and each successor Facility Agent appointed under Clause 16.12
(RESIGNATION).
"FEES LETTER" means the letter dated the same date as this Agreement from
the Facility Agent to the Parent Guarantor relating to certain fees
payable to the Lead Arranger and the Facility Agent by the Parent
Guarantor in relation to this Agreement, being described on its face as
the "MEZZANINE FEES LETTER".
"FINAL REPAYMENT DATE" means 31 December 2010.
"FINANCE LEASE" means any lease, hire agreement, credit sale agreement,
hire purchase agreement, conditional sale agreement or instalment sale
and purchase agreement which should be treated in accordance with the
relevant GAAP as a finance lease or in the same way as a finance lease.
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"FINANCE LEASE EXPENDITURE" means the capital value of any asset the
subject of a Finance Lease to which a Group Company is a party as the
lessee.
"FINANCE PARTIES" means all and each of the Lead Arranger, the Facility
Agent, the Security Trustee and the Lenders; and "FINANCE PARTY" shall be
construed accordingly.
"FINANCIAL YEAR" means, in relation to a company, the tax and accounting
year of such company.
"FINANCING DOCUMENTS" means this Agreement, the Warrant Instrument, the
Fees Letter, the Interest Rate Protection Agreements and the Security
Documents.
"GAAP" means, in relation to a company, accounting principles, concepts,
bases and policies generally adopted and accepted in the jurisdiction of
its incorporation.
"GROUP" means the Parent Guarantor, the Targets and each of their
respective Subsidiaries but excluding each IVC Group Company; and "GROUP
COMPANY" means any one of them.
"GROUP GUARANTEE" means a guarantee, in the agreed form, executed or to
be executed in favour of the Security Trustee.
"GUARANTEE AND DEBENTURE" means a guarantee and debenture, granted by a
company incorporated in England and Wales, in the agreed form, executed
or to be executed in favour of the Security Trustee.
"GUARANTOR" means each Group Company that has executed a Group Guarantee
or a Guarantee and Debenture.
"HOLDCO UK" means IM Acquisition Limited, a company incorporated under
the laws of England and Wales with registered number 4267530.
"HOLDCO US" means Inverness Medical Acquisition Corp., a company
incorporated under the laws of Delaware having its registered address at
00 Xxxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxxxxxxx 00000.
"INDEBTEDNESS" means, in relation to a person, its obligation (whether
present or future, actual or contingent, as principal or surety) for the
payment or repayment of money (whether in respect of interest, principal
or otherwise) incurred in respect of:
(a) moneys borrowed or raised;
(b) any bond, note, loan stock, debenture or similar instrument;
(c) any acceptance credit, xxxx discounting (to the extent there is
recourse to such person), note purchase, factoring (to the extent
there is recourse to such person) or documentary credit facility;
(d) the supply of any goods or services which is more than 90 days
past the expiry of the period customarily allowed by the relative
supplier after the due date;
(e) any Finance Lease;
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(f) any guarantee, bond, stand-by letter of credit or other similar
instrument issued in connection with the performance of financial
obligations;
(g) any interest rate or currency swap agreement or any other hedging
or derivatives instrument or agreement;
(h) any arrangement entered into primarily as a method of raising
finance pursuant to which any asset sold or otherwise disposed of
by that person is or may be leased to or re-acquired by a Group
Company (whether following the exercise of an option or
otherwise); or
(i) any guarantee, indemnity or similar insurance against financial
loss given in respect of the obligation of any person falling
within any of paragraphs (a) to (h) above inclusive,
PROVIDED THAT there shall be no double counting.
"INFORMATION PACKAGE" means:
(a) the Accountants' Reports;
(b) the Business Plan;
(c) the Due Diligence Reports;
(d) the Insurance Report;
(e) the Intellectual Property Report;
(f) the Market Report;
(g) the Pensions Report; and
(h) the Tax Letter.
"INSTALMENT" has the meaning given to that term in Clause 7.1 (REPAYMENT
OF LOAN).
"INSTALMENT REPAYMENT DATE" has the meaning given to that term in Clause
7.1 (REPAYMENT OF LOAN)
"INSURANCE PROCEEDS" means any insurance proceeds (net of Taxes, costs
and expenses associated with the making of the relevant claims under the
relevant policies and any amount required to be paid to a person
exercising its rights over the relevant asset pursuant to a Permitted
Encumbrance) payable to (or to the order of) or received by a Group
Company in respect of the loss or destruction of, or damage to, an asset.
"INSURANCE REPORT" means the insurance reported prepared by AON Limited
dated no later than the date of this Agreement relating to the Group
addressed to and/or capable of being relied upon by, among others, the
Facility Agent on behalf of the Finance Parties.
"INTELLECTUAL PROPERTY REPORT" means the intellectual property report
prepared by Xxxx Xxxxx dated 5 October 2001 and the supplemental report
dated 14 November 2001 relating to the Targets and their Subsidiaries
(other than the IVC Group) and the Target
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Assets addressed to and/or capable of being relied upon by, among others,
the Facility Agent on behalf of the Finance Parties.
"INTELLECTUAL PROPERTY RIGHTS" means all patents, trade marks, service
marks, trade names, design rights, copyright (including rights in
computer software and moral rights and in published and unpublished
work), domain names, titles, rights to know-how and other intellectual
property rights, in each case whether registered or unregistered and
including applications for the grant of any of the foregoing and all
rights or forms of protection having equivalent or similar effect to any
of the foregoing which may subsist anywhere in the world.
"INTERCREDITOR AGREEMENT" means the intercreditor agreement dated the
same date as this Agreement made between the Parent Guarantor, Swiss
Newco, certain Group Companies, the Lenders, the Facility Agent, the
Security Trustee and the other parties to the Senior Credit Agreement.
"INTEREST DATE" means the last day of an Interest Period.
"INTEREST PERIOD" means each period determined in accordance with Clause
6 (INTEREST) for the purpose of calculating interest on Advances or
overdue amounts.
"INTEREST RATE PROTECTION AGREEMENTS" means each agreement entered into
or to be entered into between a Group Company and a Bank (as defined in
the Senior Credit Agreement) for the purpose of hedging a Group Company's
interest rate liabilities in relation to all or any part of the Term
Loans (as defined in the Senior Credit Agreement) or the Loan.
"INVESTORS" means the Agreed Investor Group and certain other Preferred
Stock Holders.
"IVC" means IVC Industries, Inc.
"IVC GROUP" means IVC and each of its Subsidiaries; and "IVC GROUP
COMPANY" means any one of them.
"KEYMAN INSURANCE" means keyman life assurance policies (in form and
content reasonably satisfactory to the Facility Agent and with such
insurer as the Facility Agent may reasonably approve) maintained by the
Parent Guarantor in respect of the death or disability of the following
members of the Management and in not less than the following respective
amounts:
NAME US$
Xxx Xxxxxxxxx 500,000
Xxxxxxx Xxxxxxxx 250,000
Xxxxx Xxxxxx 250,000
Xxxxx Xxxxx 250,000
Xxxxxxx Xxxxxxx 250,000
"KEYMAN INSURANCE ASSIGNMENT" means an assignment in the agreed form
relating to the Keyman Insurance executed or to be executed by the Parent
Guarantor in favour of the Security Trustee.
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"LEGALLY MORTGAGED PROPERTY" means the leasehold property listed in
Schedule 8 (THE PROPERTIES) and to be legally mortgaged pursuant to a
Guarantee and Debenture granted by Holdco UK of even date and any
supplemental legal charge pursuant thereto.
"LENDERS" means the Lenders and financial institutions (including funds)
listed in Schedule 1 (THE LENDERS) and any Lender Transferee, together
with their respective successors in title, PROVIDED THAT any bank or
financial institution which transfers all of its Commitment in accordance
with Clause 21.4 (TRANSFERS BY LENDERS) shall cease to be a "Lender".
"LENDER TRANSFEREE" has the meaning given to that term in sub-clause
21.4.2 of Clause 21.4 (TRANSFERS BY LENDERS).
"LENDING OFFICE" means, in relation to a Lender, the office set out under
its name in Schedule 1 (THE LENDERS) or in the schedule to its relevant
Transfer Certificate, or such other office through which that Lender's
Commitment is maintained and through which its Participation in the
Facility is made and maintained under this Agreement.
"LIBOR" means, in relation to the Advance or overdue amount in a
particular currency and in relation to a particular Interest Period:
(a) the interest rate for deposits in that currency for a period
equal to that Interest Period which appears on the screen display
designated as "PAGE 248", "PAGE 3750", "PAGE 3740" or "PAGE
3770", as appropriate, on the Telerate Service (or such other
screen display or service as may replace it for the purpose of
displaying British Bankers' Association LIBOR Rates for deposits
in that currency in the London interbank market) at or about
11.00 a.m. on the applicable Rate Fixing Day for that currency;
and
(b) if no such interest rate appears on the Telerate Service (or such
replacement), the arithmetic mean (rounded upwards to 4 decimal
places) of the rates per annum (as quoted to the Facility Agent
at its request) at which each Reference Lender was offering
deposits in that currency in an amount comparable with that
Advance or overdue amount, as the case may be, to leading Lenders
in the London interbank market for a period equal to that
Interest Period at or about 11.00 a.m. on the applicable Rate
Fixing Day for that currency.
"LOCK UP AGREEMENT" means the lock up agreement dated on or before the
date of this Agreement made between the Parent Guarantor, Xxx Xxxxxxxxx,
Xxxxxxxxx Family Ventures, LLC and RBS Mezzanine Limited.
"MAJORITY LENDERS" means a group of Lenders whose Commitments comprise
at least 66 2/3 per cent. of the Total Commitments but taking no
account, for the purpose of this definition, of the last sentence of
Clause 13.2 (ACCELERATION, ETC.).
"MAJORITY SENIOR BANKS" has the meaning given to the term "Majority
Banks" in the Senior Credit Agreement.
"MANAGEMENT" means Xxx Xxxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxx Xxxxxx, Xxxxx
Xxxxx and Xxxxxxx Xxxxxxx.
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"MANAGEMENT ACCOUNTS" has the meaning given to that term in sub-clause
12.1.2 of Clause 12.1 (INFORMATION UNDERTAKINGS).
"MANDATORY COST RATE" means the rate determined in accordance with
Schedule 5 (MANDATORY COST RATE).
"MARGIN" means the aggregate of the Accrued Margin and the Cash Margin.
"MARKET REPORT" means the market report prepared by Xxxxxx Xxxxxxxx dated
no later than the date of this Agreement relating to the Group addressed
to and/or capable of being relied upon by, among others, the Facility
Agent for and on behalf of the Finance Parties.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on the ability
of (a) the Charging Group Companies (taken as a whole) to comply with
their payment obligations under any Financing Document or (b) the Parent
Guarantor to comply with its obligations under Clause 12.4 (FINANCIAL
UNDERTAKINGS).
"MATERIAL COMPANY" means the Parent Guarantor, each Borrower (as defined
in the Senior Credit Agreement), each Charging Group Company and each
other Group Company:
(a) whose consolidated turnover is equal to or greater than 5 per
cent. of the aggregate consolidated turnover of the Group; or
(b) whose consolidated earnings before interest and Tax is equal to
or greater than 5 per cent. of the aggregate earnings before
interest and Tax of the Group; or
(c) whose consolidated gross assets have a value equal to or greater
than 5 per cent. of the aggregate value of all gross assets owned
by the Group.
For the purpose of paragraphs (a) and (b), turnover and earnings before
interest and Tax shall be measured over a period of at least 12 months
duration ending on a Quarter Date.
"MULTIEMPLOYER PLAN" means a multiemployer plan defined in Sections 3(37)
and/or 4001(a)(3)(A) of ERISA to which any US Group Company or any of the
ERISA Affiliates has an obligation to make contributions or payments, or
to which any such person has within any of the preceding five year plan
years had an obligation to make contributions or payments.
"MULTIPLE EMPLOYER PLAN" means a "SINGLE EMPLOYER PLAN" as defined in
Section 4001(a)(15) of ERISA, that:
(a) is maintained for employees of any US Group Company or any ERISA
Affiliate and at least one person other than any US Group Company
and the ERISA Affiliates; or
(b) was so maintained and in respect of which any US Group Company or
any ERISA Affiliate could have liability under Section 4063, 4064
or 4069 of ERISA if such US Group Company or ERISA Affiliate were
to withdraw therefrom or if the plan has been or were to be
terminated.
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"NEW EQUITY" means ordinary issued share capital of the Parent
Guarantor, Preferred Stock and any other Indebtedness of the Parent
Guarantor which is subordinated as to right of payment and on insolvency
to the Senior Facilities and the Facility (on such terms, for the
avoidance of doubt, similar to but no more onerous than those existing
in respect of the Bridge Notes) to the satisfaction of the Majority
Lenders (acting reasonably), issued, or, as the case may be, incurred
after Completion.
"OPERATING BUDGET" means, in relation to the Group and the period
starting not later than the date of this Agreement and ending on 31
December 2002, the Business Plan, and in relation to each successive 12
month period thereafter during the Security Period:
(a) a projected balance sheet;
(b) a projected profit and loss account which shall include earnings
before interest and tax;
(c) a projected cash flow statement including operating costs and
working capital requirements;
(d) projected covenant calculations relating to each financial
undertaking contained in Clause 12.4 (FINANCIAL UNDERTAKINGS),
(e) projected turnover calculations; and
(f) projected capital expenditure,
relative to each such period and on an annual basis and with Management's
commentary drawing on the previous period's performance and forecast
market conditions.
"PARTICIPATING MEMBER STATE" means a member state of the European Union
which has adopted or adopts the single currency in accordance with the
Treaty establishing the European Community (as that Treaty is amended
from time to time).
"PARTICIPATION" means, in relation to a Lender and the Advance or the
Facility, the part of that Advance made available or to be made available
by that Lender and thereafter the part of the Advance owing to that
Lender from time to time.
"PARTY" means a party to this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation, as defined in
Title IV of ERISA or its successor.
"PENSIONS REPORT" means the pensions report prepared by Xxxxxx Xxxxxxxx
dated no later than the date of this Agreement relating to the Targets
and their Subsidiaries addressed to and/or capable of being relied upon
by, among others, the Finance Parties.
"PERMITTED BRIDGE NOTE REFINANCING" means the refinancing of the Bridge
Notes by any Bridge Note Refinancing Investor pursuant to documentation
that is in form and substance acceptable to the Facility Agent.
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"PERMITTED ENCUMBRANCE" means:
(a) any Encumbrance created under the Financing Documents;
(b) any Encumbrance created with the prior consent of the Majority
Lenders;
(c) any right of set-off or lien, in each case arising by operation
of law;
(d) any retention of title to goods supplied to a Group Company in
the ordinary course of its trading activities;
(e) any right of netting or set-off over credit balances on bank
accounts of Group Companies arising in the ordinary course of the
banking arrangements of the Group;
(f) any agreement entered into by a Group Company in the ordinary
course of its trading activities to sell or otherwise dispose of
any asset on terms whereby that asset is or may be leased to or
re-acquired or acquired by a Group Company;
(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 its trading
activities;
(h) any Encumbrance over an asset of a company which becomes a
Subsidiary of the Parent Guarantor (other than by reason of its
incorporation) after the date of this Agreement, being an
Encumbrance which is in existence at the time at which that
company becomes such a Subsidiary but only if (i) that
Encumbrance was not created in contemplation of that company
becoming such a Subsidiary, (ii) the principal amount secured by
that Encumbrance has not been and shall not be increased and
(iii) that Encumbrance is discharged within 6 months of the date
on which that company became such a Subsidiary;
(i) any Encumbrance over an asset acquired by a Group Company after
the date of this Agreement and subject to which that asset is
acquired but only if (i) that Encumbrance was not created in
contemplation of its acquisition by that company, (ii) the amount
secured by that Encumbrance has not been increased in
contemplation of, or since the date of, its acquisition by that
company and (iii) that Encumbrance is discharged within 6 months
of the date of its acquisition by that company;
(j) the charge dated 12 January 1999 granted by CDIL in favour of the
Industrial Development Agency (Ireland);
(k) the USB Charge; and
(l) any Encumbrance not otherwise permitted pursuant to paragraphs
(a) to (k) above (inclusive) in respect of any assets not
exceeding, in aggregate, US$1,000,000 in value.
-15-
"PERMITTED INDEBTEDNESS" means:
(a) Indebtedness under any Financing Document;
(b) Indebtedness under the Senior Credit Agreement;
(c) Indebtedness under the Bridge Notes or, as the case may be, the
Permitted Bridge Note Refinancing and any New Equity;
(d) Indebtedness existing at the date of this Agreement between Group
Companies;
(e) Indebtedness under any Finance Lease existing at the date of this
Agreement or permitted under sub-clause 12.4.1(d) of Clause 12.4
(FINANCIAL UNDERTAKINGS);
(f) Indebtedness of any Charging Group Company to another Charging
Group Company;
(g) Indebtedness of any Group Company which is not a Charging Group
Company to another such Group Company;
(h) Indebtedness of any Group Company which is not a Charging Group
Company to a Charging Group Company;
(i) Indebtedness of any Group Company to the extent it is the subject
of a Guarantee;
(j) Indebtedness of any Group Company to another Group Company to the
extent it is incurred in the ordinary course of the customary
cash management practices of the Group;
(k) Indebtedness under loans permitted under sub-clause 12.3.6 of
Clause 12.3 (NEGATIVE UNDERTAKINGS); and
(l) Indebtedness not otherwise referred to in paragraphs (a) to (j)
above (inclusive) in an aggregate principal amount not exceeding
US$3,250,000 for the Group taken as a whole.
"PLAN" means any employee pension benefit plan (as defined in Section
3(2) or ERISA) which is subject to Title IV of ERISA and which any US
Group Company or any ERISA Affiliate is an "employer" (as defined in
Section 3(5) of ERISA).
"POTENTIAL DEFAULT" means an event or omission which, with the giving of
any notice, the lapse of time, the determination of materiality or the
satisfaction of any other condition, in each case, under Clause 13.1
(DEFAULT), would be a Default.
"PREFERRED EQUITY INVESTORS" means Oxford BioScience, Belmont Capital,
Xxxxxx Hill Partners, Xxxxxxx Xxxxx, Xxx Xxxxxxxxx, Xxxxx Xxxxxxxx and
Xxxx Xxxxxxxxx.
"PREFERRED STOCK" means the US$80,000,000 unsecured series A convertible
preferred stock issued, or to be issued, by the Parent Guarantor under
and pursuant to the Stock Purchase Agreement.
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"PREFERRED STOCK HOLDER" means a person who holds Preferred Stock which
have been issued pursuant to the Stock Purchase Agreement.
"PROHIBITED TRANSACTION" means a transaction that is prohibited under
Section 4975 of the Code or Section 406 or 407 of ERISA and not exempt
under section 4975 of the Code or Section 408 of ERISA.
"QUARTER" means a period of three months ending on a Quarter Date.
"QUARTER DATE" means each 31 March, 30 June, 30 September and 31
December.
"RATE FIXING DAY" means, in relation to any currency and any Interest
Period, the day on which quotes are customarily given in the London
interbank market for deposits in that currency for delivery on the first
day of that Interest Period, PROVIDED THAT if, for any such period,
quotations would ordinarily be given on more than one date, the Rate
Fixing Date for that period shall be the last of those dates.
"REFERENCE LENDERS" means the principal London offices of The Royal Bank
of Scotland plc and such other bank or Lenders as may be agreed between
the Facility Agent (acting on the instructions of the Majority Lenders)
and the Parent Guarantor.
"REPORTABLE EVENT" means any of the events set forth in Section 4043(b)
of ERISA or the regulations thereunder other than those for which the
notice provision has been waived pursuant to the regulations thereunder.
"RESERVATIONS" means the principle that equitable remedies are remedies
which may be granted or refused at the discretion of the court, the
limitation of enforcement by laws relating to bankruptcy, insolvency,
liquidation, reorganisation, court schemes, moratoria, administration and
other laws generally affecting the rights of creditors, the time barring
of claims, the possibility that an undertaking to assume liability for or
to indemnify against non-payment of stamp duty may be void, defences of
set-off or counterclaim and similar principles.
"SALE" means a Disposal of all or substantially all of the business and
assets of the Group.
"SECURITY DOCUMENTS" means:
(a) any Group Guarantee executed by a Group Company;
(b) any Guarantee and Debenture executed by a Group Company;
(c) any Share Charge executed by a Group Company;
(d) any Asset Security Document executed by a Group Company;
(e) the Intercreditor Agreement;
(f) the Subordination Agreement;
(g) any Trade Xxxx Charge executed by a Group Company;
-17-
(h) the Keyman Insurance Assignment; and;
(i) any guarantee and any document creating security executed and
delivered after the date of this Agreement as security for any of
the obligations and liabilities of Swiss Newco or the other Group
Companies under any Financing Document.
"SECURITY PERIOD" means the period starting on the date of this Agreement
and ending on the date on which all of the obligations and liabilities of
the Group Companies under each Financing Document are discharged in full
and none of the Finance Parties has any continuing obligation in relation
to the Facility.
"SECURITY TRUSTEE" means The Royal Bank of Scotland plc in its capacity
as security trustee appointed under the Intercreditor Agreement and each
of its successors in such capacity.
"SENIOR BANKS" means the Banks as defined in the Senior Credit Agreement.
"SENIOR CREDIT AGREEMENT" means the senior credit agreement made or to be
made between the Parent Guarantor, Swiss Newco, certain banks, The Royal
Bank of Scotland plc as lead arranger, facility agent, issuing bank and
The Royal Bank of Scotland plc as the overdraft bank.
"SENIOR FACILITIES" means the Facilities as defined in the Senior Credit
Agreement.
"SENIOR TERM LOANS" means the Term Loans as defined in the Senior Credit
Agreement.
"SHARE CHARGE" means any share charge or share pledge, in each case in
the agreed form, executed or to be executed in favour of the Finance
Parties represented by the Security Trustee over all or substantially all
of the issued share capital of any Group Company.
"STERLING" and "(POUND)" means the law currency for the time being in
England.
"STOCK PURCHASE AGREEMENT" means the instrument dated 14 December 2001
pursuant to which the Preferred Stock is, or is to be, constituted.
"SUBORDINATION AGREEMENT" means the subordination agreement made or to be
made between (1) the Parent Guarantor, (2) the Bridge Note Holders, and
(3) the Security Trustee.
"SUBSIDIARY" means a company, partnership or stock corporation:
(a) in respect of which another company, partnership or stock
corporation holds (whether directly or indirectly) more than 50
per cent. of the voting rights in it; or
(b) in respect of which another company, partnership or stock
corporation is a member of it and either (i) has the right to
appoint or remove a majority of its board of directors or (ii)
controls alone, pursuant to an agreement with other
-18-
shareholders, members, holders of partnership interests or
stockholders, more than 50 per cent. of the voting rights in it;
or
(c) which is a subsidiary of a company, partnership or stock
corporation which is itself a subsidiary of that other company,
partnership or stock corporation
"SURPLUS CASH" means, in relation to any Financial Year of the Parent
Guarantor, the amount by which Cashflow for that Financial Year exceeds
the aggregate of (a) Total Funding Costs for that Financial Year and (b)
all voluntary prepayments of the Senior Term Loans and the Loan made in
that Financial Year.
"SYNDICATION PERIOD" means the period starting on the date of this
Agreement and ending on the earlier of (a) the date falling six months
after the date of Completion and (b) the date on which the Facility Agent
notifies the Parent Guarantor that the primary syndication of the
Facility has been completed.
"TARGET A" means Unipath Limited a company incorporated under the laws of
England and Wales with registered number 00417198.
"TARGET B" means Unipath Diagnostics GmbH, a company incorporated under
the laws of Germany with registered number HRB 29 443 AG Koln.
"TARGET C" means Unipath Scandinavia A.B., a company incorporated under
the laws of Sweden with registered number 556052-1410.
"TARGET D" means Unipath B.V., a company incorporated under the laws of
The Netherlands with registered number 30142693.
"TARGET" means the Trans-European Real-Time Gross Settlement Express
Transfer payment system.
"TARGET ASSETS" means the US Business Assets and the IP Assets (as such
terms are defined in the Acquisition Agreement) situated in the United
States of America.
"TARGET DAY" means any date on which TARGET is open for the settlement of
payments in Euro.
"TARGET GROUP" means Target A, Target B, Target C, Target D and each of
their Subsidiaries.
"TARGET SHARES" means all of the issued share capital of Target A, Target
B, Target C and Target D.
"TAXES" includes all present and future taxes, charges, imposts, duties,
levies, deductions, withholdings or fees of any kind whatsoever, or any
amount payable on account of or as security for any of the foregoing, by
whomsoever on whomsoever and wherever imposed, levied, collected,
withheld or assessed, together with any penalties, additions, fines,
surcharges or interest relating thereto; and "TAX" and "TAXATION" shall
be construed accordingly.
-19-
"TAX LETTER" means the structuring letter prepared by Ernst & Young dated
28 November 2001 entitled "Establishing a Swiss IP Holding Company"
relating to the Group.
"TERMINATION EVENT" means:
(a) a Reportable Event or an event described in section 4062(e) of
ERISA;
(b) the withdrawal of any US Group Company or any of its ERISA
Affiliates from a Multiple Employer Plan during a plan year in
which it was a "substantial employer" as defined in section
4001(a)(2) of ERISA, or the incurrence of liability by any US
Group Company under section 4064 of ERISA upon termination of a
Multiple Employer Plan;
(c) the filing of a notice of intent to terminate a Defined Benefit
Plan (including any such notice with respect to a Defined Benefit
Plan amendment referred to in section 4041(e) of ERISA) or the
termination of a Defined Benefit Plan excluding, for the purposes
of this paragraph (c), any standard termination under section
4041(b) of ERISA;
(d) the institution of proceedings to terminate a Defined Benefit
Plan by the PBGC;
(e) the appointment of a trustee to administer any Defined Benefit
Plan under section 4042 of ERISA;
(f) any event or condition that might reasonably constitute grounds
under section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Defined Benefit Plan;
or
(g) any withdrawal from a Multiemployer Plan, or the termination,
reorganisation or insolvency of a Multiemployer Plan.
"TOTAL COMMITMENTS" means the aggregate of the Commitments of the
Lenders.
"TOTAL DEBT" means the aggregate of:
(a) that part of the Indebtedness of Group Companies which relates to
obligations for the payment or repayment of money in respect of
principal incurred in respect of (i) moneys borrowed or raised,
(ii) any bond, note, loan stock, debenture or similar instrument,
or (iii) any acceptance credit, xxxx discounting (to the extent
that there is recourse to a Group Company), note purchase,
factoring (to the extent that there is recourse to a Group
Company) or documentary credit facility (including, for the
avoidance of doubt, any indebtedness under this Agreement); and
(b) Finance Lease Expenditure under any Finance Lease entered into by
any Group Company,
but excluding all Indebtedness under the Bridge Notes or, as the case may
be, the New Equity.
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"TOTAL FUNDING COSTS" means, in relation to any period, the aggregate of:
(a) Total Net Interest Costs for that period;
(b) all scheduled repayments of the Senior Term Loans falling due
during that period; and
(c) Finance Lease Expenditure under any Finance Lease entered into by
any Group Company.
"TOTAL NET INTEREST COSTS" means, in relation to any period, the
aggregate of all accrued interest, commissions, periodic fees and other
financing charges payable in cash by the Group Companies (other than to
another Group Company) in respect of Indebtedness during that period
(including the interest element payable under any Finance Lease) less any
interest receivable in respect of cash balances, less any sums receivable
or plus any sums payable by the Swiss Newco under any interest rate
protection agreement of whatever description during that period, and for
the avoidance of doubt excluding (a) any fees and commission paid in
relation to the acquisition of the Target Shares and the Target Assets
and (b) any amortisation of finance costs and issue costs arising from
the acquisition of the Target Shares and the Target Assets.
"TRADE XXXX CHARGE" means a trade xxxx charge in the agreed form executed
or to be executed in favour of the Security Trustee.
"TRANSACTION DOCUMENTS" means, in relation to a Group Company, each of
the following documents to which it is a party: the Financing Documents,
the Acquisition Documents, the Senior Credit Agreement, the Warrant
Instrument, the Bridge Note Agreement and the Stock Purchase Agreement.
"TRANSFER CERTIFICATE" means a document substantially in the form set out
in Schedule 6 (FORM OF TRANSFER CERTIFICATE).
"TREATY" means the Treaty establishing the European Community signed in
Rome on 25 March 1957, as amended from time to time.
"UBS CHARGE" means the charge dated 30 August 1995 granted by CDIL in
favour of USB 93 Technology Inc.
"US GROUP COMPANY" means a Group Company incorporated in the State of
Delaware, United States of America.
"VAT" means value added tax as provided for in the Value Added Tax Xxx
0000 and legislation (or purported legislation and whether delegated or
otherwise) supplemental to that Act or in any primary or secondary
legislation promulgated by the European Community or any official body or
agency of the European Community, and any tax similar or equivalent to
value added tax imposed by any country other than the United Kingdom and
any similar or turnover Tax replacing or introduced in addition to any of
the same.
"VENDOR" means Unilever PLC or, as appropriate, any of its Subsidiaries
or associated entities.
-21-
"WARRANT INSTRUMENT" means the warrant instrument in the agreed form.
"WELFARE PLAN" means any employee welfare benefit plan as defined in
section 3(1) of ERISA, in which any personnel of any U.S. Group Company
or any ERISA Affiliate participates or from which any such personnel may
derive a benefit or with respect to which any U.S. Group Company or ERISA
Affiliate has any liability or obligation.
1.2 HEADINGS
The headings in this Agreement are for convenience only and shall be
ignored in construing this Agreement.
1.3 INTERPRETATION
In this Agreement (unless otherwise provided):
1.3.1 words importing the singular shall include the plural and VICE
VERSA;
1.3.2 references to Clauses and Schedules are to be construed as
references to the clauses of, and schedules to, this Agreement;
1.3.3 references to any Financing Document or any other document shall
be construed as references to that Financing Document or that
other document, as amended, varied, novated or supplemented, as
the case may be;
1.3.4 references to any statute or statutory provision include any
statute or statutory provision which amends, extends,
consolidates or replaces the same, or which has been amended,
extended, consolidated or replaced by the same, and shall include
any orders, regulations, instruments or other subordinate
legislation made under the relevant statute;
1.3.5 references to a document being "IN THE AGREED FORM" means that
document the form and content of which has been approved by the
Facility Agent and the Parent Guarantor at the date hereof and
which is initialled by or on behalf of the Facility Agent and the
Parent Guarantor;
1.3.6 references to "ASSETS" shall include revenues and property and
the right to revenues and property and rights of every kind,
present, future and contingent and whether tangible or intangible
(including uncalled share capital);
1.3.7 the words "INCLUDING" and "IN PARTICULAR" shall be construed as
being by way of illustration or emphasis only and shall not be
construed as, nor shall they take effect as, limiting the
generality of any preceding words;
1.3.8 the words "OTHER" and "OTHERWISE" shall not be construed EJUSDEM
GENERIS with any foregoing words where a wider construction is
possible;
1.3.9 references to a "PERSON" shall be construed so as to include that
person's assigns, transferees or successors in title and shall be
construed as including references to an individual, firm,
partnership, joint venture, company, corporation, body corporate,
unincorporated body of persons or any state or any agency of a
state;
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1.3.10 where there is a reference in this Agreement to any amount, limit
or threshold specified in Dollars, in ascertaining whether or not
that amount, limit or threshold has been attained, broken or
achieved, as the case may be, a non- Dollar amount shall be
counted on the basis of the Dollar Equivalent of that amount
using the Facility Agent's relevant spot rate of exchange on the
date of determination;
1.3.11 accounting terms shall be construed so as to be consistent with
GAAP; and
1.3.12 references to time are to London time.
1.4 THIRD PARTY RIGHTS
A person who is not a Party has no right under the Contract (Rights of
Third Parties) Xxx 0000 to enforce any term of this Agreement.
2. FACILITY
2.1 FACILITY
Subject to the terms of this Agreement, the Lenders agree to make
available to Swiss Newco, the term loan facility in a maximum principal
amount of US$10,000,00 for drawing in Sterling in a maximum principal
amount of (pound)6,901,311.25 but which is to be converted to Dollars
pursuant to Clause 5.1 (DRAWDOWN OF FACILITY).
2.2 OBLIGATIONS SEVERAL
2.2.1 The obligations of each Finance Party under this Agreement are
several.
2.2.2 The failure of a Finance Party to carry out its obligations under
this Agreement shall not relieve any other Party of any of its
obligations under this Agreement.
2.2.3 None of the Finance Parties shall be responsible for the
obligations of any other Party under this Agreement.
2.3 RIGHTS SEVERAL
2.3.1 The rights of the Finance Parties under this Agreement are
several. All amounts due, and obligations owed, to each of them
are separate and independent debts or, as the case may be,
obligations.
2.3.2 Each Finance Party may, except as otherwise stated in this
Agreement, separately enforce its rights under this Agreement.
3. PURPOSE
3.1 PURPOSE OF THE FACILITY
The proceeds of the Facility shall only be used to pay:
3.1.1 the consideration payable to the Vendor for the Target Shares and
the Target Assets purchased by it pursuant to the Acquisition
Agreement;
3.1.2 any inter-company Indebtedness accrued and owing by any member of
the Target Group not exceeding US$75,000,000; and
3.1.3 the Acquisition Costs.
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3.2 UNDERTAKING BY SWISS NEWCO
Swiss Newco undertakes that it will only utilise the Facility as
permitted by this Clause 3.
3.3 NO LIABILITY
None of the Finance Parties shall be concerned as to the use or
application of the proceeds of the Advances.
4. CONDITIONS PRECEDENT
4.1 CONDITIONS PRECEDENT
4.1.1 Notwithstanding any other term of this Agreement, none of the
Finance Parties shall be under any obligation to make the
Facility available to Swiss Newco unless the Facility Agent has
notified the Parent Guarantor that all the conditions set out in
Part A of Schedule 2 (CONDITIONS PRECEDENT) have been satisfied
on or prior to the end of the Commitment Period.
4.1.2 The Parent Guarantor undertakes to ensure that all the conditions
set out in Part B of Schedule 2 (CONDITIONS SUBSEQUENT) are
satisfied within the time periods respectively specified therein.
4.2 CONFIRMATION OF SATISFACTION
The Facility Agent shall, at the request of the Parent Guarantor, certify
whether or not any one or more of the conditions set out in Parts A or B
of Schedule 2 (CONDITIONS PRECEDENT) have been satisfied or, as the case
may be, waived.
5. DRAWDOWN OF FACILITY
5.1 DRAWDOWN OF FACILITY
5.1.1 Subject to the other terms of this Agreement, the Facility shall
be drawn down in one Advance in Sterling of (pound)6,901,311.25
on the same Business Day during the Commitment Period when
requESTED by Swiss Newco by means of a Drawdown Notice in
accordance with Clause 5.3 (DRAWDOWN NOTICE). At close of
business on the last day of the Commitment Period, the Facility
shall cease to be available for utilisation and shall be
cancelled.
5.1.2 On the day of Completion, Swiss Newco shall enter into a spot
foreign exchange contract (an "EXCHANGE CONTRACT") with the
Facility Agent, under which the Facility Agent agrees to sell an
amount of Sterling equal to the outstanding Advance made
available to Swiss Newco under the Advance in exchange for the
amount (an "EXCHANGE AMOUNT") of Dollars that could be purchased
with the amount of Sterling using the Facility Agent's spot rate
of exchange for the purchase of Dollars with Sterling in the
London foreign exchange rate market at the time of the trade on
such day.
5.1.3 On the day (the "CONVERSION DAY") which is the second Business
Day after Completion, the Lenders shall make a substitute Advance
denominated in Dollars (a "REFINANCING ADVANCE"). The amount of
the Refinancing Advance shall be the Exchange Amount relating to
the Advance. The Facility Agent
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will, as soon as reasonably practicable, notify the Parent
Guarantor and each Lender of the Exchange Amount and the relevant
spot rate of exchange.
5.1.4 On the Conversion Day:
(a) the Refinancing Advance shall be made by the Lenders in
accordance with the provisions of Clause 5.5
(PARTICIPATIONS) and the proceeds thereof shall be paid to
the Facility Agent;
(b) the Facility Agent shall apply the proceeds of each
Refinancing Advance in settlement of amounts owed by it
under the Exchange Contract; and
(c) the Facility Agent shall pay the amounts it is to pay
under the Exchange Contract to the Lenders pro rata to
their Loan Commitments, to be applied in repayment of the
outstanding Sterling denominated Advance.
5.1.5 Each of the Parties authorises the Facility Agent to make the
applications referred to sub-clause 5.1.4 of this Clause.
5.2 CONDITIONS TO THE ADVANCE
The obligation of each Lender to make available its Participation in the
Advance is subject to the conditions that on the date on which the
relevant Drawdown Notice is given and on the relevant Drawdown Date:
5.2.1 the representations and warranties in Clause 11 (REPRESENTATIONS
AND WARRANTIES) to be repeated on those dates are correct and
will be correct immediately after the Advance is made; and
5.2.2 no Default or Potential Default has occurred and is continuing or
would occur on the making of the Advance.
5.3 DRAWDOWN NOTICE
5.3.1 Whenever Swiss Newco wishes to draw down the Advance, it shall
give a duly completed Drawdown Notice to the Facility Agent to be
received not later than 11.00 a.m. on the third Business Day
before the relevant Drawdown Date (or, if the Advance is to be
denominated in Sterling, not later than 11.00 a.m. of the second
Business Day before that Drawdown Date or such later time and
date as the Facility Agent may agree).
5.3.2 A Drawdown Notice shall be irrevocable and Swiss Newco shall be
obliged to borrow in accordance with its terms.
5.4 NOTIFICATION TO LENDERS
The Facility Agent shall promptly notify each Lender of the details of
each Drawdown Notice received by it.
5.5 PARTICIPATIONS
5.5.1 Subject to the terms of this Agreement, each Lender acting
through its Lending Office shall make available to the Facility
Agent on the Drawdown Date for the Advance an amount equal to its
Participation in the amount specified in the Drawdown Notice for
that Advance.
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5.5.2 For the purposes of sub-clause 5.5.1 the Participation of a
Lender in the Advance shall be the proportion of the Advance
equal to the proportion borne by that Lender's Commitment to the
Total Commitments.
6. INTEREST
6.1 INTEREST RATE
6.1.1 Interest shall accrue on the Advance from and including the
relevant Drawdown Date to but excluding the date the Advance is
repaid at the rate determined by the Facility Agent to be the
aggregate of:
(a) the Cash Margin;
(b) LIBOR; and
(c) the Additional Cost Rate.
6.1.2 In addition to interest accrued under sub-clause 6.1.1, interest
shall accrue on the Advance at the rate of the Accrued Margin.
6.1.3 On each Interest Date, all interest accrued under sub-clause
6.1.2 will be added to the principal amount of the Advance unless
the Majority Senior Banks agree that such interest may be paid in
cash when due on the relevant Interest Date.
6.2 INTEREST PERIODS
6.2.1 Interest payable on the Advance shall be calculated by reference
to Interest Periods of 6 months' duration (or such other Interest
Period as the Facility Agent, acting on the instructions of all
the Lenders, may allow) as selected by Swiss Newco in accordance
with this Clause 6.2 PROVIDED THAT (1) during the Syndication
Period Swiss Newco shall only select an Interest Period of 1
month's duration or such other agreed period as to assist the
syndication process and (2) the first Interest Period for the
Advance made on the Drawdown Date shall be 2 Business Days.
6.2.2 Swiss Newco may select an Interest Period for the Advance in
either the Drawdown Notice (in the case of the first Interest
Period for the Advance) or (in the case of any subsequent
Interest Period for the Advance) by notice received by the
Facility Agent no later than 3 Business Days before the
commencement of that Interest Period.
6.2.3 Interest shall be calculated by reference to successive Interest
Periods. The first Interest Period for the Advance shall begin on
the Drawdown Date. Each succeeding Interest Period shall begin on
the Interest Date of the previous Interest Period.
6.2.4 If an Interest Period would otherwise end on a day which is not a
Business Day, that Interest Period shall instead end on the next
Business Day in the same calendar month (if there is one) or the
preceding Business Day (if there is not).
6.2.5 If an Interest Period begins on the last Business Day in a
calendar month or on a Business Day for which there is no
numerically corresponding day in the
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calendar month in which that Interest Period is to end, it shall
end on the last Business Day in that later calendar month.
6.2.6 If an Interest Period would otherwise extend beyond the Final
Repayment Date, it shall be shortened so that it ends on the
Final Repayment Date.
6.3 DEFAULT INTEREST
6.3.1 If Swiss Newco fails to pay any amount payable under any
Financing Document on the due date, it shall pay default interest
on the overdue amount from the due date to the date of actual
payment calculated by reference to successive Interest Periods
(each of such duration as the Facility Agent may select and the
first beginning on the relevant due date) at the rate per annum
being the aggregate of (a) 2.00 per cent. per annum, (b) the Cash
Margin, (c) LIBOR and (d) the Additional Cost Rate.
6.3.2 So long as the overdue amount remains unpaid, the default
interest rate shall be recalculated in accordance with the
provisions of this Clause 6.3 on the last day of each such
Interest Period and any unpaid interest shall be compounded at
the end of each Interest Period.
6.4 CALCULATION AND PAYMENT OF INTEREST
6.4.1 At the beginning of each Interest Period, the Facility Agent
shall notify the Lenders and Swiss Newco of the duration of the
Interest Period and the rate and amount of interest payable for
the Interest Period (but in the case of any default interest
calculated under Clause 6.3 (DEFAULT INTEREST), any such
notification need not be made more frequently than weekly). Each
notification shall set out in reasonable detail the basis of
computation of the amount of interest payable.
6.4.2 Interest due from Swiss Newco under this Agreement shall:
(a) accrue from day to day at the rate calculated under this
Clause 6 (INTEREST);
(b) except as otherwise provided in this Agreement, be paid by
Swiss Newco to the Facility Agent (for the account of the
Lenders or the Facility Agent, as the case may be) in
arrear on the last day of each Interest Period, PROVIDED
THAT for any Interest Period which is for longer than 6
months, Swiss Newco shall also pay interest 6 monthly in
arrear during that Interest Period;
(c) be calculated on the basis of the actual number of days
elapsed and a 360 day year or, if different, such number
of days as is market practice for the relevant currency;
and
(d) be payable both before and after judgment.
6.5 FACILITY AGENT'S DETERMINATION
The determination by the Facility Agent of any interest payable under
this Clause 6 (INTEREST) shall be conclusive and binding on Swiss Newco
except for any manifest error.
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7. REPAYMENT, PREPAYMENT AND CANCELLATION
7.1 REPAYMENT OF LOAN
Swiss Newco shall repay the Loan by payment to the Facility Agent (for
the account of the Lenders) on each date set out in Column 1 below (each
date being an "INSTALMENT REPAYMENT DATE") of such amounts (each an
"INSTALMENT") as is equal to the percentage of the Refinancing Advance
(as defined in sub-clause 5.1.3 of Clause 5.1 (DRAWDOWN OF FACILITY))
under the Facility as is set out in Column 2 below opposite the relevant
Instalment Repayment Date (so that the Loan is repaid in full on or
before the Final Repayment Date):
COLUMN 1 COLUMN 2
Instalment Percentage (%)
Repayment Date
30 June 2010 50
31 December 2010 50
7.2 MANDATORY PREPAYMENT OF DISPOSAL PROCEEDS
If the Senior Facilities have been discharged in full, the Parent
Guarantor shall procure that the Disposal Proceeds of any Disposal (other
than those set out in sub-clauses 12.3.2(a) to 12.3.2(g) of Clause 12.3
(NEGATIVE UNDERTAKINGS)) made by a Group Company are applied in permanent
reduction of the Facility in accordance with Clause 7.7 (APPLICATION OF
PREPAYMENTS).
7.3 MANDATORY PREPAYMENT OF SURPLUS CASH
If the Senior Facilities have been discharged in full, the Parent
Guarantor shall procure that, on or before the day that falls 14 days
after the day that the Facility Agent receives the Accounts of each
Financial Year of the Parent Guarantor beginning after 31 December 2001,
an amount equal to 50 per cent. of the amount by which Surplus Cash for
that Financial Year exceeds US$3,000,000 shall be applied in permanent
reduction of the Facility in accordance with Clause 7.7 (APPLICATION OF
PREPAYMENTS).
7.4 MANDATORY PREPAYMENT OF INSURANCE PROCEEDS
If the Senior Facilities have been discharged in full, the Parent
Guarantor shall procure that (a) an amount equal to any Insurance
Proceeds which are in aggregate in excess of US$100,000 in any Financial
Year of the Parent Guarantor received by the Group shall, to the extent
the same are not applied in reinstatement of the asset or payment of a
third party liability in respect of which they were received within 6
months of being received, be applied in permanent reduction of the
Facility in accordance with Clause 7.7 (APPLICATION OF PREPAYMENTS) and
(b) pending any such reinstatement or payment, such Insurance Proceeds
are credited to a bank account held with the Facility Agent (which at the
request of the Facility Agent shall be charged to the Security Trustee on
terms reasonably satisfactory to the Security Trustee).
7.5 MANDATORY PREPAYMENT OF VENDOR PAYMENTS
7.5.1 Subject to sub-clause 7.5.2, if the Senior Facilities have been
discharged in full, the Parent Guarantor shall procure that an
amount equal to each amount (each a "VENDOR PAYMENT") received by
a Group Company from the Vendor under the
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Acquisition Agreement net of any reasonable costs and expenses of
recovery and any Tax payable by a Group Company in respect of
such Vendor Payment shall be applied in permanent reduction of
the Facility in accordance with Clause 7.7 (APPLICATION OF
PREPAYMENTS).
7.5.2 In respect of a Vendor Payment, the Parent Guarantor shall not be
required to make the prepayment under sub-clause 7.5.1 where the
Vendor Payment is applied within 12 months of its receipt by a
Group Company to make good or purchase an asset to replace
directly the asset, or to pay the liabilities in respect of which
the Vendor Payment was received (including, for the avoidance of
doubt, tax liability, environmental liability and litigation) or
to compensate the relevant Group Company for a cash loss and
where pending such application, such Vendor Payment is credited
to a bank account held with the Facility Agent (which at the
request of the Facility Agent shall be charged to the Security
Trustee on terms reasonably satisfactory to the Security
Trustee).
7.6 MANDATORY PREPAYMENT ON SALE OR CHANGE OF CONTROL
7.6.1 Notwithstanding the other provisions of this Clause 7:
(A) in the case of the occurrence of a Sale or a situation in
accordance with sub-clause (iii) of the definition "Change
of Control", on such date; or
(B) in the case of the occurrence of a situation in accordance
with sub-clause (i) or (ii) of the definition "Change of
Control", the date falling 30 days after such occurrence
or, in the case of cessation by virtue of death or
disability, the date falling 60 days after such occurrence
unless in the case of (i) and (ii) of the definition of
"Change of Control" the Majority Lenders agree otherwise;
(i) the Loan shall be repaid in full; and
(ii) the Lenders' obligations under this Agreement shall be
terminated and each Lender's Commitments shall be
cancelled.
7.6.2 The Parent Guarantor shall, to the extent it is able to do so,
give at least 30 days' prior notice to the Facility Agent of the
date upon which a Sale or Change of Control is proposed to occur.
7.7 APPLICATION OF PREPAYMENTS
7.7.1 Any amount to be applied in permanent reduction of the Facility.
7.7.2 Any amount to be applied in prepayment in accordance with
sub-clause 7.7.1 shall, unless the Parent Guarantor requests the
same to be so applied at an earlier date, be so applied on the
immediately succeeding Interest Dates relating to the Facility.
Pending any such prepayment, the relevant amount shall be
credited to an interest bearing bank account (a "PROCEEDS
ACCOUNT") held with the Facility Agent which, at the request of
the Facility Agent shall be charged to the Security Trustee on
terms satisfactory to the Security Trustee). The Facility Agent
is hereby authorised to apply amounts standing to the credit of a
Proceeds Account in making the relevant prepayments on the
relevant Interest Dates.
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7.8 VOLUNTARY PREPAYMENT OF TERM LOANS
7.8.1 The Parent Guarantor may, if the Senior Facilities have been
discharged in full, by giving the Facility Agent not less than 10
Business Days' prior notice, prepay the whole or part (but if in
part, in a minimum amount of US$500,000 and an integral multiple
of US$250,000) of the Advance on an Interest Date.
7.8.2 Any notice of prepayment shall be irrevocable, shall specify the
date on which the prepayment is to be made and the amount of the
prepayment, and shall oblige the Parent Guarantor to make that
prepayment. The Facility Agent shall promptly notify the Lenders
of receipt of any such notice.
7.8.3 Any prepayment under this Agreement shall be made together with
accrued interest on the amount prepaid and, subject to any
amounts payable under Clause 22.1 (BREAKAGE COSTS INDEMNITY),
without premium or penalty.
7.9 NO RE-BORROWING OF TERM LOANS
Any amount repaid or prepaid may not be re-borrowed and shall reduce
rateably each Lender's Commitment.
8. CHANGES IN CIRCUMSTANCES
8.1 ILLEGALITY
8.1.1 If it is or becomes illegal for a Lender to maintain all or part
of its Commitment or to continue to make available or fund or
maintain its Participation in all or any part of the Facility,
then:
(a) that Lender shall notify the Facility Agent and the Parent
Guarantor; and
(b)
(i) the Commitment of that Lender shall be cancelled
immediately; and
(ii) Swiss Newco shall prepay to the Facility Agent (for
the account of that Lender) that Lender's
Participation in the Advance (together with accrued
interest on the amount prepaid and all other
amounts owing to that Lender under this Agreement)
within 5 Business Days of demand by that Lender
(or, if longer and if permitted by the relevant
law, on the last day prior to such illegality
taking effect).
8.2 INCREASED COSTS
8.2.1 If, after the date of this Agreement, a Change occurs which
causes an Increased Cost (as defined in sub-clause 8.2.3) to a
Lender (or any company of which that Lender is a Subsidiary) then
Swiss Newco shall pay (as additional interest) to the Facility
Agent (for the account of that Lender) within 5 Business Days of
demand all amounts which that Lender certifies to be necessary to
compensate that Lender (or any company of which that Lender is a
Subsidiary) for the Increased Cost.
8.2.2 Any demand made under sub-clause 8.2.1 shall be made by the
relevant Lender through the Facility Agent and shall set out in
reasonable detail so far as is practicable the basis of
computation of the Increased Cost.
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8.2.3 In this Clause 8.2:
"INCREASED COST" means any cost to, or reduction in the amount
payable to, or reduction in the return on capital or regulatory
capital achieved by, a Lender (or any company of which that
Lender is a Subsidiary) to the extent that it arises, directly or
indirectly, as a result of the Change and is attributable to the
Commitment of that Lender or its Participation in the Facility or
the funding of that Lender's Participation in the Advance
including:
(a) any Tax Liability (other than Tax on Overall Net Income)
incurred by that Lender;
(b) any changes (other than changes made voluntarily by that
Lender) in the basis or timing of Taxation of that Lender
in relation to its Commitment or Participation in the
Facility or to the funding of that Lender's Participation
in the Advance;
(c) the cost to that Lender (or any company of which that
Lender is a Subsidiary) of complying with, or the
reduction in the amount payable to or reduction in the
return on capital or regulatory capital achieved by that
Lender (or any company of which that Lender is a
Subsidiary) as a result of complying with, any capital
adequacy or similar requirements howsoever arising,
including as a result of an increase in the amount of
capital to be allocated to the Facility or of a change to
the weighting of that Lender's Commitment or Participation
in the Facility;
(d) the cost to that Lender of complying with any reserve,
cash ratio, special deposit or liquidity requirements (or
any other similar requirements); and
(e) the amount of any fees payable by that Lender to any
supervisory or regulatory authority.
"TAX LIABILITY" means, in respect of any person:
(a) any liability or any increase in the liability of that
person to make any payment of or in respect of Tax;
(b) the loss of any relief, allowance, deduction or credit in
respect of Tax which would otherwise have been available
to that person;
(c) the setting off against income, profits or gains or
against any Tax liability of any relief, allowance,
deduction or credit in respect of Tax which would
otherwise have been available to that person; and
(d) the loss or setting off against any Tax liability of a
right to repayment of Tax which would otherwise have been
available to that person.
For the purposes of this definition of "Tax Liability", any
question of whether or not any relief, allowance, deduction,
credit or right to repayment of Tax has been lost or set off, and
if so, the date on which that loss or set-off took place, shall
be conclusively determined by the relevant person.
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"TAX ON OVERALL NET INCOME" means, in relation to a Lender, Tax
(other than Tax deducted or withheld from any payment) imposed on
the net profits of that Lender by the jurisdiction in which its
Lending Office or its head office is situated.
8.2.4 Swiss Newco shall not be obliged to make a payment in respect of
an Increased Cost under this Clause 8.2:
(a) if and to the extent that the Increased Cost has been
compensated for by the payment of the Additional Cost Rate
or the operation of Clause 9.9 (GROSSING-UP);
(b) if and to the extent that the Increased Cost is the result
of the negligence or wilful default of the relevant Lender
in complying with any law or regulation;
(c) if and to the extent that the Increased Cost arises as a
direct result of a failure by the relevant Lender to file
any relevant tax form or to provide any statements which
have been reasonably requested by the relevant authorities
within a reasonable time following a Change and which is
within the control of such Lender to file or provide, as
the case may be; or
(d) if and to the extent that the Increased Cost is
compensated for under any other provision of this
Agreement.
8.2.5 If Swiss Newco is required to pay any amount to a Lender under
this Clause 8.2, then, without prejudice to that obligation and
so long as the circumstances giving rise to the relevant
Increased Cost are continuing and subject to the Parent Guarantor
giving the Facility Agent and that Lender not less than 5
Business Days' prior notice (which shall be irrevocable), Swiss
Newco may prepay all, but not part, of that Lender's
Participation in the Advance together with accrued interest on
the amount prepaid and shall charge such account in favour of the
Facility Agent on terms reasonably satisfactory to the Facility
Agent. Any such prepayment shall be subject to Clause 22.1
(BREAKAGE COSTS INDEMNITY). On any such prepayment the Commitment
of the relevant Lender shall be automatically cancelled.
8.3 MARKET DISRUPTION
8.3.1 If, in relation to a particular Interest Period:
(a) the Facility Agent determines that, because of
circumstances affecting the London interbank market
generally, reasonable and adequate means do not exist for
ascertaining LIBOR for the Advance for that Interest
Period; or
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(b) the Facility Agent has been notified by a group of Lenders
whose Commitments exceed 33 per cent. of the Total
Commitments that in their opinion:
(i) matching deposits may not be available to them in
the London interbank market in the ordinary course
of business to fund their Participations in the
Advance for that Interest Period; or
(ii) the cost to them of obtaining matching deposits in
the London interbank market would be in excess of
LIBOR for that Interest Period,
the Facility Agent shall promptly notify the Parent Guarantor and
the Lenders of that event (such notice being a "MARKET DISRUPTION
NOTICE").
8.3.2 If a Market Disruption Notice applies, then:
(a) the Facility Agent and the Parent Guarantor shall
immediately enter into negotiations for a period of not
more that 30 days with a view to agreeing a substitute
basis for calculating the rate of interest for the Advance
or for funding the Advance;
(b) any substitute basis agreed under sub-clause 8.3.2(a) by
the Facility Agent (with the consent of all the Lenders)
and the Parent Guarantor shall take effect in accordance
with its terms and be binding on all the Parties;
(c) if no substitute basis is agreed under sub-clause
8.3.2(a), then, subject to sub-clause 8.4, each Lender
shall (through the Facility Agent) certify before the last
day of the Interest Period to which the Market Disruption
Notice relates a substitute basis for maintaining its
Participation in the Advance which shall reflect the cost
to the Lender of funding its Participation in the Advance
from whatever sources it reasonably selects plus the Cash
Margin and (if applicable) Additional Cost Rate; and
(d) each substitute basis so certified shall be binding on
Swiss Newco and the certifying Lender and treated as part
of this Agreement.
8.4 If no substitute basis is agreed under sub-clause 8.3.2(a), then, so long
as the circumstances giving rise to the Market Disruption Notice continue
and subject to the Parent Guarantor giving the Facility Agent and the
Lenders not less than 5 Business Days' prior notice (which shall be
irrevocable), Swiss Newco may prepay the Advance to which the Market
Disruption Notice applies together with accrued interest on the amount
prepaid. Any such prepayment shall be subject to Clause 22.1 (BREAKAGE
COSTS INDEMNITY).
8.5 MITIGATION
8.5.1 If any circumstances arise in respect of any Lender which would,
or upon the giving of notice would, result in the operation of
Clause 8.1 (ILLEGALITY), 8.2 (INCREASED COSTS), 8.3 (MARKET
DISRUPTION) or 9.9 (GROSSING-UP) to the detriment of Swiss Newco,
then that Lender shall:
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(a) promptly upon becoming aware of those circumstances and
their results, notify the Facility Agent and the Parent
Guarantor; and
(b) in consultation with the Facility Agent and the Parent
Guarantor, take all such steps as are reasonably open to
it to mitigate the effects of those circumstances
(including changing its Lending Office or consulting with
the Parent Guarantor with a view to transferring some or
all of its rights and obligations under this Agreement to
another bank or other financial institution acceptable to
the Parent Guarantor) in a manner which will avoid the
circumstances in question and on terms acceptable to the
Facility Agent, the Parent Guarantor and that Lender,
PROVIDED THAT no Lender shall be obliged to take any steps which
in its opinion would or might have an adverse effect on its
business or financial condition or the management of its Tax
affairs or cause it to incur any material costs or expenses
except to the extent that such Lender is indemnified and secured
for such costs and expenses to its reasonable satisfaction.
8.5.2 Nothing in this Clause 8.5 shall limit, reduce, affect or
otherwise qualify the rights of any Lender or the obligations of
Swiss Newco under Clause 8.1 (ILLEGALITY), 8.2 (INCREASED COSTS),
8.3 (MARKET DISRUPTION) or 9.9 (GROSSING-UP).
8.6 CERTIFICATES
The certificate or notification of the Facility Agent or, as the case may
be, the relevant Lender as to any of the matters referred to in this
Clause 8 shall be in reasonable detail and shall be conclusive and
binding on Swiss Newco except for any manifest error.
9. PAYMENTS
9.1 PLACE AND TIME
All payments by Swiss Newco or a Lender under this Agreement shall be
made to the Facility Agent to its account at such office or bank at such
time as the Facility Agent may notify Swiss Newco or the Lenders for this
purpose.
9.2 FUNDS
All payments to the Facility Agent under this Agreement shall be made for
value on the due date in freely transferable and readily available funds.
9.3 DISTRIBUTION
9.3.1 Each payment received by the Facility Agent under this Agreement
for another Party shall, subject to sub-clauses 9.3.2 and 9.3.3,
be made available by the Facility Agent to that Party by payment
(on the date and in the currency and funds of receipt) to its
account with such office or bank in the principal financial
centre of the country of the relevant currency (or, in the case
of euros, such financial centre in the Participating Member
States as the Facility Agent shall reasonably specify) as it may
notify to the Facility Agent for this purpose by not less than 5
Business Days' prior notice.
9.3.2 The Facility Agent may apply any amount received by it for Swiss
Newco in or towards payment (on the date and in the currency and
funds of receipt) of any
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amount due from Swiss Newco under this Agreement or in or towards
the purchase of any amount of any currency to be so applied.
9.3.3 Where a sum is to be paid to the Facility Agent under this
Agreement for another Party, the Facility Agent is not obliged to
pay that sum to that Party until it has established that it has
actually received that sum. The Facility Agent may, however,
assume that the sum has been paid to it in accordance with this
Agreement, and, in reliance on that assumption, make available to
that Party a corresponding amount. If the sum has not been made
available but the Facility Agent has paid a corresponding amount
to another Party, that Party shall immediately on demand by the
Facility Agent refund the corresponding amount together with
interest on that amount from the date of payment to the date of
receipt, calculated at a rate determined by the Facility Agent to
reflect its cost of funds.
9.3.4 Notwithstanding the provisions of this Clause 9.3, the Facility
Agent shall not be liable to Swiss Newco or any Lender for the
failure, or the consequences of any failure, of any euro
cross-border payment system to effect same-day settlement to an
account of Swiss Newco or any Lender.
9.4 BUSINESS DAYS
If a payment under this Agreement is due on a day which is not a Business
Day, the due date for that payment shall instead be the next Business Day
in the same calendar month (if there is one) or the preceding Business
Day (if there is not).
9.5 CURRENCY
In this Agreement, subject to any EMU Legislation:
9.5.1 all payments by Swiss Newco in respect of the Advance, whether of
interest or principal, shall be made in the currency (or the
denomination of the currency) in which that Advance is
denominated;
9.5.2 all payments relating to costs, losses, expenses or Taxes shall
be made in the currency in which the relevant costs, losses,
expenses or Taxes were incurred; and
9.5.3 any other amount payable under this Agreement shall, except as
otherwise provided, be made in Dollars.
9.6 ACCOUNTS AS EVIDENCE
Each Lender shall maintain in accordance with its usual practice an
account which shall, as between Swiss Newco and that Lender, be prima
facie evidence of the amounts from time to time advanced by, owing to,
paid and repaid to that Lender under this Agreement.
9.7 PARTIAL PAYMENTS
9.7.1 If the Facility Agent receives a payment insufficient to
discharge all the amounts then due and payable by Swiss Newco
under this Agreement, the Facility Agent shall apply that payment
towards the obligations of Swiss Newco in the following order:
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(a) first, in or towards payment of any unpaid costs and
expenses of the Facility Agent under this Agreement;
(b) second, in or towards payment PRO RATA of any accrued
interest due by Swiss Newco but unpaid under this
Agreement;
(c) third, in or towards payment PRO RATA of any principal due
by Swiss Newco but unpaid under this Agreement; and
(d) fourth, in or towards payment PRO RATA of any other sum
due by Swiss Newco but unpaid under the Financing
Documents.
9.7.2 The Facility Agent shall, if so directed by all the Lenders, vary
the order set out in sub-clauses 9.7.1(c) to 9.7.1(d).
9.7.3 Sub-clauses 9.7.1 and 9.7.2 shall override any appropriation made
by Swiss Newco.
9.8 SET-OFF AND COUNTERCLAIM
All payments by Swiss Newco under this Agreement shall be made without
set-off or counterclaim.
9.9 GROSSING-UP
9.9.1 Subject to sub-clause 9.9.2, all sums payable to any Finance
Party pursuant to or in connection with any Financing Document
shall be paid in full free and clear of all deductions or
withholdings whatsoever except only as may be required by law.
9.9.2 If any deduction or withholding is required by law in respect of
any payment due from Swiss Newco to any Finance Party pursuant to
or in connection with any Financing Document, Swiss Newco shall:
(a) ensure or procure that the deduction or withholding is
made and that it does not exceed the minimum legal
requirement therefor;
(b) pay, or procure the payment of, the full amount deducted
or withheld to the relevant Taxation or other authority in
accordance with the applicable law;
(c) (unless and to the extent the deduction or withholding
arises as a direct result of the negligence or wilful
default of the relevant Finance Party or the failure of
the relevant Finance Party to file any relevant tax form
or to provide any statements which have been reasonably
requested by the relevant tax authorities within a
reasonable time following a Change and which is within the
control of the relevant Finance Party to file or provide,
as the case may be) increase the payment in respect of
which the deduction or withholding is required so that the
net amount received by the payee (which expression when
used in this sub-clause 9.9.2 shall mean any Finance
Party) after the deduction or withholding (and after
taking account of any further deduction or withholding
which is required to be
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made as a consequence of the increase) shall be equal to
the amount which the payee would have been entitled to
receive in the absence of any requirement to make any
deduction or withholding; and
(d) promptly deliver or procure the delivery to the relative
payee of receipts evidencing each deduction or withholding
which has been made.
9.9.3 If the Facility Agent is obliged to make any deduction or
withholding from any payment to any Lender (an "AGENCY PAYMENT")
which represents an amount or amounts received by the Facility
Agent from Swiss Newco under any Financing Document, Swiss Newco
shall pay directly to that Lender such sum (an "AGENCY
COMPENSATING SUM") as shall, after taking into account any
deduction or withholding which Swiss Newco is obliged to make
from the Agency Compensating Sum, enable that Lender to receive,
on the due date for payment of the Agency Payment, an amount
equal to the Agency Payment which that Lender would have received
in the absence of any obligation to make any deduction or
withholding.
9.9.4 If any Lender determines, in its absolute discretion, that it has
received, realised, utilised and retained a Tax benefit by reason
of any deduction or withholding in respect of which Swiss Newco
has made an increased payment or paid an Agency Compensating Sum
under this Clause 9.9, that Lender shall, PROVIDED THAT the
Finance Parties have received all amounts which are then due and
payable by the obligors under any Financing Document, pay to
Swiss Newco (to the extent that that Lender can do so without
prejudicing the amount of the benefit or repayment and the right
of that Lender to obtain any other benefit, relief or allowance
which may be available to it) such amount, if any, as that
Lender, in its absolute discretion shall determine, will leave
that Lender in no worse position than it would have been in if
the deduction or withholding had not been required, PROVIDED
THAT:
(a) each Lender shall have an absolute discretion as to the
time at which and the order and manner in which it
realises or utilises any Tax benefit and shall not be
obliged to arrange its business or its Tax affairs in any
particular way in order to be eligible for any credit or
refund or similar benefit;
(b) no Lender shall be obliged to disclose any information
regarding its business, Tax affairs or Tax computations;
(c) if a Lender has made a payment to Swiss Newco pursuant to
this sub-clause 9.9.4 on account of any Tax benefit and it
subsequently transpires that that Lender did not receive
that Tax benefit, or received a lesser Tax benefit, Swiss
Newco shall, on demand, pay to that Lender such sum as
that Lender may determine as being necessary to restore
its after-tax position to that which it would have been
had no adjustment under this sub-clause 9.9.4 been made.
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9.9.5 No Lender shall be obliged to make any payment under sub-clause
9.9.4 if, by doing so, it would contravene the terms of any
applicable law or any notice, direction or requirement of any
governmental or regulatory authority (whether or not having the
force of law).
9.9.6 If Swiss Newco is required to make an increased payment for the
account of a Lender under sub-clause 9.9.2, then, without
prejudice to that obligation and so long as such requirement
exists and subject to the Parent Guarantor giving the Facility
Agent acting reasonably and that Lender not less than 10 days'
prior notice (which shall be irrevocable), Swiss Newco may prepay
all, but not part, of that Lender's Participation in the Advance
together with accrued interest on the amount prepaid and shall
charge such account in favour of the Facility Agent on terms
reasonably satisfactory to the Facility Agent. Any such
prepayment shall be subject to Clause 22.1 (BREAKAGE COSTS
INDEMNITY). On any such prepayment the Commitment of the relevant
Lender shall be automatically cancelled.
10. SECURITY
10.1 SECURITY DOCUMENTS
The obligations and liabilities of Swiss Newco to the Finance Parties
under the Financing Documents shall be secured by the interests and
rights granted in favour of the Security Trustee as trustee for itself,
the Facility Agent and the Lenders under the Security Documents.
10.2 RELEASE OF SECURITY ON DISPOSALS
In respect of any Disposal made by a Group Company which falls within
sub-clauses 12.3.2(a) to 12.3.2(h) of Clause 12.3 (NEGATIVE
UNDERTAKINGS), the Security Trustee shall (and is authorised by the
Finance Parties so to do) on the completion of that Disposal release, at
the cost and expense of the Parent Guarantor, from the Security
Documents, the assets which are the subject of that Disposal but, in
relation to a Disposal which falls within sub-clause 12.3.2(b) of Clause
12.3 (NEGATIVE UNDERTAKINGS), only if the Security Trustee is reasonably
satisfied that it will receive security over the asset purchased with the
Disposal Proceeds of the released asset equivalent to that which attached
to the released asset immediately prior to its release from the Security
Documents.
11. REPRESENTATIONS AND WARRANTIES
11.1 REPRESENTATIONS AND WARRANTIES
The Parent Guarantor represents and warrants to each Finance Party that:
11.1.1 STATUS: each Group Company is a limited company duly incorporated
under the laws of the jurisdiction of its incorporation, and it
possesses the capacity to xxx and be sued in its own name and has
the power to carry on its business and to own its property and
other assets;
11.1.2 POWERS AND AUTHORITY: each Group Company has power to execute,
deliver and perform its obligations under the Transaction
Documents and to carry out the transactions contemplated by those
documents and all necessary corporate,
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shareholder and other action has been or will be taken to
authorise the execution, delivery and performance of the same;
11.1.3 BINDING OBLIGATIONS: subject to the Reservations, the obligations
of each Group Company under the Transaction Documents constitute
its legal, valid, binding and enforceable obligations;
11.1.4 CONTRAVENTIONS: the execution, delivery and performance by each
Group Company of the Financing Documents does not:
(a) contravene any applicable law or regulation or any order
of any governmental or other official authority, body or
agency or any judgment, order or decree of any court
having jurisdiction over it;
(b) (other than, in respect of any member of the Target Group,
by reason of the breach of any change of control provision
occurring as a result of the Acquisition) conflict with,
or result in any breach of any of the terms of, or
constitute a default under, any agreement or other
instrument to which it is a party or any licence or other
authorisation to which it is subject or by which it or any
of its property is bound in such a manner or to such an
extent as could reasonably be expected to have a Material
Adverse Effect; or
(c) contravene or conflict with the provisions of its
constitutional documents;
11.1.5 INSOLVENCY: save as disclosed to the Facility Agent in writing
before the date of this Agreement or as disclosed in the
Disclosure Letter, no Group Company has taken any action nor have
any steps been taken or legal proceedings been started or
threatened against it for winding-up, dissolution or
re-organisation, the enforcement of any Encumbrance over its
assets or for the appointment of a receiver, administrative
receiver, or administrator, trustee or similar officer of it or
of any of its assets;
11.1.6 NO DEFAULT:
(a) no Event of Default is continuing or might reasonably be
expected to result from the making of the Advance; and
(b) (other than in respect of any member of the Target Group
by reason of the breach of any change of control provision
occurring as a result of the Acquisition), no Group
Company is (nor would be with any of the giving of notice,
the lapse of time, the determination of materiality, or
the satisfaction of any other condition) 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 in a manner or
to an extent which could reasonably be expected to have a
Material Adverse Effect;
11.1.7 LITIGATION: save as disclosed in the Disclosure Letter or
otherwise disclosed to the Facility Agent in writing before the
date of this Agreement, no action, litigation, arbitration or
administrative proceeding has been commenced, or, to
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the best of the Parent Guarantor's information, knowledge and
belief, is pending or threatened, against any Group Company
which, if decided adversely, could reasonably be expected to have
a Material Adverse Effect nor is there subsisting any unsatisfied
judgment or award in an amount exceeding US$100,000 given against
any of them by any court, arbitrator or other body;
11.1.8 ACCOUNTS::
(a) each of the latest Accounts required to be delivered under
sub-clause 12.1.1 of Clause 12.1 (INFORMATION
UNDERTAKINGS) is prepared in accordance with GAAP and
gives a true and fair view of the financial position of
the relevant company as at the date to which they were
prepared and for the Financial Year of that company then
ended; and
(b) each of the latest set of Management Accounts required to
be delivered under sub-clause 12.1.2 of Clause 12.1
(INFORMATION UNDERTAKINGS) shows with reasonable accuracy
the financial position of the Group during the period to
which it relates;
11.1.9 ENCUMBRANCES: no Encumbrance other than a Permitted Encumbrance
exists over all or any part of the assets of any Group Company;
11.1.10 NO ENCUMBRANCES CREATED: the execution of the Financing Documents
by the Charging Group Companies and the exercise of each of their
respective rights and the performance of each of their respective
obligations under the Financing Documents will not, save for the
Encumbrances granted to the Finance Parties pursuant to the
Financing Documents, result in the creation of, or any obligation
to create, any Encumbrance over or in respect of any of their
assets;
11.1.11 AUTHORISATIONS: other than the registration of particulars of the
Security Documents at the Companies Registration Office pursuant
to section 395 of the Act or the relevant registry in each
relevant jurisdiction, registrations at the Land Registry, UCC
filings, any filings under the applicable law in any jurisdiction
so as to give effect to the Security Documents and the giving of
notice in respect of any contracts being assigned, all
authorisations, approvals, licences, consents, filings,
registrations, payment of duties or taxes and notarisations
required:
(a) for the conduct of the business, trade and ordinary
activities of each Group Company except to the extent that
failure to make, pay or obtain the same would not have a
Material Adverse Effect;
(b) for the performance and discharge of the obligations of
each Group Company under the Financing Documents to which
it is a party; and
(c) in connection with the execution, delivery, validity,
enforceability or admissibility in evidence of the
Financing Documents,
are (or will at the relevant time be) in full force and effect;
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11.1.12 TAXES: save as disclosed in the Disclosure Letter, each Group
Company has complied in all material respects with all Taxation
laws in all jurisdictions in which it is subject to Taxation and
has paid all Taxes due and payable by it and no claims are being
asserted against it in respect of Taxes except for assessments in
relation to the ordinary course of its business or claims
contested in good faith and in respect of which adequate
provision has been made and disclosed in the latest Accounts or
other information delivered to the Facility Agent under this
Agreement;
11.1.13 INFORMATION PACKAGE: save as disclosed in the Disclosure Letter,
in the case of information prepared by any person other than the
Parent Guarantor or on behalf of the Parent Guarantor only to the
best of the Parent Guarantor's and its directors' information,
knowledge and belief but otherwise without such qualification:
(a) the factual information contained in the Information
Package was, at the date of the relevant report or
document, true and accurate in all material respects and
not misleading in any material respect and as at the date
of this Agreement:
(i) there are no other facts the omission of which
would make any fact or statement in the Information
Package misleading in any material respect; and
(ii) nothing has occurred which would render any fact or
statement in the Information Package untrue or
misleading in any material respect; and
(b) all estimates, forecasts and projections contained or
referred to in the Information Package, and all
assumptions and presumptions upon the basis of which the
same were made, were fair and reasonable at the time they
were made, and nothing has occurred in the period since
the date the same were made to the date of this Agreement
which would necessitate a material revision to any of
those estimates, forecasts or projections in order for
them to be fair and reasonable;
11.1.14 ACCOUNTING REFERENCE DATE: the accounting reference date of each
Group Company is 31 December;
11.1.15 CORPORATE STRUCTURE: immediately prior to the date of this
Agreement:
(a) the details of the Group set out in Schedule 4 (THE GROUP)
are accurate and complete in all material respects; and
(b) each of the Targets has no Subsidiaries other than those
set out in Schedule 4 (THE GROUP);
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11.1.16 INTELLECTUAL PROPERTY RIGHTS: save as disclosed in the Disclosure
Letter or to the Facility Agent prior to the date of this
Agreement:
(a) one or more Group Companies owns or has the legal right to
use all of the Intellectual Property Rights which are
material to the conduct of the Group's business or are
required by it in order for it to carry on its business in
all material respects, except to the extent failure to own
or have such legal right to use the same would not have a
Material Adverse Effect;
(b) so far as it is aware, the operations of each Group
Company do not infringe any Intellectual Property Rights
held by any third party which infringement has or could
reasonably be expected to have a Material Adverse Effect
(it being understood that the Parent Guarantor does not
warrant the potential for commercial exploitation of the
Intellectual Property Rights of the Group); and
(c) all Intellectual Property Rights owned by it and which are
material to the conduct of the business of the Group are
subsisting and (so far as it is aware) no written claim by
any third party alleging any infringement of, act or
process relating to registered Intellectual Property
Rights which would be likely to render such Intellectual
Property Rights subject to revocation, compulsory licence,
cancellation or amendment remains outstanding which has or
could reasonably be expected to have a Material Adverse
Effect;
11.1.17 ENVIRONMENTAL: save as disclosed in the Disclosure Letter, each
Group Company has and has at all times complied with all
applicable Environmental Law, non-compliance with which could
reasonably be expected to have a Material Adverse Effect;
11.1.18 PENSIONS: save as disclosed in the Disclosure Letter and the
Information Package, each Group Company is in compliance in all
material respects with all applicable laws and contracts relating
to the pension schemes (if any) for the time being operated by it
or in which it participates;
11.1.19 EMPLOYEE BENEFIT PLANS:
(a) each US Group Company and ERISA Affiliate is in compliance
in all material respects with all laws and regulations,
including any applicable provisions of ERISA and the Code,
with respect to all Plans, Welfare Plans and Multiemployer
Plans and each US Group Company and ERISA Affiliate is, to
the best of its knowledge, not subject to any pending or
threatened claims involving any Plan, Welfare Plan or
Multiemployer Plan that would reasonably be expected to
result in liability causing a Material Adverse Effect;
(b) the Group Companies incorporated in the United States of
America and the ERISA Affiliates have not incurred and do
not expect to incur any
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liability to the PBGC that would reasonably be expected to
result in liability causing a Material Adverse Effect; and
(c) no Termination Event has occurred or is reasonably
expected to occur with respect to any Plan that would
reasonably be expected to result in liability causing a
Material Adverse Effect;
11.1.20 RESTRUCTURING: so far as it is aware, after making due enquiry,
there are no claims being asserted against it in respect of Taxes
arising from the Xxxxxxx and Xxxxxxx restructuring of the Parent
Guarantor and certain of its Subsidiaries which occurred on 21
November 2001; and
11.1.21 NO MATERIAL ADVERSE CHANGE: since 31 December 2000 no event has
occurred which has had or could be reasonably expected to have a
Material Adverse Effect.
11.2 REPETITION
The representations and warranties set out in Clause 11.1
(REPRESENTATIONS AND WARRANTIES) shall survive the execution of this
Agreement and shall be deemed to be repeated as follows:
11.2.1 each of the said representations and warranties shall be deemed
to be repeated on the first Drawdown Date; and
11.2.2 each of the said representations and warranties (other than those
made under sub-clauses 11.1.5, 11.1.6, 11.1.7, 11.1.9 to 11.1.19
inclusive) shall be repeated on each Drawdown Date (other than
the first Drawdown Date),
in each case, as if made with reference to the facts existing at the time
of repetition.
12. UNDERTAKINGS
12.1 INFORMATION UNDERTAKINGS
The Parent Guarantor undertakes that during the Security Period it shall,
unless the Facility Agent (acting on the instructions of the Majority
Lenders) otherwise agrees:
12.1.1 ACCOUNTS: as soon as the same become available (and in any event
within, in the case of the Group, 120 days (but otherwise within
270 days) after the end of each of its Financial Years) deliver
to the Facility Agent in sufficient copies for all the Lenders
the Accounts for each such Financial Year of the Group and each
Material Company (if applicable) together with a copy of the
management letter (if any) addressed by the auditors to the
directors of each such company in connection with its auditing of
the relevant Accounts as soon as reasonably practicable after
receipt of the letter by such company;
12.1.2 MANAGEMENT ACCOUNTS: as soon as the same become available (and in
any event within 30 days after the end of each successive
accounting period (none of which shall be more than 5 weeks in
duration (each an "ACCOUNTING PERIOD")), deliver to the Facility
Agent in sufficient copies for all the Lenders the consolidated
management accounts (the "MANAGEMENT ACCOUNTS") of the
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Parent Guarantor for each such Accounting Period and in such a
form as to disclose with reasonable accuracy the financial
position of the Group (being for the first three Accounting
Periods, the separate consolidated management accounts of (i) the
Target Group and (ii) the Group (other than the Target Group))
and which shall include the following information in respect of
each Accounting Period:
(a) a statement of profit and loss;
(b) a balance sheet; and
(c) a cashflow statement,
together with a comparison, where appropriate, of all such
information with the estimates, forecasts and projections in the
relevant Operating Budget (or any replacement or substitution
made therefor) in relation to each such Accounting Period
including an analysis justifying any variations therefrom and, if
necessary, revised estimates, forecasts and projections;
12.1.3 OPERATING BUDGETS:
(a) provide to the Facility Agent (in a format acceptable to
the Facility Agent, acting on the instructions of the
Majority Lenders (who themselves are acting reasonably))
an Operating Budget for each of its Financial Years during
the Security Period, no later than 30 days after the start
of each such Financial Year (and, in draft form prior to
the start of such Financial Year), together with a
comparison of the information, estimates, forecasts and
projections contained therein with any relevant
information, estimates, forecasts and projections
contained in the Accountants' Report and the Business Plan
including an analysis justifying any variations therefrom;
and
(b) if the Parent Guarantor shall determine that any of the
estimates, forecasts or projections made in relation to
any of its Financial Years should be materially different
from those set out in the then current Operating Budget
(or any substitution therefor subsequently made and agreed
by the Facility Agent), provide to the Facility Agent
revised estimates, forecasts or projections in respect of
any part of each such Financial Year and such revised
estimates, forecasts or projections shall apply
immediately following their approval by the boards of
directors of the Parent Guarantor.
12.1.4 INFORMATION ON REQUEST: promptly following the Facility Agent's
request, provide to the Facility Agent such other information,
estimates, forecasts or projections in relation to any Group
Company and any of their respective businesses, assets, financial
condition, ownership or prospects as the Facility Agent may
reasonably require;
12.1.5 COMPLIANCE CERTIFICATES: provide to the Facility Agent within 30
days of each Quarter Date a certificate (a "COMPLIANCE
CERTIFICATE") executed under the
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authority of the board of directors of the Parent Guarantor
certifying that in relation to the 3 month period ending on each
such Quarter Date the Parent Guarantor is in compliance with the
financial undertakings set out in sub-clause 12.4.1 of Clause
12.4 (FINANCIAL UNDERTAKINGS). (For the purpose of this
sub-clause 12.1.5, the calculations shall be made by reference to
the Management Accounts prepared for the Quarter in relation to
which the relevant Compliance Certificate is to be given and, in
relation to a Compliance Certificate given in relation to the
last Quarter in any Financial Year of the Parent Guarantor, the
Parent Guarantor shall use its reasonable endeavours to procure
that the Auditors shall, if they are so satisfied, confirm when
delivering the relevant Accounts, in a confirmation addressed to
the Finance Parties, that the calculations contained in the
relevant certificate are in their opinion, based on the Accounts,
properly calculated PROVIDED THAT if there have been any breaches
of those undertakings at any time during the period to which that
certificate relates then the Parent Guarantor shall include in
that certificate relevant details of all those breaches);
12.1.6 GAAP: ensure that all Accounts and other financial information
submitted to the Facility Agent have been prepared in accordance
with GAAP (subject to normal year end adjustments and omission of
footnotes);
12.1.7 DEFAULT, LITIGATION, ETC: promptly, upon becoming aware of the
same, notify the Facility Agent of:
(a) any Default or Potential Default;
(b) any litigation, arbitration or administrative proceeding
commenced against any Group Company involving a potential
liability of any Group Company exceeding US$100,000; and
(c) any Encumbrance (other than a Permitted Encumbrance)
attaching to any of the assets of any Group Company;
12.1.8 SEC FILINGS: provide to the Facility Agent, promptly upon the
same being made, a copy of any filing made by it with the
Securities Exchange Commission;
12.1.9 ANNUAL PRESENTATION: if so requested by the Majority Lenders, at
least once every Financial Year of the Parent Guarantor, give a
single presentation to the Lenders (by at least two officers of
the Parent Guarantor), at a time and venue agreed with the
Facility Agent, about the business and financial performance of
the Group and such other related matters as any of the Lenders
reasonably request; and
12.1.10 AUDITORS:
(a) promptly after the date of this Agreement appoint one of
the firms specified in the definition of Auditors to audit
the consolidated annual financial statements of the Group;
and
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(b) notify the Facility Agent of any change to its Auditors.
12.2 POSITIVE UNDERTAKINGS
The Parent Guarantor undertakes that during the Security Period it shall,
and it shall procure that each Group Company (which, for these purposes,
shall only include members of the Target Group as from Completion) shall,
unless the Facility Agent (acting on the instructions of the Majority
Lenders) otherwise agrees:
12.2.1 PAY TAXES: pay and discharge all Taxes and governmental charges
payable by or assessed upon it prior to the date on which the
same become overdue unless, and only to the extent that, such
Taxes and charges shall be contested in good faith by appropriate
proceedings, pending determination of which payment may lawfully
be withheld, and there shall be set aside adequate reserves with
respect to any such Taxes or charges so contested in accordance
with GAAP;
12.2.2 INSURANCE: cause its assets to be and kept insured with reputable
insurers in such amounts and against such risks as is customary
for prudent companies carrying on business comparable to that of
the relevant Group Companies;
12.2.3 COMPLIANCE AND AUTHORISATIONS: comply with all laws (including
Environmental Laws and ERISA) and obtain, maintain and comply
with the terms of any authorisation, approval, licence, consent,
exemption, clearance, filing or registration required:
(a) for the conduct of its business, trade and ordinary
activities, save to the extent that failure to obtain,
maintain or comply with the same could reasonably be
expected not to have a Material Adverse Effect; and
(b) to enable it to perform its obligations under, or for the
validity, enforceability or admissibility in evidence of,
any Financing Document;
12.2.4 RANKING OF OBLIGATIONS: ensure that its obligations under the
Financing Documents to which it is a party shall at all times
rank at least PARI PASSU with all its other present and future
unsecured and unsubordinated Indebtedness except for any
obligations which are mandatorily preferred by law and not by
contract;
12.2.5 HEDGING: within 60 days of the date of this Agreement, procure
that Swiss Newco enters into such interest rate protection
agreements with one or more Lenders in respect of a principal
amount of at least 66 2/3 per cent. of the aggregate amount of
the Senior Term Loans and the Loan for a period of at least 3
years and comply with and discharge their obligations and
liabilities under those agreements;
12.2.6 ADDITIONAL SECURITY: procure that, in respect of each Material
Company from time to time, but subject to any legal prohibition
or limitation on the giving of such Group Guarantee, Asset
Security Document or Share Charge either at all or within the
time frame specified in this sub-clause 12.2.6 and the Group not
incurring costs which are materially more extensive than those
incurred in
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executing the Security Documents pursuant to Clause 4.1
(CONDITIONS PRECEDENT):
(a) that Material Company has executed a Group Guarantee and
an Asset Security Document;
(b) a Group Company has executed a Share Charge in respect of
the entire issued share capital of that Material Company;
and
(c) such Group Guarantee, Asset Security Document and Share
Charge have been delivered to the Security Trustee within
30 days of the relevant company becoming a Material
Company together with such documentation in support
thereof as the Security Trustee may reasonably require,
including legal opinions (in form and content satisfactory
to the Security Trustee) from lawyers reasonably
acceptable to the Security Trustee;
12.2.7 PROTECTION OF RIGHTS UNDER THE ACQUISITION DOCUMENTS: take all
reasonable and practical steps to preserve and enforce its rights
arising under any Acquisition Document;
12.2.8 INTELLECTUAL PROPERTY RIGHTS: except to the extent failure to
take such action will not have a Material Adverse Effect:
(a) preserve and maintain the subsistence and validity of the
Intellectual Property Rights necessary for the business of
the relevant Group Company;
(b) use reasonable endeavours to prevent any infringement in
any material respect of such Intellectual Property Rights;
(c) make registrations and pay all registration fees and taxes
necessary to maintain such Intellectual Property Rights in
full force and effort and record its interest in such
Intellectual Property;
(d) not use or permit such Intellectual Property Rights to be
used in a way or take any step or omit to take any step in
respect of such Intellectual Property Rights which may
materially and adversely affect the existence or value of
such Intellectual Property Rights or imperil the right of
any Group Company to use such property; and
(e) not discontinue the use of such Intellectual Property
Rights.
12.2.9 COMPLIANCE WITH SECTION 151 OF THE ACT: comply in all respects
with sections 151 to 158 inclusive of the Act, including in
relation to the execution of the Security Documents and the
payment of amounts due under this Agreement;
12.2.10 TRANSMISSION BANKING BUSINESS: ensure that all transmission
banking business of the Group in the United Kingdom shall be
transferred to the Overdraft Bank (as defined in the Senior
Credit Agreement), where practicable, within 60 days
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of Completion and be maintained with the Overdraft Bank (as
defined in the Senior Credit Agreement) after that transfer;
12.2.11 KEYMAN INSURANCES: within 60 days of Completion take out the
Keyman Insurances and execute the Keyman Insurance Assignment and
deliver the same to the Security Trustee; and
12.2.12 PENSIONS:
(a) ensure that all pension schemes operated by or maintained
for the benefit of the Group Companies and/or any of its
employees are fully funded to the extent required by law
or by the terms of the relevant plan based on reasonable
actuarial assumptions and recommendations and are operated
or maintained as required by law; and
(b) deliver to the Facility Agent at intervals of no more than
three calendar years and, in any event, at such time as
those reports are prepared in order to comply with the
then current statutory or auditing requirements, actuarial
reports to the extent required by law or by the terms of
the relevant plan in relation to those pension schemes;
and
12.2.13 CHANGE OF MANAGEMENT: in respect of the Parent Guarantor only, in
the event that any of the Management and the finance directors of
the Parent Guarantor cease to be employed by the Parent
Guarantor, consult with the Facility Agent as to the identity of
a replacement for such person and use its reasonable endeavours
to procure that a replacement (which, for the avoidance of doubt,
shall be appointed at the sole discretion of the Parent
Guarantor) accepts an offer of employment and resigns from his
existing employment within 120 days of such cessation unless with
the consent of the Facility Agent (not to be unreasonably
withheld or delayed) the Parent Guarantor determines that such a
replacement is not required; and
12.2.14 USB CHARGE: use its best endeavours to procure, within 30 days of
the date of this Agreement, the removal of the USB Charge from
the file at the Irish Companies Registration Office.
12.3 NEGATIVE UNDERTAKINGS
The Parent Guarantor undertakes that during the Security Period it shall
not, and it shall procure that none of the Group Companies (which, for
these purposes shall only include members of the Target Group as from
Completion) shall, unless the Facility Agent (acting on the instructions
of the Majority Lenders) otherwise agrees:
12.3.1 NEGATIVE PLEDGE: create or permit to subsist any Encumbrance over
any of its assets other than Permitted Encumbrances;
12.3.2 DISPOSAL OF ASSETS: make a Disposal other than:
(a) in the ordinary course of its trading activities; or
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(b) where the Disposal Proceeds of the Disposal of a fixed
asset are used within 9 months of that Disposal for the
purchase of a fixed asset to replace directly the fixed
asset the subject of that Disposal and where pending such
application the Disposal Proceeds are paid to the credit
of such account as the Facility Agent shall stipulate
which account shall (if the Security Trustee requires) be
charged in favour of the Security Trustee on terms
reasonably satisfactory to the Security Trustee; or
(c) a Disposal of an asset which is obsolete for the purpose
for which such an asset is normally utilised; or
(d) a Disposal to a Charging Group Company; or
(e) a Disposal by one Group Company which is not a Charging
Group Company to another Group Company; or
(f) a Disposal of marketable debt instruments held as
investments or cash on terms not otherwise prohibited by
this Agreement; or
(g) a Disposal of vehicles by a Group Company where the
aggregate value of all such Disposals by Group Companies
in any Financial Year of the Parent Guarantor does not
exceed US$500,000; or
(h) a Disposal (other than a Disposal of land or buildings)
where the aggregate value of the assets the subject of
such Disposal by Group Companies (other than in accordance
with paragraphs (a) to (g) of this sub-clause 12.3.2) does
not exceed in any Financial Year of the Parent Guarantor,
US$500,000 (for the purposes of this paragraph, the value
of any asset shall be the greater of its book value and
the consideration received for it);
12.3.3 CHANGE OF BUSINESS: make any substantial change to the general
nature of the business of the Group as a whole from that carried
on at the date of this Agreement PROVIDED THAT an acquisition of
the type referred to in sub-clause 12.3.8 shall be deemed not to
result in such a substantial change;
12.3.4 MERGERS: in respect of any Charging Group Company (not being the
Parent Guarantor) or a Group Company whose share capital is
subject to a Share Charge (i) enter into any amalgamation,
demerger, merger or reconstruction other than with another Group
Company where in the case of a Charging Group Company the
relevant Charging Group Company is the continuing or surviving
entity (unless the other party to the amalgamation, demerger,
merger or reconstruction is also a Charging Group Company in
which case that other Charging Group Company must comply with the
requirements of this sub-clause 12.3.4(i)) and the Facility Agent
receives an opinion in terms satisfactory to it and from counsel
approved by it to the effect that after the relevant
amalgamation, demerger, merger or reconstruction, the relevant
Charging Group Company (or, as applicable, the continuing or
surviving Charging Group Company) remains bound by the terms of
the Financing Documents, or (ii) in
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the case of a Group Company whose share capital is subject to a
Share Charge, all of the share capital of the surviving entity is
subject to a Share Charge;
12.3.5 FEES: pay any fees or commissions to any person other than (i) on
open market terms and for the purpose of and in the ordinary
course of its trading activities or (ii) fees incurred under any
Transaction Document;
12.3.6 LOANS: make any loans or grant any credit to or for the benefit
of any person, other than:
(a) amounts of credit allowed by the relevant company in the
normal course of its trading activities; or
(b) loans made by one Charging Group Company to another
Charging Group Company; or
(c) loans made by a Group Company which is not a Charging
Group Company to another such Group Company; or
(d) loans made by a Group Company (which is not a Charging
Group Company) to another Group Company; or
(e) loans made by a Charging Group Company to a Group Company
(which is not a Charging Group Company) which do not, in
respect of the Group, exceed at any time US$1,000,000;
(f) loans made by a Group Company to its employees where such
loans do not, when aggregated with all such loans
(excluding advances to employees for travel, relocation
and other normal business expenses) made by all Group
Companies, exceed US$500,000 at any time;
(g) loans made by a Group Company to another Group Company to
the extent such loan is made in the ordinary course of the
customary cash management practices of the Group;
(h) loans made by Group Companies not falling within any of
paragraph (a) to (g) of this sub-clause 12.3.6 which do
not, in respect of the Group, exceed US$1,000,000 at any
time;
12.3.7 INDEBTEDNESS: incur or permit to subsist any Indebtedness other
than Permitted Indebtedness;
12.3.8 ACQUISITIONS: acquire any business of, or shares or securities
of, any company (other than a Charging Group Company) other than
where:
(a) the acquisition is of the Target Assets, the Target Shares
or the acquisition by Swiss Newco of the shares in CDIL
and Holdco UK prior to 31 January 2002; or
(b) the acquisition is of IVC for a consideration not
exceeding US$6,000,000; or
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(c)
(i) the acquisition is of a business, or of shares in a
company whose business is, complementary to the
Group's existing businesses and which, on a pro
forma basis, has positive annual earnings before
interest, Tax, Depreciation and amortisation in the
period of 12 months immediately preceding the
acquisition; and
(ii) immediately prior to making any acquisition
pursuant to this sub-clause 12.3.8 the Parent
Guarantor has delivered to the Facility Agent a
certificate signed by a director showing (with
reasonable supporting evidence) that after taking
into account the effect of such acquisition on a
proforma basis the Parent Guarantor will be able to
meet the financial undertakings in Clause 12.4
(FINANCIAL UNDERTAKINGS) on the next Financial Year
following completion of such acquisition; and
(iii) the aggregate of the consideration payable for, and
Indebtedness assumed or discharged by Group
Companies in connection with, all such acquisitions
(other than the acquisitions referred to in this
sub-clause 12.3.8) made by Group Companies does not
exceed in any Financial Year of the Parent
Guarantor the aggregate of (i) US$500,000; and (ii)
the amount of New Equity used to finance such
acquisition;
12.3.9 VARIATION OF TRANSACTION DOCUMENTS: permit or effect any
variations, novations or amendments to, or waivers of:
(a) the Acquisition Documents (other than where the effect of
the same is not material);
(b) the Bridge Note Instrument and the Bridge Notes; and
(c) the Warrant Instrument;
12.3.10 DIVIDENDS AND PAYMENTS ON BRIDGE NOTES AND THE PREFERRED STOCK:
in respect of the Parent Guarantor only, make, pay or declare any
dividend or other distribution in relation to any shares forming
part of its issued share capital (including the Preferred Stock)
other than with common stock of the Parent Guarantor or Preferred
Stock or, in respect of any Group Company, repay or prepay,
redeem or purchase, in each case for, or in, cash, the Bridge
Notes or pay any interest in cash in respect of the Bridge Notes
(other than from the proceeds of the Permitted Bridge Note
Refinancing) other than with Preferred Stock, common stock of the
Parent Guarantor or any Bridge Notes Refinancing Indebtedness;
and
12.3.11 ERISA: to the extent any of the following would reasonably be
expected to result in liability that would cause a Material
Adverse Effect:
(a) engage, or permit any ERISA Affiliate to engage, in any
Prohibited Transaction or engage in any conduct or commit
any act or suffer to exist
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any condition that could give rise to any material excise
tax, penalty, interest or liability under any provisions
of the Code or ERISA;
(b) fail, or permit any ERISA Affiliate to fail, to make any
payments of contributions to any Multiemployer Plan that
any US Group Company or any of its ERISA Affiliates may be
required to make under any agreement relating to such
Multiemployer Plan, or any law pertaining thereto;
(c) voluntarily terminate any one or more of their Plans, if
such termination would result in the imposition of an
Encumbrance on the assets of any US Group Company or any
ERISA Affiliate under ERISA; or
(d) fail to make required contributions to any Plan subject to
section 412(n) of the Code.
12.4 FINANCIAL UNDERTAKINGS
12.4.1 The Parent Guarantor undertakes to ensure that during the
Security Period, unless the Facility Agent (acting on the
instructions of the Majority Lenders) otherwise agrees:
(a) EBITDA TO TOTAL NET INTEREST COSTS
the ratio of EBITDA to Total Net Interest Costs for each
period referred to in Column A below shall not be less
than the ratio set out in Column B below opposite that
period:
COLUMN A COLUMN B
PERIOD RATIO
1 January 2002 to 31 March 2002 3.90:1
1 January 2002 to 30 June 2002 4.00:1
1 January 2002 to 30 September 2002 4.05:1
12 months to 31 December 2002 4.05:1
12 months to 31 March 2003 4.30:1
12 months to 30 June 2003 4.60:1
12 months to 30 September 2003 4.90:1
12 months to 31 December 2003 5.50:1
12 months to 31 March 2004 5.60:1
12 months to 30 June 2004 5.80:1
12 months to 30 September 2004 6.00:1
12 months to 31 December 2004 6.00:1
Each 12 month period ending on a Quarter 6.00:1
Date falling after 31 December 2004
(b) CASHFLOW TO TOTAL FUNDING COSTS
the ratio of Cashflow to Total Funding Costs for each
period of 12 months (or if shorter, the period from
Completion) ending on each Quarter Date falling on or
after 31 March 2002 shall be not less than 1.00:1;
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(c) LEVERAGE
the ratio of Total Debt on each Quarter Date set out in
Column A below to EBITDA for the period of 12 months (or
if shorter, the period from Completion) ending on such
Quarter Date shall not be greater than the ratio set out
in Column B below opposite such Quarter Date:
COLUMN A COLUMN B
PERIOD RATIO
31 March 2002 3.60:1
30 June 2002 3.70:1
30 September 2002 3.85:1
31 December 2002 3.95:1
31 March 2003 3.80:1
30 June 2003 3.55:1
30 September 2003 3.45:1
31 December 2003 3.10:1
31 March 2004 3.10:1
30 June 2004 3.00:1
30 September 2004 2.95:1
31 December 2004 2.75:1
31 March 2005 2.65:1
30 June 2005 2.50:1
30 September 2005 2.50:1
31 December 2005 2.50:1
Each Quarter Date falling after 2.50:1
31 December 2005
PROVIDED THAT, for the purposes of this sub-clause
12.4.1(c) of Clause 12.4 (FINANCIAL UNDERTAKINGS), in
relation to any period of 12 months ending on a Quarter
Date occurring on or before the date falling on or prior
to 30 September 2002, EBITDA for such 12 month period
shall be deemed to be the aggregate of (i) actual EBITDA
for the period from 1 January 2002 to such Quarter Date
and (ii) the budgeted EBITDA set out in the Business Plan
for the period from such Quarter Date ending on 31
December 2002.
(d) CAPITAL EXPENDITURE AND FINANCE LEASE EXPENDITURE
no Group Company shall incur any Capital Expenditure or
Finance Lease Expenditure if it would result in the
aggregate Capital Expenditure and Finance Lease
Expenditure incurred by the Group Companies in any period
set out in Column A below exceeding the amount set out
opposite such period in Column B below:
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COLUMN A COLUMN B
PERIOD AMOUNT (US$)
Completion to 31 December 2001 3,500,000
1 January 2002 to 31 December 2002 2,200,000
1 January 2003 to 31 December 2003 3,300,000
1 January 2004 to 31 December 2004 3,300,000
1 January 2005 to 31 December 2005 3,300,000
1 January 2006 to 31 December 2006 3,300,000
1 January 2007 to 31 December 2007 3,300,000
1 January 2008 to 31 December 2008 3,300,000
PROVIDED THAT, if in respect of a period referred to in
Column A above, the Group incurs Capital Expenditure in
aggregate less than the amount set opposite such period in
Column B above, the difference being "ADDITIONAL AVAILABLE
EXPENDITURE", the amount set out in Column B above
opposite the next succeeding period shall be deemed to be
increased by an amount equal to 50 per cent. of the amount
of the Additional Available Expenditure.
12.4.2
(a) If the directors of any Group Company determine at any
time during the Security Period that the accounting
reference date of that Group Company has or should be
changed or any of the accounting principles applied in the
preparation of any of the Accounts and the Management
Accounts shall be different from the Accounting
Principles, or if as a result of the introduction or
implementation of any applicable accounting standard or
any change in any of them or in any applicable law such
accounting principles are required to be changed, the
Parent Guarantor shall promptly give notice to the
Facility Agent of that change, determination or
requirement.
(b) If the Facility Agent reasonably believes that the
financial undertakings set out in this Clause 12.4 need to
be amended as a result of any such change, determination
or requirement, the Parent Guarantor shall negotiate with
the Facility Agent in good faith to amend the existing
financial undertakings so as to provide the Lenders with
substantially the same protections as the financial
undertakings set out in this Clause 12.4 (but which are
not materially more onerous).
(c) If the Parent Guarantor and the Facility Agent cannot
agree such amended financial undertakings within 30 days
of that notice, the Parent Guarantor and the Facility
Agent shall jointly nominate a firm of chartered
accountants to settle the amended financial undertakings,
or in default of such nomination the Facility Agent shall
request the President for the time being of the Institute
of Chartered Accountants in England and Wales to nominate
a firm of chartered accountants for that purpose. Such
accountants shall act as experts and not arbitrators and
their decision shall
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be final and binding on the Parties. The costs of such
accountants shall be paid by the Parent Guarantor.
12.4.3 The calculation of ratios and other amounts under this Clause
12.4 shall be made by reference to the latest Accounts,
Management Accounts and other financial information of the Group
Companies for the Financial Year of the Parent Guarantor, or
other period in relation to which the calculation falls to be
made. Each determination of the Facility Agent under this Clause
12.4 shall be conclusive and binding on Swiss Newco except for
any manifest error.
13. DEFAULT
13.1 DEFAULT
Each of the following shall be a Default:
13.1.1 NON-PAYMENT: Swiss Newco does not pay on the due date any amount
payable by it under this Agreement at the place at and in the
currency and funds in which it is expressed to be payable and (if
caused by technical or administrative error) the non-payment
continues unremedied for 3 Business Days from the due date; or
13.1.2 OTHER DEFAULTS: any Group Company breaches any of its obligations
under any Financing Document (other than the obligations referred
to in sub-clause 13.1.1) and, if that breach is capable of
remedy, it is not remedied within 15 Business Days after notice
of that breach has been given by the Facility Agent to the Parent
Guarantor; or
13.1.3 BREACH OF REPRESENTATION OR WARRANTY: any representation,
warranty or statement made or deemed to be repeated by any Group
Company under any Financing Document or in any document delivered
by or on behalf of Swiss Newco under or in connection with any
Financing Document is incorrect when made or deemed to have been
repeated and, where the event or circumstances giving rise to
such breach is capable of remedy, such event or circumstances are
not remedied within 15 Business Days of the Facility Agent
notifying the Parent Guarantor of such breach; or
13.1.4 UNLAWFULNESS OR REPUDIATION: it is unlawful for or any Group
Company to perform or comply with, or any Group Company
repudiates, any of its obligations under any Financing Document;
or
13.1.5 CROSS-DEFAULT: any Indebtedness of all or any of the Group
Companies in excess of, in aggregate, US$500,000:
(a) is not paid when due or within any originally applicable
grace period; or
(b) is declared to be or otherwise becomes due and payable
prior to its specified maturity,
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or any creditor of all or any of the Group Companies becomes
entitled to declare any such Indebtedness (other than any such
Indebtedness arising under the Senior Credit Agreement) due and
payable prior to its specified maturity; or
13.1.6 ATTACHMENT OR DISTRESS: a creditor or encumbrancer attaches or
takes possession of, or a distress, execution, sequestration or
other process is levied or enforced upon or sued out against, any
of the assets of any Group Company (having a value of at least
US$500,000) and such process is not discharged within 21 days; or
13.1.7 INABILITY TO PAY DEBTS: any Material Company:
(a) suspends payment of its debts or is unable or admits its
inability to pay its debts as they fall due; or
(b) begins negotiations with any creditor with a view to the
readjustment or rescheduling of any of its Indebtedness
which it would not otherwise be able to pay as it falls
due; or
(c) proposes or enters into any composition or other
arrangement for the benefit of its creditors generally or
any class of creditors by reason of financial
difficulties; or
13.1.8 INSOLVENCY PROCEEDINGS: any legal proceedings are started or
other formal steps taken (including the presentation of a
petition) for:
(a) any Material Company to be adjudicated or found insolvent;
or
(b) the winding-up or dissolution of any Material Company
other than (A) in connection with a solvent
reconstruction, the terms of which have been previously
approved in writing by the Majority Lenders, or (B) a
winding-up petition which is being contested in good faith
and with due diligence and which is, in any event,
discharged within 21 days of its presentation and before
it is advertised; or
(c) the appointment of a trustee, receiver, administrative
receiver or similar officer in respect of any Material
Company or any of its assets; or
13.1.9 ADJUDICATION OR APPOINTMENT: any adjudication of insolvency, or
any order for winding-up or dissolution or any appointment of a
trustee, receiver, administrative receiver or similar officer is
made in respect of any Material Company or any of its assets
under or in relation to any of the proceedings referred to in
sub-clause 13.1.8; or
13.1.10 ADMINISTRATION ORDER: an application is made to the court for an
administration order under the Insolvency Xxx 0000 with respect
to any Material Company; or
13.1.11 ANALOGOUS PROCEEDINGS: any event occurs or proceeding is taken
with respect to any Material Company in any jurisdiction to which
it is subject which has an effect equivalent or similar to any of
the events mentioned in sub-clause 13.1.6, 13.1.7, 13.1.8, 13.1.9
or 13.1.10; or
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13.1.12 CESSATION OF BUSINESS: any Material Company suspends, ceases or
threatens to suspend or cease to carry on all or a substantial
part of its business; or
13.1.13 MATERIAL ADVERSE CHANGE: any event or series of events occur
which has or could reasonably be expected to have a Material
Adverse Effect; or
13.1.14 REDEMPTION OF SHARES BY THE PARENT GUARANTOR: the Parent
Guarantor, without the prior written consent of the Facility
Agent (acting on the instructions of the Majority Lenders), makes
any redemption of any of its shares, purchases any of its shares
or otherwise reduces its issued share capital (save, for the
avoidance of doubt, if the Parent Guarantor elects or is obliged
to convert Preferred Stock to common stock pursuant to the Stock
Purchase Agreement); or
13.1.15 AUDIT QUALIFICATION: the auditors of the Group issue any
qualification in respect of the Accounts of the Parent Guarantor
for any of its Financial Years where the circumstances to which
such qualification relates have or could have reasonably be
expected to have, a Material Adverse Effect; or
13.1.16 ERISA LIABILITIES: any Termination Event occurs that, when taken
together with all other Termination Events that have occurred
result in, or could reasonably be expected to result in, a
liability that would cause a Material Adverse Effect.
13.2 ACCELERATION, ETC.
If a Default occurs and remains unremedied the Facility Agent may, and
shall if so instructed by the Majority Lenders, by notice (a "DEFAULT
NOTICE") to the Parent Guarantor cancel the Facility and require Swiss
Newco immediately to repay the Loan together with accrued interest and
all other sums payable under this Agreement, whereupon they shall become
immediately due and payable. Upon the service of any Default Notice the
Lenders' obligations to Swiss Newco under this Agreement shall be
terminated and the Commitment of each Lender shall be cancelled.
14. SET-OFF
Following the occurrence of a Default which remains outstanding (without
prejudice to the Finance Parties rights at law) each Finance Party may
set off any matured obligation owed by Swiss Newco under any Financing
Document against any obligation (whether or not matured) owed by the
relevant Finance Party to Swiss Newco, regardless of the place of
payment, booking branch or currency of either obligation. If the
obligations are in different currencies, the relevant Finance Party may
convert either obligation at the relevant spot rate of exchange of the
relevant Finance Party for the purpose of the set-off.
15. PRO RATA SHARING
15.1 REDISTRIBUTION
If any amount owing by Swiss Newco under this Agreement to a Lender (the
"SHARING LENDER") is discharged by voluntary or involuntary payment,
set-off or any other manner other than through the Facility Agent in
accordance with Clause 9 (PAYMENTS), then:
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15.1.1 the Sharing Lender shall immediately notify the Facility Agent of
the amount discharged and the manner of its receipt or recovery;
15.1.2 the Facility Agent shall determine whether the amount discharged
is in excess of the amount which the Sharing Lender would have
received had the amount discharged been received by the Facility
Agent and distributed in accordance with Clause 9 (PAYMENTS);
15.1.3 the Sharing Lender shall pay the Facility Agent an amount equal
to that excess (the "EXCESS AMOUNT") within 5 Business Days of
demand by the Facility Agent;
15.1.4 the Facility Agent shall treat the Excess Amount as if it were a
payment by Swiss Newco under Clause 9 (PAYMENTS) and shall pay
the Excess Amount to the Lenders (other than the Sharing Lender)
in accordance with Clause 9.7 (PARTIAL PAYMENTS); and
15.1.5 as between Swiss Newco and the Sharing Lender the Excess Amount
shall be treated as not having been received or recovered, and
Swiss Newco shall owe the Sharing Lender an immediately payable
debt equal to the Excess Amount.
15.2 LEGAL PROCEEDINGS
Notwithstanding Clause 15.1 (REDISTRIBUTION), no Sharing Lender shall be
obliged to share any Excess Amount which it receives or recovers pursuant
to legal proceedings taken by it to recover any sums owing to it under
this Agreement with any other Lender which has a legal right to, but does
not, either join in such proceedings or commence and diligently pursue
separate proceedings to enforce its rights, unless the proceedings
instituted by the Sharing Lender are instituted by it without prior
notice having been given to such Lender through the Facility Agent and an
opportunity to such Lender to join in such proceedings.
15.3 REVERSAL OF REDISTRIBUTION
If any Excess Amount subsequently has to be wholly or partly refunded to
Swiss Newco by a Sharing Lender which has paid an amount equal to that
Excess Amount to the Facility Agent under Clause 15.1 (REDISTRIBUTION),
each Lender to which any part of that amount was distributed shall on
request from the Sharing Lender repay to the Sharing Lender that Lender's
proportionate share of the amount which has to be so refunded by the
Sharing Lender.
15.4 INFORMATION
Each Lender shall on request supply to the Facility Agent such
information as the Facility Agent may from time to time request for the
purpose of this Clause 15.
16. THE FINANCE PARTIES
16.1 APPOINTMENT AND DUTIES
16.1.1 Each Lender irrevocably appoints the Facility Agent to act as its
agent in connection with the Facility and this Agreement and
irrevocably authorises the Facility Agent on its behalf to
perform the duties and to exercise the rights, powers and
discretions that are specifically delegated to it under or in
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connection with the Financing Documents together with any other
incidental rights, powers and discretions.
16.1.2 The Facility Agent shall not have any duties or responsibilities
except those expressly set out in the Financing Documents. As to
any matters not expressly provided for, the Facility Agent shall
act in accordance with the instructions of the Majority Lenders
(but in the absence of any such instructions shall not be obliged
to act). Any such instructions, and any action taken by the
Facility Agent in accordance with those instructions, shall be
binding upon all the Lenders.
16.1.3 The Facility Agent may:
(a) act in an agency, trustee, fiduciary or other capacity on
behalf of any other Lenders or financial institutions
providing facilities to any Group Company or any
associated company of a Group Company, as freely in all
respects as if it had not been appointed to act as agent
and/or trustee for the Lenders under this Agreement and
without regard to the effect on the Lenders of acting in
such capacity; and
(b) subscribe for, hold, be beneficially entitled to or
dispose of shares or securities, or options or other
rights to and interests in shares or securities in any
Group Company or any associated company of a Group Company
(in each case, without liability to account).
16.1.4 Each division of the Facility Agent (including, for so long as
RBS Mezzanine Limited is the Facility Agent, the agency
department of RBS Mezzanine Limited) shall be treated as a
separate entity from any other division or department of the
Facility Agent. If any of the Facility Agent's divisions or
departments (including, in the case of RBS Mezzanine Limited, its
agency department) should act for any Group Company in any
capacity (whether as bankers or otherwise) in relation to any
other matter, any information given by any Group Company to any
such division or department may be treated as confidential and
the Facility Agent shall, as between itself and the Lenders, not
be obliged to disclose the same to any Lender or any other
person.
16.1.5 It is acknowledged that the role of the Lead Arranger is and has
been confined solely to arranging the Facility and that the Lead
Arranger does not act as agent of any Lender and that in such
capacity the Lead Arranger shall have no obligations and
liabilities in relation to this Agreement.
16.2 PAYMENTS
16.2.1 The Facility Agent shall promptly account to the Lending Office
of each Lender for such Lender's due proportion of all sums
received by the Facility Agent for such Lender's account, whether
by way of repayment or prepayment of principal or payment of
interest, fees or otherwise.
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16.2.2 The Facility Agent shall maintain a memorandum account showing
the principal amount of the Advance outstanding under this
Agreement and the amount of each Lender's Participation in the
Advance.
16.3 DEFAULT
The Facility Agent shall not be obliged to monitor or enquire as to
whether or not a Default or Potential Default has occurred. The Facility
Agent shall be entitled to assume that no Default or Potential Default
has occurred unless it receives notice to the contrary from Swiss Newco
or any Lender describing the Default or Potential Default and stating
that such notice is a "Default Notice" or unless it is aware of a payment
default under this Agreement, in which case it shall promptly notify each
Lender.
16.4 RELIANCE
The Facility Agent may:
16.4.1 rely on any communication or document believed by it to be
genuine and correct and to have been communicated or signed by
the person by whom it purports to be communicated or signed; and
16.4.2 engage, pay for and rely on the advice of any professional
advisers selected by it given in connection with the Financing
Documents or any of the matters contemplated by the Financing
Documents,
and shall not be liable to any Party for any of the consequences of such
reliance.
16.5 LEGAL PROCEEDINGS
16.5.1 The Facility Agent shall not be obliged to take or commence any
legal action or proceeding against Swiss Newco or any other
person arising out of or in connection with the Financing
Documents until it shall have been indemnified or secured to its
satisfaction against all costs, claims and expenses (including
any costs award which may be made against it as a result of any
such legal action or proceeding not being successful) which it
may expend or incur in such legal action or proceeding.
16.5.2 The Facility Agent may refrain from doing anything which might in
its opinion constitute a breach of any law or any duty of secrecy
or confidentiality or be otherwise actionable at the suit of any
person.
16.6 NO LIABILITY
16.6.1 None of the Facility Agent or the Lead Arranger or any of its
respective officers, employees or agents shall be liable for any
action taken or not taken by it or any of them under or in
connection with the Financing Documents unless directly caused by
its or their gross negligence or wilful misconduct.
16.6.2 Neither the Facility Agent nor the Lead Arranger shall be
responsible for any statements, representations or warranties in
the Financing Documents or for any information supplied or
provided to any Lender by the Facility Agent or the Lead Arranger
in respect of Swiss Newco or any other person or for any other
matter relating to the Financing Documents or for the execution,
genuineness, validity, legality, enforceability or sufficiency of
such documents or any other
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document referred to in the Financing Documents or for the
recoverability of any Advance or any other sum to become due and
payable under the Financing Documents.
16.7 CREDIT DECISIONS
16.7.1 Each Lender:
(a) acknowledges that it has, independently and without
reliance on the Facility Agent or the Lead Arranger, made
its own analysis of the transaction contemplated by, and
reached its own decision to enter into, this Agreement and
made its own investigation of the financial condition and
affairs and its own appraisal of the creditworthiness of
Swiss Newco and any surety for Swiss Newco's obligations;
and
(b) shall continue to make its own independent appraisal of
the creditworthiness of Swiss Newco and any surety for
Swiss Newco's obligations.
16.7.2 Each Lender shall, independently and without reliance on the
Facility Agent or the Lead Arranger, make its own decision to
take or not take action under the Financing Documents.
16.8 INFORMATION
16.8.1 The Facility Agent shall provide the Lenders with all information
and copies of all notices which are given to it and which by the
terms of this Agreement are to be provided or given to the
Lenders as the case may be.
16.8.2 Except as provided in this Agreement, the Facility Agent shall
not be under any duty or obligation:
(a) either initially or on a continuing basis, to provide any
Lender with any credit information or other information
with respect to the financial condition of Swiss Newco or
which is otherwise relevant to the Facility; or
(b) to request or obtain any certificate, document or
information from Swiss Newco unless specifically requested
to do so by a Lender or in accordance with this Agreement.
16.9 RELATIONSHIP WITH LENDERS
16.9.1 In performing its functions and duties under this Agreement, the
Facility Agent shall act solely as the agent for the Lenders and
except as provided in the Financing Documents shall not be deemed
to be acting as trustee for any Lender. The Facility Agent shall
not assume or be deemed to have assumed any obligation as agent
or trustee for, or any relationship of agency or trust with,
Swiss Newco.
16.9.2 Neither the Facility Agent nor any Lender shall be under any
liability or responsibility of any kind to Swiss Newco or any
other Lender arising out of or in relation to any failure or
delay in performance or breach by Swiss Newco or
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any other Lender of any of its or their respective obligations
under the Financing Documents.
16.10 FACILITY AGENT'S POSITION
16.10.1 With respect to its own Participation in the Facility, the
Facility Agent shall have the same rights and powers under and in
respect of the Financing Documents as any other Lender and may
exercise those rights and powers as though it were not also
acting as agent and/or trustee under this Agreement. The Facility
Agent may, without liability to account, accept deposits from,
lend money to and generally engage in any kind of banking,
finance, advisory, trust or other business with or for Swiss
Newco as if it were not the agent or the trustee for other
persons under any Financing Documents.
16.10.2 The Facility Agent may retain for its own use and benefit (and
shall not be liable to account to any Lender for all or any part
of) any sums received by it by way of agency or management or
arrangement fees or by way of reimbursement of expenses incurred
by it.
16.11 INDEMNITY
Each Lender shall immediately on demand indemnify the Facility Agent (to
the extent not reimbursed by Swiss Newco) rateably according to that
Lender's Participation in the Facility (or, if no Advance shall then be
outstanding, its Commitment) from and against all liabilities, losses and
expenses of any kind or nature whatsoever (except in respect of any
agency, management or other fee due to the Facility Agent) which may be
incurred by the Facility Agent in its capacity as agent or trustee under
this Agreement or in any way relating to or arising out of the Financing
Documents or any action taken or omitted by the Facility Agent in
enforcing or preserving the rights of the Finance Parties under the
Financing Documents, PROVIDED THAT no Lender shall be liable for any
portion of such liabilities, losses or expenses resulting from the
Facility Agent's gross negligence or wilful misconduct.
16.12 RESIGNATION
16.12.1 The Facility Agent may resign by giving at least 60 days' notice
to the Parent Guarantor and each Lender. Upon receipt of a notice
of resignation the Parent Guarantor and the Majority Lenders may
select any bank or other financial institution as successor
Facility Agent.
16.12.2 If no bank or other financial institution selected by the Parent
Guarantor and the Majority Lenders shall have accepted such
appointment within 20 days after the resigning Facility Agent has
given a notice of resignation then the Majority Lenders may,
after consultation with the Parent Guarantor, appoint any bank or
other financial institution as successor Facility Agent.
16.12.3 If no bank or other financial institution selected by the
Majority Lenders shall have accepted such appointment within 40
days after the resigning Facility Agent has given a notice of
resignation then the resigning Facility Agent may, after
consultation with the Parent Guarantor, appoint any bank or other
financial institution with an office in London as successor
Facility Agent.
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16.12.4 The resignation of the Facility Agent and the appointment of any
successor Facility Agent shall both become effective only upon
the successor Facility Agent notifying the resigning Facility
Agent, the Parent Guarantor and each Lender that it accepts its
appointment. On such notification:
(a) the resigning Facility Agent shall be discharged from its
obligations and duties as Facility Agent under the
Financing Documents but it shall continue to be able to
rely on the provisions of this Clause 16 in respect of all
matters relating to the period of its appointment; and
(b) the successor Facility Agent shall assume the role of
Facility Agent and shall have all the rights, powers,
discretions and duties which the Facility Agent has under
the Financing Documents.
16.12.5 The resigning Facility Agent shall make available to the
successor Facility Agent all records and documents held by it as
Facility Agent and shall co-operate with the successor Facility
Agent to ensure an orderly transition.
16.13 CHANGE OF OFFICE
The Facility Agent may at any time in its sole discretion by notice to
the Parent Guarantor and each Lender designate a different office in the
United Kingdom from which its duties as the Facility Agent will be
performed.
16.14 DISTRIBUTION OF PROCEEDS OF ENFORCEMENT
16.14.1 In this Clause 16.14:
"LENDER OUTSTANDINGS" means, in respect of a Lender, the
aggregate of:
(a) all amounts actually and contingently due to it under this
Agreement; and
(b) all amounts actually and contingently due to it in respect
of the Interest Rate Protection Agreements.
"TOTAL OUTSTANDINGS" means the aggregate amount of all Lender
Outstandings.
16.14.2 On receiving proceeds under the Intercreditor Agreement, the
Facility Agent shall be entitled to deduct from the proceeds of
such enforcement its costs, charges and expenses incurred in
connection with such enforcement together with an amount equal to
all sums due to the Facility Agent under this Agreement before
distributing to each Lender an amount equal to the remaining
proceeds multiplied by:
Lender Outstandings Of Such Lender
----------------------------------
Total Outstandings
where Lender Outstandings and the Total Outstandings are all
calculated as at the date of distribution.
16.14.3 Where any part of any Lender Outstandings is denominated in a
currency other than Dollars, any calculation for the purposes of
this sub-clause 16.14 shall be made on the basis of the Dollar
Equivalent of that part calculated as at the date
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of distribution. However, an actual distribution may, in the
Facility Agent's discretion, be made in the currencies of the
Lender Outstandings and for this purpose the Facility Agent is
authorised to convert any proceeds of enforcement (including the
proceeds of any previous conversion under this Clause) from their
existing currency into any other currency at such rate of
exchange and at such time as the Facility Agent thinks fit.
16.14.4 The Facility Agent shall notify each Lender of any proposed
distribution and the proposed date of distribution and each
Lender shall provide to the Facility Agent a calculation of what
is due to it in respect of the sums referred to in sub-clause
16.14.1. The Facility Agent shall send copies of all such
calculations to each Lender and shall make the distributions on
the basis of such calculations.
16.14.5 If any future or contingent liability included in the calculation
of Lender Outstandings finally matures, or is settled, for less
than the future or contingent amount provided for in that
calculation, the relevant Lender shall notify the Facility Agent
of that fact and such adjustment shall be made by payment by that
Lender to the Facility Agent for distribution amongst the Lenders
as may be necessary to put the Lenders into the position they
would have been in (but taking no account of the time cost of
money) had the original distribution been made on the basis of
the actual as opposed to the future or contingent liability.
16.14.6 The Facility Agent may, at its discretion, accumulate proceeds of
enforcement in an interest bearing account in its own name until
there is a minimum of US$500,000 to distribute under sub-clause
16.14.2.
17. FEES AND EXPENSES
17.1 EXPENSES
The Parent Guarantor shall on demand pay all expenses incurred (including
legal, valuation and accounting fees but, in relation to sub-clauses
17.1.1, 17.1.2 and 17.1.3, only to the extent the same are reasonable in
amount), and any VAT on those expenses:
17.1.1 by the Lead Arranger and the Facility Agent in connection with
the negotiation, preparation and execution of the Financing
Documents and the other documents contemplated by the Financing
Documents;
17.1.2 by the Lead Arranger or the Facility Agent in respect of the
syndication of the Facility;
17.1.3 by the Facility Agent or the Lenders in connection with the
granting of any release, waiver or consent or in connection with
any amendment or variation of any Financing Document, in each
case, requested by a Group Company; and
17.1.4 by the Facility Agent or the Lenders in enforcing, perfecting,
protecting or preserving (or attempting so to do) any of their
rights, or in suing for or recovering any sum due from Swiss
Newco or any other person under any Financing Document, or any
reasonable action taken in investigating any possible Default or
Potential Default.
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17.2 ARRANGEMENT AND AGENCY FEES
The Parent Guarantor shall pay arrangement and agency fees in accordance
with the terms of the Fees Letter. For the avoidance of doubt, all
liabilities and obligations of the Parent Guarantor under the Fees Letter
shall be deemed to be incurred under this Agreement and shall be secured
by the Security Documents.
17.3 COMMITMENT FEE
The Parent Guarantor shall pay a commitment fee in Dollars to the
Facility Agent for the account of the Lenders at the rate of 1.00 per
cent. per annum on the unutilised amount of the Facility. The commitment
fee shall be calculated on a day-to-day basis and a 360 day year in
respect of the Commitment Period and shall be payable in arrear on the
last day of the Commitment Period or on an earlier date on which the
Total Commitments equal zero.
17.4 DOCUMENTARY TAXES INDEMNITY
All stamp, documentary, registration or other like duties or Taxes,
including any penalties, additions, fines, surcharges or interest
relating to those duties and Taxes, which are imposed or chargeable on or
in connection with any Financing Document shall be paid by the Parent
Guarantor. The Facility Agent shall be entitled but not obliged to pay
any such duties or Taxes (whether or not they are its primary
responsibility). If the Facility Agent does so the Parent Guarantor shall
on demand indemnify the Facility Agent against those duties and Taxes and
against any costs and expenses incurred by the Facility Agent in
discharging them.
17.5 VAT
17.5.1 All payments made by Swiss Newco under the Financing Documents
are calculated without regard to VAT. If any such payment
constitutes the whole or any part of the consideration for a
taxable or deemed taxable supply (whether that supply is taxable
pursuant to the exercise of an option or otherwise) by a Finance
Party, the amount of that payment shall be increased by an amount
equal to the amount of VAT which is chargeable in respect of the
taxable supply in question.
17.5.2 No payment or other consideration to be made or furnished to
Swiss Newco by a Finance Party pursuant to or in connection with
any Financing Document or any transaction or document
contemplated in any Financing Document may be increased or added
to by reference to (or as a result of any increase in the rate
of) any VAT which shall be or may become chargeable in respect of
any taxable supply.
17.6 INDEMNITY PAYMENTS
Where in any Financing Document Swiss Newco has an obligation to
indemnify or reimburse a Finance Party in respect of any loss or payment,
the calculation of the amount payable by way of indemnity or
reimbursement shall take account of the likely Tax treatment in the hands
of the relevant Finance Party (as conclusively determined by the relevant
party) of the amount payable by way of indemnity or reimbursement and of
the loss or payment in respect of which that amount is payable.
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18. AMENDMENTS AND WAIVERS
18.1 MAJORITY LENDERS
18.1.1 Subject to Clause 18.2 (ALL LENDERS), any term of any Financing
Document may be amended or waived with the written agreement of
the Parent Guarantor, the Majority Lenders and the Facility
Agent. The Facility Agent may effect, on behalf of the Majority
Lenders, an amendment or waiver to which the Majority Lenders
have agreed.
18.1.2 The Facility Agent shall promptly notify the Parent Guarantor and
each Lender of any amendment or waiver effected under sub-clause
18.1.1 and any such amendment or waiver shall be binding on the
Parent Guarantor and each Lender.
18.2 ALL LENDERS
An amendment or waiver which relates to:
18.2.1 the definition of "Majority Lenders" in Clause 1.1 (DEFINITIONS);
18.2.2 an extension of the date for, or a decrease in an amount or a
change in the currency of, any payment under any Financing
Document;
18.2.3 an increase in a Lender's Commitment;
18.2.4 a term of any Financing Document which expressly requires the
consent of each Lender; or
18.2.5 Clause 6 (INTEREST), 7 (REPAYMENT, PREPAYMENT AND CANCELLATION),
15 (PRO RATA SHARING) or 17.3 (COMMITMENT FEE) or this Clause 18,
may not be effected without the prior written consent of each Lender.
18.3 NO IMPLIED WAIVERS; REMEDIES CUMULATIVE
The rights of each Finance Party under the Financing Documents:
18.3.1 may be exercised as often as necessary;
18.3.2 are cumulative and not exclusive of its rights under the general
law; and
18.3.3 may be waived only in writing and specifically.
Delay in exercising or non-exercise of any such right is not a waiver of
that right.
18.4 ECONOMIC AND MONETARY UNION
If the United Kingdom becomes a Participating Member State and as a
result the Bank of England recognises more than one currency or currency
unit as the lawful currency of the United Kingdom:
18.4.1 (unless prohibited by law) the Facility Agent may designate
(after consultation with the Parent Guarantor) which currency or
currency unit the sterling payment obligations arising under this
Agreement are to be denominated or payable in;
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18.4.2 (unless prohibited by law) any translation from currency or
currency unit to another shall be at the official rate of
exchange recognised by the Bank of England for conversion,
rounded up or down by the Facility Agent (acting reasonably);
18.4.3 this Agreement shall be subject to such reasonable changes of
construction as the Facility Agent may specify from time to time
to be appropriate to reflect the adoption of the euro in the
United Kingdom and any relevant market conventions or practices
relating to the euro; and
18.4.4 any amount payable in sterling by the Facility Agent to the
Lenders under this Agreement shall be paid in the euro unit.
19. MISCELLANEOUS
19.1 SEVERANCE
If any provision of this Agreement is or becomes illegal, invalid or
unenforceable in any jurisdiction, that shall not affect:
19.1.1 the legality, validity or enforceability in that jurisdiction of
any other provision of this Agreement; or
19.1.2 the legality, validity or enforceability in any other
jurisdiction of that or any other provision of this Agreement.
19.2 COUNTERPARTS
This Agreement may be executed in any number of counterparts and this
shall have the same effect as if the signatures on the counterparts were
on a single copy of this Agreement.
20. NOTICES
20.1 METHOD
Each notice or other communication to be given under this Agreement shall
be given in writing in English and, unless otherwise provided, shall be
made by fax, e-mail or letter.
20.2 DELIVERY
Any notice or other communication to be given by one Party to another
under this Agreement shall (unless one Party has by 15 days' notice to
the other Party specified another address) be given to that other Party,
in the case of the Parent Guarantor, the Facility Agent at the respective
addresses given in Clause 20.3 (ADDRESSES), in the case of the Lenders,
at the respective addresses given in Schedule 1 (THE LENDERS) or, as the
case may be, the schedule to its relevant Transfer Certificate.
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20.3 ADDRESSES
The address and fax number of the Parent Guarantor, Swiss Newco and the
Facility Agent are:
20.3.1 Parent Guarantor and Swiss Newco:
c/o Inverness Medical Innovations, Inc.
Xxxxx 000, 00 Xxxxxx Xxxx
Xxxxxxx
Xxxxxxxxxxxxx
XXX 00000
Attention: Company Secretary
Fax: 00 0 000 000 0000
20.3.2 the Facility Agent:
RBS Mezzanine Limited
000 Xxxxxxxxxxx
Xxxxxx XX0X 0XX
Attention: Funding Issues Credit Issues
Xxxxx Xxxx Xxxxx Xxxxxx
Fax: 000 0000 0000 000 0005 5202
20.4 DEEMED RECEIPT
20.4.1 Any notice or other communication given by the Facility Agent
shall be deemed to have been received:
(a) if sent by fax, with a confirmed receipt of transmission
from the receiving machine, on the day on which
transmitted;
(b) in the case of a notice given by hand, on the day of
actual delivery; and
(c) if posted, on the second Business Day or, in the case of
airmail, the fifth Business Day following the day on which
it was despatched by first class mail postage prepaid or,
as the case may be, airmail postage prepaid,
PROVIDED THAT a notice given in accordance with the above but
received on a day which is not a Business Day or after normal
business hours in the place of receipt shall be deemed to have
been received on the next Business Day.
20.4.2 Any notice or other communication given to the Facility Agent
shall be deemed to have been given only on actual receipt.
20.5 NOTICES THROUGH FACILITY AGENT
Any notice or other communication from or to Swiss Newco under this
Agreement shall be sent through the Facility Agent.
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21. ASSIGNMENTS AND TRANSFERS
21.1 BENEFIT OF AGREEMENT
This Agreement shall be binding upon and enure to the benefit of each
Party and its successors and assigns.
21.2 ASSIGNMENTS AND TRANSFERS BY SWISS NEWCO
Swiss Newco shall be entitled to assign or transfer any of its rights or
obligations under this Agreement.
21.3 ASSIGNMENTS BY LENDERS
Any Lender may, subject to Clause 21.5 (CONDITION TO ASSIGNMENTS AND
TRANSFERS), assign any of its rights and benefits under the Financing
Documents to another bank or other financial institution (including
funds) PROVIDED THAT until the assignee has confirmed to the Finance
Parties that it shall be under the same obligations towards each of them
as it would have been under if it had been a party to this Agreement as a
Lender, the Finance Parties shall not be obliged to recognise the
assignee as having the rights against each of them which it would have
had if it had been such a party to this Agreement.
21.4 TRANSFERS BY LENDERS
21.4.1 Any Lender may, subject to Clause 21.5 (CONDITION TO ASSIGNMENTS
AND TRANSFERS), transfer, in accordance with this 21.4, any of
its rights and obligations under the Financing Documents.
21.4.2 If any Lender (the "EXISTING LENDER") wishes to transfer all or
any part of its Commitment or Participation in the Facility to
another bank or other financial institution (including funds)
(the "LENDER TRANSFEREE"), such transfer may be effected by way
of a novation by the delivery to, and the execution by, the
Facility Agent of a duly completed Transfer Certificate.
21.4.3 On the date specified in the Transfer Certificate:
(a) to the extent that in the Transfer Certificate the
Existing Lender seeks to transfer its Commitment or
Participation in the Facility, Swiss Newco and the
Existing Lender shall each be released from further
obligations to each other under this Agreement and their
respective rights against each other shall be cancelled
(such rights and obligations being referred to in this
sub-clause 21.4.3 as "DISCHARGED RIGHTS AND OBLIGATIONS");
(b) Swiss Newco and the Lender Transferee shall each assume
obligations towards each other and/or acquire rights
against each other which differ from the Discharged Rights
and Obligations only insofar as Swiss Newco and the Lender
Transferee have assumed and/or acquired the same in place
of Swiss Newco and the Existing Lender;
(c) each of the Parties and the Lender Transferee shall
acquire the same rights and assume the same obligations
among themselves as they would have acquired and assumed
had the Lender Transferee been a party under this
Agreement as a Lender with the rights and/or the
obligations acquired or assumed by it as a result of the
transfer; and
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(d) a proportion of the Existing Lender's rights under the
Security Documents, equal to the proportion of the
Existing Lender's rights under this Agreement being
transferred, shall automatically be transferred to the
Lender Transferee.
21.4.4 The Facility Agent shall promptly complete a Transfer Certificate
on request by an Existing Lender and upon payment by the Lender
Transferee of a fee of US$1,500 to the Facility Agent. Each Party
irrevocably authorises the Facility Agent to execute any duly
completed Transfer Certificate on its behalf PROVIDED THAT such
authorisation does not extend to the execution of a Transfer
Certificate on behalf of either the Existing Lender or the Lender
Transferee named in the Transfer Certificate.
21.4.5 The Facility Agent shall promptly notify the Parent Guarantor of
the receipt and execution on its behalf by the Facility Agent of
any Transfer Certificate.
21.5 CONDITION TO ASSIGNMENTS AND TRANSFERS
21.5.1 Any transfer or assignment shall be made with the prior consent
of the Parent Guarantor (such consent not to be unreasonably
withheld or delayed) provided that this shall not apply to a
transfer or assignment made in consultation with the Parent
Guarantor as part of the primary syndication of the Facility.
21.5.2 An assignment or transfer shall be in respect of a Commitment of
at least US$5,000,000 or, if less, the whole of the Commitment of
the assignor or the transferor.
21.5.3 No transfer or assignment shall be permitted to be made if it
would result in the total number of Lenders and Senior Banks
which are not banks exceeding 10.
21.6 CONSEQUENCES OF TRANSFER
Swiss Newco shall be under no obligation to pay any greater amount under
this Agreement following an assignment or transfer by a Lender of any of
its rights or obligations pursuant to this Clause 21.6 if, in the
circumstances existing at the time of such assignment or transfer, such
greater amount would not have been payable but for the assignment or
transfer.
21.7 DISCLOSURE OF INFORMATION
Each Finance Party may not disclose except to each other, to their
professional advisers and, subject to any such person entering into a
confidentiality undertaking in favour of the Parent Guarantor, to any
person with whom they are proposing to enter, or have entered into, any
kind of assignment, transfer, novation, participation or other agreement
in relation to this Agreement, any information which that Finance Party
has acquired under or in connection with any Financing Document, PROVIDED
THAT each Finance Party may disclose to any person any information that
such Finance Party has acquired under or in connection with any Financing
Document which is already in the public domain or which it is required by
law or any regulatory authority to disclose.
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22. INDEMNITIES
22.1 BREAKAGE COSTS INDEMNITY
The Parent Guarantor shall indemnify each Lender on demand against any
loss or expense (excluding loss of Margin but including any loss or
expense on account of funds borrowed, contracted for or utilised to fund
any amount payable under this Agreement, any amount repaid or prepaid
under this Agreement or any Advance) which that Lender has sustained or
incurred as a consequence of:
22.1.1 the Advance not being made following the service of a Drawdown
Notice (except as a result of the failure of that Lender to
comply with its obligations under this Agreement);
22.1.2 the failure of Swiss Newco to make payment on the due date of any
sum due under this Agreement;
22.1.3 the occurrence of any Default or the operation of Clause 13.2
(ACCELERATION, ETC.); or
22.1.4 other than pursuant to Clause 8.1 (ILLEGALITY), any prepayment or
repayment of the Advance otherwise than on an Interest Date
relative to the Advance or an Instalment Repayment Date.
22.2 CURRENCY INDEMNITY
22.2.1 Any payment made to or for the account of or received by any
Finance Party in respect of any moneys or liabilities due,
arising or incurred by Swiss Newco to any Finance Party in a
currency (the "CURRENCY OF PAYMENT") other than the currency in
which the payment should have been made under this Agreement (the
"CURRENCY OF OBLIGATION") in whatever circumstances (including as
a result of a judgment against Swiss Newco) and for whatever
reason shall constitute a discharge to Swiss Newco only to the
extent of the Currency of Obligation amount which that Finance
Party is able on the date of receipt of such payment (or if such
date of receipt is not a Business Day, on the next succeeding
Business Day) to purchase with the Currency of Payment amount at
its spot rate of exchange (as conclusively determined by that
Finance Party) in the London foreign exchange market.
22.2.2 If the amount of the Currency of Obligation which that Finance
Party is so able to purchase falls short of the amount originally
due to that Finance Party under this Agreement, then Swiss Newco
shall immediately on demand indemnify that Finance Party against
any loss or damage arising as a result of that shortfall by
paying to that Finance Party that amount in the Currency of
Obligation certified by that Finance Party as necessary so to
indemnify it.
22.3 GENERAL
22.3.1 Each indemnity in this Clause 22 shall constitute a separate and
independent obligation from the other obligations contained in
this Agreement, shall give rise to a separate and independent
cause of action, shall apply irrespective of any indulgence
granted from time to time and shall continue in full force and
effect notwithstanding any judgment or order for a liquidated sum
or sums in
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respect of amounts due under this Agreement or under any such
judgment or order.
22.3.2 The certificate of the relevant Finance Party as to the amount of
any loss or damage sustained or incurred by it shall be
conclusive and binding on Swiss Newco except for any manifest
error.
23. LAW AND JURISDICTION
23.1 LAW
This Agreement is governed by and shall be construed in accordance with
English law.
23.2 JURISDICTION
23.2.1 The Parties agree that the courts of England shall have
jurisdiction to settle any disputes which may arise in connection
with any Financing Document and that any judgment or order of an
English court in connection with any Financing Document is
conclusive and binding on them and may be enforced against them
in the courts of any other jurisdiction. This sub-clause 23.2.1
is for the benefit of the Facility Agent and each Lender only and
shall not limit the right of the Facility Agent and each Lender
to bring proceedings against Swiss Newco in connection with any
Financing Document in any other court of competent jurisdiction
or concurrently in more than one jurisdiction.
23.2.2 Swiss Newco:
(a) waives any objections which it may have to the English
courts on the grounds of venue or forum non conveniens or
any similar grounds as regards proceedings in connection
with any Financing Document; and
(b) consents to service of process by mail or in any other
manner permitted by the relevant law.
23.3 AGENT FOR SERVICE
Swiss Newco shall at all times maintain an agent for service of process
in England. That agent shall be Holdco UK of 0 Xxxxxxxxx, Xxxxxx XX0X
0XX. Any claim form, writ, summons, judgment or other notice of legal
process shall be sufficiently served on Swiss Newco if delivered to that
agent at its address for the time being. Swiss Newco shall not revoke the
authority of that agent. If for any reason that agent no longer serves as
agent of Swiss Newco to receive service of process, Swiss Newco shall
promptly appoint another such agent and immediately advise the Facility
Agent of that appointment.
IN WITNESS whereof the Parties have caused this Agreement to be duly executed on
the date set out above.
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SCHEDULE 1
THE LENDERS
LENDER AND LENDING OFFICE ADDRESS FOR NOTICES COMMITMENT
RBS Mezzanine Limited Notices relating to interest US$10,000,000
000 Xxxxxxxxxxx payments and/or funding to:
Xxxxxx XX0X 0XX
RBS Mezzanine Limited
Corporate Banking Office
0-00 Xxxxx Xxxxx Xxxxxx
Xxxxxx XX0X 0XX
Attn: Xxxxx Xxxx
Fax: x00 00 0000 0000
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SCHEDULE 2
PART A
CONDITIONS PRECEDENT
The conditions referred to in Clause 4.1 (CONDITIONS PRECEDENT) are as follows:
1. DELIVERY OF CERTIFIED COPIES
The Facility Agent shall have received a Certified Copy of each of the
following in form and substance satisfactory to it:
(a) the certificate of incorporation (and any relative certificate of
incorporation on change of name) (or any foreign equivalent) of
the Parent Guarantor, Swiss Newco, Holdco US, Inverness Medical
Inc., Holdco UK, Target A and CDIL (the "COMPANIES");
(b) the constitutional documents of the Companies;
(c) the minutes of a meeting of the board of directors of the
Companies (including any resolutions passed at those meetings)
(or any foreign equivalent):
(i) approving and authorising the execution, delivery and
performance of each Transaction Document, if any, to which
it is to be a party on the terms and conditions of those
documents subject always, where appropriate, to the
provisions of section 151 to 158 (inclusive) of the Act;
(ii) showing that the relevant board meeting was quorate, that
due consideration was given by all the relevant directors
present of the relevant company's obligations and
liabilities arising under those documents and that all
declarations of interests required in connection with any
Transaction Document to which it is to be a party were
made; and
(iii) authorising any director or authorised officer whose name
and specimen signature is set out in those minutes to sign
or otherwise attest the execution of those documents and
any other documents to be executed or delivered pursuant
to those documents;
(d) a special resolution of the members of Target A in relation to
section 155 of the Act;
(e) the statutory declarations made for the purpose of section 155 of
the Act in the prescribed form by all of the directors of Target
A together with a Certified Copy of each statutory report by
Xxxxxx Xxxxxxxx required under section 156(4) of the Act;
(f) the register of directors of Target A; and
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(g) each of the following documents duly executed by the parties
thereto:
(i) the Stock Purchase Agreement;
(ii) the Acquisition Documents;
(iii) the Disclosure Letter;
(iv) the Bridge Note Agreement;
(v) the Mezzanine Loan Agreement;
(vi) the Warrant Instrument; and
(vii) the Lock Up Agreement; and
(h) a notice from the Parent Guarantor to the Vendor assigning all of
the benefit of the Acquisition Agreement to the Facility Agent.
2. DELIVERY OF ORIGINAL NON-SECURITY DOCUMENTATION, ETC.
The Facility Agent shall have received each of the following in form and
substances satisfactory to it:
(a) the Fees Letter duly countersigned by the Parent Guarantor, in
the agreed form;
(b) all items forming the Information Package;
(c) a letter in substantially the form set out in Schedule 7 (FORM OF
NET ASSETS LETTER) addressed to the Finance Parties from Xxxxxx
Xxxxxxxx in respect of Target A;
(d) a report on title from Messrs Xxxx and Maw in respect of the
Legally Mortgaged Property;
(e) a letter from a reputable insurance broker confirming that as
from Completion the Group has in place insurance policies that
are consistent with those that would be carried by a prudent
company carrying on an equivalent business to that carried on by
the Group;
(f) a certificate from an authorised officer of the Parent Guarantor,
in the agreed form, that:
(i) the Investors have made the subscriptions for ordinary
shares and Preferred Stock in the Parent Guarantor and the
Bridge Notes that they are obliged to make under the
Bridge Note Agreement in an amount of not less than
(pound)50,165,933 (of which (pound)47,177,875 (or THE
Dollar Equivalent of such amount calculated as at the date
of Completion) plus a further US$1,589,636 have been
contributed by the Agreed Investor Group and that such sum
has been applied or will, simultaneously with the first
drawdown under this Agreement, be applied for the same
purpose as the proceeds of the Term Loans;
-75-
(ii) other than with the consent of the Facility Agent, none of
the Parent Guarantor's rights under the Acquisition
Documents has been waived or varied (other than where the
effect of the same is not material);
(iii) the Parent Guarantor is not aware of any breach of
warranty under the Acquisition Agreement that would
entitle it to rescind the Acquisition Agreement or any of
the other Acquisition Documents;
(iv) on Completion, the Parent Guarantor will be the direct or
indirect beneficial owner of the Target Shares and Target
Assets;
(v) the Senior Banks have an unconditional commitment to
advance the Senior Facilities in an amount of
US$60,000,000;
(vi) there are no Encumbrances (other than Permitted
Encumbrances) over all or any part of the assets of the
Group including duly completed deeds of release in respect
of Encumbrancers listed in the charges register of each
Group Company incorporated in England and Wales and any
foreign equivalent in respect of any Encumbrances over
Group Companies elsewhere; and
(vii) the stock and option schedule is complete and accurate.;
(g) a completion funds flow statement which shows, INTER ALIA, that
all fees due and payable pursuant to the terms of the Fees Letter
will be paid out of the proceeds of the first Term Advance made
hereunder;
(h) the written acceptance of Holdco UK as agent for service of
process on behalf of Swiss Newco;
(i) legal opinions from each of:
(i) Xxxxxxxx Chance L.L.P. as to matters of English law;
(ii) Xxxxxxxx Chance L.L.P. as to matter of New York and
Delaware law;
(iii) Xxxxxxxx Xxxxxx Xxxxxxxx as to matters of Irish law; and
(iv) Borel and Xxxxxx as to matters of Swiss law;
(j) a hedging strategy letter from the Facility Agent duly
countersigned by the Parent Guarantor;
(k) a syndication strategy letter from the Lead Arranger duly
countersigned;
(l) evidence that the net cash balance of the Group as at the date of
(and following) the Acquisition is at least US$42,516,280 (or the
Dollar Equivalent of such amount calculated as at the date of
Completion) (of which US$6,000,000 (or the Dollar Equivalent of
such amount) is preallocated for the acquisition of the IVC
Group);
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(m) confirmation from the Parent Guarantor that the separation of the
Parent Guarantor from Inverness Medical Technology, Inc. has been
completed and is effective;
(n) the monthly management accounts for the Quarter ending October
2001 of the Targets;
(o) references from Management and the Agreed Investor Group;
(p) completion of account opening formalities;
(q) a solvency certificate from the Parent Guarantor, Holdco US and
Inverness Medical, Inc.; and
(r) a borrowing/guaranteeing limit certificate in respect of the
Parent Guarantor, Holdco US and Inverness Medical, Inc.
3. DELIVERY OF SECURITY DOCUMENTS
The Security Trustee shall have received each of the following in form
and substance satisfactory to it:
(a) a Group Guarantee and Asset Security Document duly executed by
each of:
(i) Parent Guarantor;
(ii) Swiss Newco;
(iii) Holdco US;
(iv) CDIL; and
(v) Inverness Medical, Inc;
(b) a Guarantee and Debenture duly executed by each company
incorporated in England and Wales listed in Part B of Schedule 4
(THE GROUP) (other than Unipath Management Limited) and Holdco
UK;
(c) the Intercreditor Agreement duly executed by the parties to it;
(d) the Subordination Agreement duly executed by the parties to it;
(e) Share Charge duly executed by the Parent Guarantor over the
entire issued share capital of Swiss Newco;
(f) the Trade Xxxx Charge duly executed by Swiss Newco; and
(g) the Assignment,
together with, in each case, all documents deliverable with them.
-77-
PART B
CONDITIONS SUBSEQUENT
1. DELIVERY OF CERTIFIED COPIES
The Facility Agent shall have received a Certified Copy of each of the
following in form and substance satisfactory to it within 30 days from
the date of Completion the minutes of a meeting of the board of directors
of Holdco UK, CDIL and Swiss Newco (including any resolutions passed at
those meetings) (or any foreign equivalent):
(i) approving and authorising the execution, delivery and
performance of each Transaction Document, if any, to which
it is to be a party on the terms and conditions of those
documents;
(ii) showing that the relevant board meeting was quorate, that
due consideration was given by all the relevant directors
present of the relevant company's obligations and
liabilities arising under those documents and that all
declarations of interests required in connection with any
Transaction Document to which it is to be a party were
made; and
(iii) authorising any director or authorised officer whose name
and specimen signature is set out in those minutes to sign
or otherwise attest the execution of those documents and
any other documents to be executed or delivered pursuant
to those documents.
2. DELIVERY OF ORIGINAL NON-SECURITY DOCUMENTATION, ETC.
The Facility Agent shall have received each of the following in form and
substances satisfactory to it within 30 days from the date of Completion
(unless expressly stated):
(a) legal opinions from each of:
(i) Xxxxxxxx Chance L.L.P. as to matters of English law;
(ii) Xxxxxxxx Chance L.L.P. as to matter of Dutch law;
(iii) Xxxxxxxx Chance Punder as to matters of German law;
(iv) Xxxxxxxx Xxxxxx Xxxxxxxx as to matters of Irish law;
(v) Advokatfirman Xxxxx KB as to matters of Swedish law;
(vi) Borel and Xxxxxx as to matters of Swiss law; and
(vii) Xxxxxxxx Chance Punder as to matters of Belgian law.
(b) a 94A search in favour of the Security Trustee in respect of the
Legally Mortgaged Property giving no less than 15 Business Days
priority disclosing no adverse entries;
-78-
(c) form AP1 with the charge/land certificate and all relevant title
deeds in respect of such Legally Mortgaged Property with the
requisite Land Registry fee;
(d) licence to assign (if required) of any leasehold Legally
Mortgaged Property and service of any notice to charge on the
landlord of any leasehold Legally Mortgaged Property;
(e) a deed of priority between CDIL, the partners to this Agreement
and Industrial Development Agency (Ireland);
(f) powers of attorney in the required form necessary to enable the
execution and registration of any Guarantee, Asset Security
Document and Share Charge being entered into pursuant to
paragraph 3 of this Part B;
(g) evidence that the Parent Guarantor has transferred its entire
shareholding in CDIL and Holdco UK to Swiss Newco;
(h) reports on title from Xxxxx Xxxxx and Xxxxxx in respect of the
leasehold properties situate at Xxxx 0X, Xxxx 0X, Xxxx 000X and
Xxxx 000X Xxxxxx Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxx of CDIL.
3. DELIVERY OF SECURITY DOCUMENTS
The Security Trustee shall have received each of the following in form
and substance satisfactory to it within 30 days from the date of this
Agreement but, subject to any legal prohibition or limitation on the
giving of such Guarantee, Asset Security Document or Share Charge within
the time frame specified in this paragraph:
(a) Share Charges duly executed by Swiss Newco in respect of the
entire issued share capital of :
(i) Benelux;
(ii) Holdco UK;
(iii) Target B;
(iv) Target C;
(v) Target D; and
(vi) CDIL;
(b) supplemental debenture granted by CDIL in respect of the property
subject to a charge dated 12 January 1999 granted by CDIL in
favour of the Industrial Development Agency (Ireland);
(c) supplemental legal charge granted by Holdco UK in respect of the
Legally Mortgaged Property.
-79-
SCHEDULE 3
DRAWDOWN NOTICE
To: RBS MEZZANINE LIMITED
From: [SWISS NEWCO]
*[date]
Dear Sirs,
MEZZANINE LOAN AGREEMENT DATED * 2001 (THE "MEZZANINE LOAN AGREEMENT")
Terms defined in the Mezzanine Loan Agreement have the same meaning in this
notice.
We request the Advance to be drawn down under the Mezzanine Loan Agreement as
follows:
1. Facility (and, if appropriate, Tranche):
2. Amount [and currency] of Advance:
3. Drawdown Date:
4. Duration of Interest Period:
5. Payment instructions: (if applicable)
We confirm that today and on the Drawdown Date:
(i) the representations and warranties in Clause 11 (REPRESENTATIONS AND
WARRANTIES) to be repeated are and will be correct; and
(ii) no Default or Potential Default has occurred and is continuing or will
occur on the making of the Advance.
SIGNED
For and on behalf of
[SWISS NEWCO]
(a company incorporated in * under number *)
-80-
SCHEDULE 4
THE GROUP
PART A
EXISTING GROUP COMPANIES
NAME JURISDICTION SHARES OWNED BY
(%)
Parent Guarantor Delaware, United States
Swiss Newco Switzerland Parent Guarantor (100%)
Holdco US Delaware, United States Parent Guarantor (100%)
Holdco UK England and Wales Parent Guarantor (100%)
CDIL Ireland Parent Guarantor (100%)
Benelux Belgium Swiss Newco
Inverness Medical Inc. Delaware, United States Parent Guarantor (100%)
Orgenics International Holdings B.V. The Netherlands Parent Guarantor (100%)
Orgenics Ltd. Israel Parent Guarantor (50%)
Orgenics Holdco (50%)
Selfcare Technology, Inc. Delaware, United States Parent Guarantor (100%)
PBM-Selfcare, LLC Delaware, United States Selfcare Technology, Inc.
Inverness Medical Canada Inc. Canada Inverness Medical, (50%)
Xxxxx 00 - 000 XxxX Xxxxxxx
Orgenics Biosensors Ltd. Orgenics Ltd. (86%)
Orgenics O.S.A. Ltd. Orgenics Ltd. (100%)
Orgenics France S.A. France Orgenics Ltd.(100%)
Orgenics DO Brazil LTDA. Brazil Orgenics Ltd.(100%)
Orgenics Ltd. Colombia Colombia Orgenics Ltd. (100%)
JV Biograd Russia Orgenics Ltd. (51%)
Orgenics Reagentes Para Laboratories LTDA Brazil Orgenics Ltd. (100%)
-81-
PART B
TARGET GROUP COMPANIES
NAME JURISDICTION OWNERSHIP
Target A England and Wales Newco UK(100%)
Target B Germany Swiss Newco (100%)
Target C Sweden Swiss Newco (100%)
Target D The Netherlands Swiss Newco (100%)
Unipath Management Limited England and Wales Target A (100%)
-82-
SCHEDULE 5
MANDATORY COST RATE
The Mandatory Cost Rate is an addition to the interest rate on an Advance to
compensate the Lenders for the cost attributable to an Advance resulting from
the imposition from time to time under or pursuant to the Bank of England Act
1998 (the "BANK OF ENGLAND ACT") and/or by the Bank of England and/or the
Financial Services Authority (the "FSA") (or other United Kingdom governmental
authorities or agencies) of a requirement to place non-interest-bearing or
Special Deposits (whether interest bearing or not) with the Bank of England
and/or pay fees to the FSA calculated by reference to liabilities used to fund
the Advance.
The Mandatory Cost Rate shall be the rate determined by the Facility Agent to be
equal to the arithmetic mean (rounded upward, if necessary, to 4 decimal places)
of the respective rates notified by each Reference Lender to the Facility Agent
as the rate resulting from the application (as appropriate) of the following
formulae:
in relation to an Advance denominated in Sterling: XL + S(L - D)+F X 0.01
----------------------
100 - (X + S)
in relation to an Advance denominated in
a currency other than Sterling: F X 0.01
--------
300
where on the day of application of a formula:
X is the percentage of Eligible Liabilities (in excess of any stated
minimum) by reference to which that Reference Lender is required under or
pursuant to the Bank of England Act to maintain cash ratio deposits with
the Bank of England;
L is LIBOR for the relevant Advance for the relevant period;
F is the rate of charge payable by that Reference Lender to the FSA
pursuant to paragraph 2.02 or 2.03, as the case may be, of the Fees
Regulations (but where, for this purpose, the figures at paragraphs 2.02b
and 2.03b of the Fees Regulations shall be deemed to be zero) and
expressed in pounds per (pound)1 million of the Fee Base of that
Reference Lender;
S is the level of interest bearing Special Deposits, expressed as a
percentage of Eligible Liabilities, which that Reference Lender is
required to maintain by the Bank of England (or other United Kingdom
governmental authorities or agencies); and
D is the percentage rate per annum payable by the Bank of England to that
Reference Lender on Special Deposits.
(X, L, S and D shall be expressed in the formula as numbers and not as
percentages, e.g. if X = 0.15% and L = 7%, XL will be calculated as 0.15 x 7 and
not as 0.15% x 7%. A negative result obtained from subtracting D from L shall be
counted as zero.)
If any Reference Lender fails to notify any such rate to the Facility Agent, the
Mandatory Cost Rate shall be determined on the basis of the rate(s) notified to
the Facility Agent by the remaining Reference Lender(s).
-83-
The Mandatory Cost Rate attributable to an Advance or other sum for any period
shall be calculated at or about 11.00 a.m. on the first day of that period for
the duration of that period.
The determination of the Mandatory Cost Rate in relation to any period shall, in
the absence of manifest error, be conclusive and binding on the Parties.
If there is any change in circumstance (including the imposition of alternative
or additional requirements) which in the reasonable opinion of the Facility
Agent renders or will render either of the above formulae (or any element of the
formulae, or any defined term used in the formulae) inappropriate or
inapplicable, the Facility Agent (following consultation with Swiss Newco and
the Majority Lenders) shall be entitled to vary the same by giving notice to the
Parties. Any such variation shall, in the absence of manifest error, be
conclusive and binding on the Parties and shall apply from the date specified in
such notice.
For the purposes of this Schedule:
"ELIGIBLE LIABILITIES" and "SPECIAL DEPOSITS" have the meanings given to
those terms under or pursuant to the Bank of England Act or by the Bank
of England (as may be appropriate), on the day of the application of the
formula.
"FEE BASE" has the meaning given to that term for the purposes of, and
shall be calculated in accordance with, the Fees Regulations.
"FEES REGULATIONS" means the Banking Supervision (Fees) Regulations 2001
or such other law or regulation as may be in force from time to time in
respect of the payment of fees for banking supervision.
-84-
SCHEDULE 6
FORM OF TRANSFER CERTIFICATE
TRANSFER CERTIFICATE
To: RBS MEZZANINE LIMITED and the other parties to the Mezzanine Loan
Agreement (as defined below)
To: THE ROYAL BANK OF SCOTLAND plc as Security Trustee
This transfer certificate ("TRANSFER CERTIFICATE") relates to a credit agreement
dated * December 2001 and made between (1) the Parent Guarantor, (2) Swiss
Newco, (3) certain Lenders, (4) RBS Mezzanine Limited as facility agent and (5)
RBS Mezzanine Limited as lead arranger in respect of a term loan facility (the
"MEZZANINE LOAN AGREEMENT", which term shall include any amendments or
supplements to it).
Terms defined and references construed in the Mezzanine Loan Agreement shall
have the same meanings and construction in this Transfer Certificate.
1. *[insert full name of Existing Lender] (the "EXISTING LENDER"):
(a) confirms that to the extent that details appear in the schedule
to this Transfer Certificate under the headings "Existing
Lender's Commitment" and "Existing Lender's Participation in the
Facility", those details accurately summarise its Commitment and
its Participation in the Facility all or part of which is to be
transferred; and
(b) requests *[insert full name of Lender Transferee] (the "LENDER
TRANSFEREE") to accept and procure, in accordance with Clause
21.4 (TRANSFERS BY LENDERS) of the Mezzanine Loan Agreement, the
substitution of the Existing Lender by the Lender Transferee in
respect of the amount of its Commitment and its Participation in
the Facility to be transferred as specified in the schedule to
this Transfer Certificate by signing this Transfer Certificate.
2. The Lender Transferee requests each of the Parties to accept this
executed Transfer Certificate as being delivered under and for the
purposes of Clause 21.4 (TRANSFERS BY LENDERS) of the Mezzanine Loan
Agreement so as to take effect in accordance with the provisions of that
clause on *[insert date of transfer].
3. The Lender Transferee:
(a) confirms that it has received a copy of the Mezzanine Loan
Agreement together with such other documents and information as
it has requested in connection with this transaction;
(b) confirms that it has not relied and will not rely on the Existing
Lender to check or enquire on its behalf into the legality,
validity, effectiveness, adequacy, accuracy or completeness of
any such documents or information; and
-85-
(c) agrees that it has not relied and will not rely on any other
Finance Party to assess or keep under review on its behalf the
financial condition, creditworthiness, condition, affairs, status
or nature of Swiss Newco or any other party to the Security
Documents.
4. The Lender Transferee undertakes with the Existing Lender and each of the
other parties to the Mezzanine Loan Agreement that it will perform, in
accordance with its terms, all those obligations which, by the terms of
the Mezzanine Loan Agreement, will be assumed by it upon delivery of the
executed copy of this Transfer Certificate to the Facility Agent.
5. On execution of this Transfer Certificate by the Facility Agent on their
behalf, the Parties accept the Lender Transferee as a party to the
Mezzanine Loan Agreement in substitution for the Existing Lender with
respect to all those rights and/or obligations which, by the terms of the
Mezzanine Loan Agreement, will be assumed by the Lender Transferee after
delivery of the executed copy of this Transfer Certificate to the
Facility Agent.
6. None of the Finance Parties:
(a) makes any representation or warranty or assumes any
responsibility with respect to the legality, validity,
effectiveness, adequacy or enforceability of the Mezzanine Loan
Agreement or any of the other Financing Documents; or
(b) assumes any responsibility for the financial condition of Swiss
Newco or any other party to the Mezzanine Loan Agreement or any
of the other Financing Documents or any other document or for the
performance and observance by Swiss Newco or any other party to
the Mezzanine Loan Agreement or any of the other Financing
Documents or any other document of its or their obligations and
any and all conditions and warranties, whether express or implied
by law or otherwise, are excluded.
7. The Lender Transferee confirms that its Lending Office and address for
notices for the purposes of the Mezzanine Loan Agreement are as set out
in the schedule to this Transfer Certificate.
8. The Existing Lender gives notice to the Lender Transferee (and the Lender
Transferee acknowledges and agrees with the Existing Lender) that the
Existing Lender is under no obligation to re-purchase (or in any other
manner to assume, undertake or discharge any obligation or liability in
relation to) the transferred Commitment and Participation at any time
after this Transfer Certificate shall have taken effect.
9. Following the date upon which this Transfer Certificate shall have taken
effect, without limiting the terms of this Transfer Certificate, each of
the Lender Transferee and the Existing Lender acknowledges and confirms
to the other that, in relation to the transferred Commitment and
Participation, variations, amendments or alterations to any term of any
Financing Document arising in connection with any renegotiation or
rescheduling of the obligations under the Mezzanine Loan Agreement shall
apply to and be binding on the Lender Transferee alone.
-86-
10. Each Lender Transferee confirms that it has received a copy of each of
the Security Documents governed by German law which are pledges, is aware
of their content ad hereby expressly consents to the declarations of the
Security Trustee made on behalf of the Lender Transferee as future
pledgee in such Security Documents.
11. Each Lender Transferee confirms that it has received a copy of each of
the Security Documents governed by Swiss law which are pledges, is aware
of their content and hereby expressly consents to the declarations of the
Security Trustee made or to be made on behalf of the Lender Transferee as
future pledgee in such Security Documents. Each Lender Transferee
furthermore, confirms that where the transfer of the benefit out of such
Security Document requires the notarization of an amendment to the
Security Document he will grant the Security Trustee the necessary power
of attorney and acknowledges that he will not become a Secured Party (as
defined in such Security Document) under this Security Document before
the amendment has been duly executed. Finally, the Lender Transferee
confirms and acknowledges that under certain Security Documents governed
by Swiss law an approval by the partners' meeting of Swiss Newco may be
needed for the transfer to be effective.
12. This Transfer Certificate is governed by and shall be construed in
accordance with English law.
-87-
THE SCHEDULE
EXISTING LENDER'S COMMITMENT AMOUNT OF COMMITMENT TRANSFERRED
[**LIST COMMITMENTS FOR THE FACILITY.]
EXISTING LENDER'S PARTICIPATION AMOUNT OF PARTICIPATION TRANSFERRED
IN THE FACILITY
[**LIST PARTICIPATIONS EXPRESSED IN RELEVANT CURRENCIES FOR THE FACILITY.]
*[insert full name of Lender Transferee]
Lending Office Address for notices
* *[address]
Attention:
Fax:
-88-
*[Lender Transferee]
By: ...........................................................
(Duly authorised)
*[Existing Lender]
By: ...........................................................
(Duly authorised)
The Facility Agent on behalf of itself and all other parties to the
Credit Agreement
By: ...........................................................
(Duly authorised)
Dated:
-89-
SCHEDULE 7
FORM OF NET ASSETS LETTER
To: RBS Mezzanine Limited as Facility Agent and all the Lenders under a
mezzanine loan agreement (the "MEZZANINE LOAN AGREEMENT") dated [o] December
2001 and made between (1) Inverness Medical Innovations Inc., (2) Swiss Newco,
(3) certain Lenders, (4) RBS Mezzanine Limited as lead arranger and (5) RBS
Mezzanine Limited as facility agent.
Date
REPORT BY THE AUDITORS OF [name of company] (the "COMPANY") TO the Facility
Agent and each Lender (as each such term is defined in the Mezzanine Loan
Agreement)
This report is given in connection with the proposed arrangement whereby the
Company will give financial assistance for the purchase of the shares of *,
particulars of which are given in the statutory declaration made this day by the
directors pursuant to section 155(6) of the Companies Xxx 0000 (the "ACT").
The purpose of this report is solely to assist each of you in considering
whether the proposed arrangement is permitted under section 155(2) of the Act
and it is not intended to be used, quoted or referred to for any other purpose.
We have examined the Memorandum dated * (a copy of which is attached and
initialled by us for the purpose of identification) for which the Company is
solely responsible and have enquired into the Company's state of affairs so far
as necessary for us to review the bases for the Memorandum. We have not carried
out an audit and, save as set out below, express no opinion in this report on
the state of the Company's affairs.
We confirm that as at the close of business on * [same date as paragraph 1 of
the Board Memorandum] the aggregate of the Company's assets as stated in its
accounting records exceeded the aggregate of its liabilities as so stated.
We are not aware of anything to indicate that the opinion expressed in paragraph
2 of the Board Memorandum is unreasonable in all the circumstances.
Yours faithfully
Signed: ...................................................
Dated: ...................................................
[same date as statutory declaration of directors]
-90-
To: [ ]
From: [NAME OF COMPANY]
MEMORANDUM
This Memorandum is given in connection with the proposed arrangements whereby
the Company will give financial assistance for the acquisition of [its own]
shares, particulars of which are given in the statutory declaration made by the
directors this day pursuant to section 155(6) of the Companies Xxx 0000 (the
"ACT")
1. As at the close of business on * [the latest practicable date before the
memorandum is signed] the aggregate of the Company's assets as stated in
its accounting records exceeded the aggregate of its liabilities as so
stated.
2. Based on the Company's knowledge of events since that date and of the
likely course of the Company's business [as described in the accompanying
paper] and having received advice from its financial advisers, the
Company has formed the opinion that to the best of its knowledge and
belief the aggregate of the Company's assets will exceed the aggregate of
its liabilities immediately before the proposed financial assistance is
given and
EITHER that the giving of such financial assistance will not reduce
the net assets of the Company.
OR that the amount by which the giving of such financial
assistance will reduce the net assets of the Company will
not exceed the distributable profits of the Company as
determined on the basis of its [last annual][interim]
accounts made up to * (and after taking account of
distributions since that date).
SIGNED ON BEHALF OF THE COMPANY:
DATED:
[same date as statutory declaration of directors]
-91-
SCHEDULE 8
THE PROPERTIES
All that leasehold land described in a lease for a term of 25 years from 29
September 1996 made between Xxxxxx Xxxxxx Properties Limited (1) and Unilever UK
Holdings Limited (2) registered at HM Land Registry under title number BD198122.
-92
PARENT GUARANTOR
SIGNED by ) SANTO XXXXXXX XXXXXXXX
for and on behalf of )
INVERNESS MEDICAL INNOVATIONS INC. )
)
SIGNED by ) XXXX XXXXXX
for and on behalf of )
INVERNESS MEDICAL SWITZERLAND GMBH )
)
THE FACILITY AGENT
SIGNED by ) XXXXXX XXXX
for and on behalf of )
RBS MEZZANINE LIMITED )
)
THE LEAD ARRANGER
SIGNED by ) XXXXXX XXXX
for and on behalf of )
RBS MEZZANINE LIMITED )
)
THE LENDERS
SIGNED by ) XXXXXX XXXX
for and on behalf of )
RBS MEZZANINE LIMITED )
)
-93-
