AGREEMENT
DATED 29th April, 1999
L250,000,000
REVOLVING CREDIT AND TERM LOAN FACILITY
FOR
AEGIS GROUP PLC
AND
AEGIS ACQUISITION CORP.
PROVIDED BY
NATIONAL WESTMINSTER BANK PLC
XXXXX & XXXXX
London
INDEX
CLAUSE PAGE
1. Interpretation...........................................................1
2. The Facilities..........................................................11
3. Purpose.................................................................11
4. Conditions Precedent....................................................12
5. Drawdown................................................................13
6. Repayment...............................................................14
7. Prepayment and Cancellation.............................................14
8. Interest Periods........................................................16
9. Interest................................................................17
10. Selection of Optional Currencies........................................18
11. Amount of Optional Currencies for Term loans............................19
12. Payments................................................................20
13. Taxes...................................................................21
14. Market Disruption.......................................................23
15. Increased Costs.........................................................24
16. Illegality..............................................................25
17. Guarantee...............................................................25
18. Representations and Warranties..........................................27
19. Undertakings............................................................30
20. Default.................................................................36
21. Fees....................................................................40
22. Expenses................................................................40
23. Stamp Duties............................................................41
24. Indemnities.............................................................41
25. Evidence and Calculations...............................................42
26. Waivers and Remedies Cumulative.........................................43
27. amendments and waivers..................................................43
28. Changes to the Parties..................................................43
29. Disclosure of Information...............................................43
30. Set-Off.................................................................44
31. Severability............................................................44
32. Counterparts............................................................44
33. Notices.................................................................44
34. Jurisdiction............................................................46
35. Governing Law...........................................................47
SCHEDULES
1. Conditions Precedent Documents..........................................48
2. Calculation of the Mandatory Cost.......................................50
3. Form of Request.........................................................52
Signatories..................................................................53
THIS AGREEMENT is dated 29th April, 1999 between:
(1) AEGIS GROUP plc (Registered No. 1403668) and AEGIS ACQUISITION CORP.
(incorporated under the laws of the State of Delaware in the United
States of America) (each a "BORROWER" and together the "BORROWERS");
(2) AEGIS GROUP plc (Registered No. 1403668) ("AEGIS"); and
(3) NATIONAL WESTMINSTER BANK PLC as lender (the "BANK").
IT IS AGREED as follows:
1. INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"AAC"
means Aegis Acquisition Corp.
"ADMISSION"
means the admission of the shares which are the subject of the Vendor
Placing to the official List of the London Stock Exchange becoming
effective within the meaning of paragraph 7.1 of the Listing Rules.
"AFFILIATE"
means a Subsidiary or a holding company (as defined in Section 736 of
the Companies Act 1985) of a person or any other Subsidiary of that
holding company.
"BANK'S SPOT RATE OF EXCHANGE"
means the Bank's spot rate of exchange for the purchase of the relevant
Optional Currency in the London foreign exchange market with Sterling at
or about 11.00 a.m. on the relevant day.
"BUSINESS DAY"
means a day (other than a Saturday or a Sunday) on which banks are open
for general business in:
(a) London; and
(b) in relation to a transaction involving an Optional Currency (other
than euros) the principal financial centre of the country of that
Optional Currency; or
(c) in relation to a transaction involving euros, is also a Target
Business Day.
2
"CODE"
means the United States Internal Revenue Code of 1986 and any rule or
regulation issued thereunder from time to time in effect.
"COMMITMENT"
means a Term Loan Commitment or a Revolving Credit Commitment.
"COMMITMENT PERIOD"
means the Term Loan Commitment Period or the Revolving Credit Commitment
Period.
"CONTROLLED GROUP"
means AAC and all members of a controlled group of corporations and all
trades or businesses (whether or not incorporated) under common control
which, together with AAC, are treated as a single employer under Section
414 of the Code.
"DEFAULT"
means an Event of Default or an event which, with the giving of notice,
or if unremedied with the lapse of time (or any combination of the
foregoing), would constitute an Event of Default.
"DM"
means deutschmarks, the lawful currency for the time being of Germany.
"DRAWDOWN DATE"
means the date of the advance of a Loan.
"ERISA"
means the U.S. Employee Retirement Income Security Act of 1974 and any
rule or regulation issued thereunder from time to time in effect.
"EURO"
means the single currency of the Participating Member States.
"EVENT OF DEFAULT"
means an event specified as such in Clause 20 (Events of Default).
"EXISTING FACILITY AGREEMENT"
means the Restated Facilities Agreement dated 25th June, 1996 between,
inter alia, Aegis, HSBC Investment Bank plc and Societe Generale as
Joint Arrangers and Underwriters and Xxxxxx Xxxxxxx & Co Limited as
Agent.
3
"FACILITY"
means the Term Loan Facility or the Revolving Credit Facility and
"FACILITIES" means both of them.
"FINAL MATURITY DATE"
means the day falling six months after the date of this Agreement or
such later date as is agreed between the Bank and Aegis.
"FINANCE DOCUMENT"
means this Agreement or any other document designated as such by the
Bank and Aegis.
"FINANCIAL INDEBTEDNESS"
means:
(a) money borrowed or raised;
(b) any bond, note, loan stock, debenture, xxxx of exchange,
commercial paper or similar instrument;
(c) acceptance or documentary credit facilities (but excluding
acceptances of trade bills in respect of the purchase or sale of
goods in the ordinary course of trading);
(d) the amount of liability in respect of leases and hire purchase
contracts (excluding trade accounts arising in the normal course
of trading) which would, in accordance with relevant generally
accepted accounting standards be treated as finance or capital
leases;
(e) interest rate swaps, currency swaps, financial options, futures
contracts or other similar instruments;
(f) guarantees, bonds, stand-by letters of credit or other instruments
issued in connection with the performance of contracts;
(g) obligations under conditional or instalment sale agreements or any
other obligation to pay the deferred purchase or construction
price of assets or services, except trade accounts arising in the
normal course of day-to-day trading;
(h) guarantees or other assurances against financial loss in respect
of indebtedness of any person which falls within any of (a) to (g)
above; and
(i) all other indebtedness under any arrangement entered into
primarily as a method of raising finance (and not in the normal
course of, and as part of, day-to-day trading) and which is not
referred to in the foregoing paragraphs of this definition and
which would generally be classified as debt in accordance with
relevant generally accepted accounting standards
4
PROVIDED THAT, for the purposes of Clause 19.15 (Financial covenants),
in the case of any debenture, note or commercial paper issued by any
member of the Group which is a relevant discounted security (within the
meaning of Schedule 13 to the Finance Act 1996), only that part of the
principal amount thereof as would be repayable if such debenture, note
or commercial paper were to become repayable at the time when this
definition is being applied or as soon thereafter as is permitted by its
terms, whether upon default or otherwise, shall be treated as Financial
Indebtedness.
"GROUP"
means Aegis and its Subsidiaries.
"INTEREST PERIOD"
means each period determined in accordance with Clause 8 (Interest
Periods).
"LIBOR"
means the rate quoted by the Bank to leading banks in the London
interbank market at or about 11.00 a.m. on the applicable Rate Fixing
Day for the offering of deposits in the currency of the relevant Loan
for a period comparable to its Interest Period.
"LISTING RULES"
means the listing rules made by the London Stock Exchange pursuant to
Part IV of the Financial Services Xxx 0000.
"LOAN"
means, subject to Clauses 8 (Interest Periods) and 10 (Selection of
Optional Currencies), the principal amount of each borrowing by a
Borrower under this Agreement or the principal amount outstanding of
that borrowing.
"LOCK-UP AGREEMENT"
means each and any of the agreements pursuant to which the Lock-up
Options are granted.
"LOCK-UP OPTIONS"
means the options granted in favour of Aegis to purchase in aggregate
approximately thirty per cent of the outstanding Market Facts Shares
and "LOCK-UP OPTION" is to be construed accordingly.
"MANDATORY COST"
means the cost imputed to the Bank of compliance with the mandatory
liquid assets requirements of the Bank of England and/or the banking
supervision or other costs imposed by the Financial Services Authority,
as determined in accordance with Schedule 2.
5
"MARGIN"
means, up to and including the date falling three months after the date
of this Agreement, 0.65 per cent. per annum and thereafter 0.80 per
cent. per annum.
"MARKET FACTS"
means Market Facts, Inc.
"MARKET FACTS SHARES"
means the existing issued and fully paid-up shares of common stock in
Market Facts and any further shares of common stock in Market Facts
allotted or issued after the date of this Agreement.
"MATURITY DATE"
means the last day of the Interest Period of a Revolving Credit Loan.
"MERGER AGREEMENT"
means the merger agreement dated on or around the date of this Agreement
and made between the Borrowers and Market Facts.
"MULTIEMPLOYER PLAN"
means a "multiemployer plan" as defined in Section 4001(a)(3) of ERISA
to which any Borrower or any member of the Controlled Group has an
obligation to contribute.
"OFFER"
means the cash tender offer for the Market Facts Shares made or to be
made by AAC (or on its behalf) pursuant to Rule 14.1 of the United
States Securities Act of 1933, as amended, as such tender offer may from
time to time be amended, extended, added to, revised, renewed or waived.
"OFFER DOCUMENT"
means all the documents, including the circulars, to be sent by or on
behalf of AAC to shareholders in Market Facts (including the forms of
acceptance) in respect of the Offer.
"OPTIONAL CURRENCY"
means U.S. Dollars or any other currency (other than Sterling) which is
for the time being freely transferable and convertible into Sterling and
deposits of which are readily available in the London interbank market.
"OPTION TERM LOAN"
means a Term Loan, the proceeds of which are used or are to be used to
finance the acquisition of Market Facts Shares pursuant to the exercise
of the Lock-up Options and the fees, costs and expenses associated with
such acquisition.
6
"ORIGINAL GROUP ACCOUNTS"
means the audited consolidated accounts of the Group for the year ended
31st December, 1998.
"ORIGINAL STERLING AMOUNT"
in relation to a Loan means:
(a) if that Loan is denominated in Sterling, the amount of that Loan;
or
(b) in relation to a Revolving Credit Loan denominated in an Optional
Currency, the equivalent in Sterling of the amount of that Loan at
the Bank's Spot Rate of Exchange on the Business Day before its
Drawdown Date; or
(c) in relation to a Term Loan denominated in an Optional Currency,
the equivalent in Sterling of the amount of that Loan if it had
first been drawn down and had remained denominated in Sterling.
"PARTICIPATING MEMBER STATE"
means a Member State of the European Union that adopts a single currency
in accordance with the Treaty.
"PARTY"
means a party to this Agreement.
"PBGC"
means the Pension Benefit Guaranty Corporation.
"PLACEES"
means the persons who are nominated by Hoare Govett Limited to have
ordinary shares in Aegis allotted to them pursuant to the Vendor
Placing.
"PLACING AGREEMENT"
means the Placing Agreement between Aegis and Hoare Govett Limited under
which Hoare Govett Limited places those shares which are the subject of
the Vendor Placing.
"PLAN"
means an "employee benefit plan" (as defined in Section 3(3) of ERISA)
which either:
(a) is maintained, or contributed to, by any member of the Controlled
Group for employees of any member of the Controlled Group; or
7
(b) has at any time within the preceding five years been maintained,
or contributed to, by any person which was at such time a member
of the Controlled Group for employees of any person which was at
such time a member of the Controlled Group.
"PREFERENCE SHARES"
means the cumulative redeemable preference shares of L1 each in the
capital of Aegis Investments (Jersey) Limited to be subscribed by ABN
AMRO Equities Holdings (UK) Limited pursuant to the Subscription
Agreement.
"PRESS RELEASE"
means the press release issued by the Borrower or on its behalf on
announcement of the Offer.
"PRINCIPAL SUBSIDIARY"
means each of Carat France S.A., Carat Espana S.A., Carat Group UK Ltd,
Carat Scandinavia AB and Carat Espaces Deutschland GmbH.
"RATE FIXING DAY"
means:
(a) the first day of an Interest Period for a Loan denominated in
Sterling; or
(b) the Business Day before the first day of an Interest Period for a
Loan denominated in an Optional Currency (or such other day as is
generally treated as the rate fixing day for that currency by
market practice in the London interbank market).
"REGULATIONS T, U AND X"
means respectively, regulations T, U and X of the Board of Governors of
the Federal Reserve System of the United States (or any successor).
"REPORTABLE EVENT"
means a reportable event as defined in Section 4043 of ERISA and the
regulations issued under such section with respect to a Plan, excluding,
however, such events as to which the PBGC by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified within 30
days of the occurrence of such event, provided, however, that a failure
to meet the minimum funding standard of Section 412 of the Code and of
Section 302 of ERISA shall be a Reportable Event regardless of the
issuance of any such waiver of the notice requirement in accordance with
either Section 4043(a) of ERISA or Section 412(d) of the Code.
"REQUEST"
means a request made by the Borrower to utilise a Facility,
substantially in the form of Schedule 3.
8
"REVOLVING CREDIT COMMITMENT"
means L50,000,000 to the extent not cancelled, transferred or reduced in
accordance with this Agreement.
"REVOLVING CREDIT COMMITMENT PERIOD"
means the period from the date of this Agreement up to and including the
Final Maturity Date.
"REVOLVING CREDIT FACILITY"
means the facility referred to in Clause 2 (The Facilities).
"REVOLVING CREDIT LOAN"
means a Loan drawn down or to be drawn down under the Revolving Credit
Facility.
"REVOLVING CREDIT REPAYMENT DATE"
means, in relation to a Revolving Credit Loan, the last day of its
Interest Period.
"ROLLOVER LOAN"
means, in relation to a particular date, one or more Revolving Credit
Loans:
(a) whose Drawdown Date is the same as the Maturity Date of one or
more existing Revolving Credit Loans;
(b) where (i) the aggregate principal amount (or, if in a currency
different from the principal amount referred to in (ii) below, the
aggregate Original Sterling Amount) of the Revolving Credit Loans
is the same as or less than (ii) the aggregate outstanding
principal amount (if in a currency different from the principal
amount referred to in (i) above, translated into Sterling on the
basis of the Bank's Spot Rate of Exchange on the date of receipt
by the Bank of the Request for those Revolving Credit Loans) of
all Revolving Credit Loans whose Maturity Date is the same as that
Drawdown Date; and
(c) all of the proceeds (whether pursuant to the terms of Clause 12.6
(Netting of Payments) or otherwise) of which are to be used to
refinance all or part of the existing Revolving Credit Loans
referred to in (a) and (b) above.
"SECURITY INTEREST"
means any mortgage, pledge, lien, charge, encumbrance, or other
preferential right to assets, the commercial effect of which is to
create security or any other security interest whatsoever, howsoever
created or arising (for the avoidance of doubt, normal factoring and
discounting of debts do not constitute a Security Interest).
"STERLING"
means the lawful currency for the time being of the United Kingdom.
9
"SUBSCRIPTION AGREEMENT"
means the subscription agreement to be entered into between ABN AMRO
Equities Holdings (UK) Limited and Aegis Investments (Jersey) Limited
providing for the subscription of the Preference Shares by ABN AMRO
Equities Holdings (UK) Limited.
"SUBSIDIARY"
means:
(a) a subsidiary within the meaning of Section 736 of the Companies
Xxx 0000; and
(b) unless the context otherwise requires, a subsidiary undertaking
within the meaning of Section 258 of the Companies Xxx 0000.
"TARGET BUSINESS DAY"
means, in relation to a transaction involving euros, a day on which the
Trans-European Automated Real Time Gross Settlement Express Systems
(TARGET) is operating.
"TERM LOAN COMMITMENT"
means L200,000,000 to the extent not cancelled, transferred or reduced
in accordance with this Agreement.
"TERM LOAN COMMITMENT PERIOD"
means the period from the date of this Agreement up to and including the
Final Maturity Date.
"TERM LOAN"
means a Loan drawn down or to be drawn down under the Term Loan
Facility.
"TERM LOAN FACILITY"
means the facility referred to in Clause 2 (The Facilities).
"TOTAL COMMITMENTS"
means the aggregate of the Term Loan Commitment and the Revolving Credit
Commitment, being L250,000,000 at the date of this Agreement.
"TREATY"
means the Treaty Establishing the European Community, being the Treaty
of Rome of 25th March, 1957, as amended by the Single Xxxxxxxx Xxx 0000
and the Maastricht Treaty (which was signed at Maastricht on 7th
February, 1992 and came into force on 1st November, 1993), as amended
from time to time.
10
"U.K."
means the United Kingdom.
"UNCONDITIONAL DATE"
means the date on which AAC accepts for payment pursuant to the terms of
the Offer and/or acquires or has acquired pursuant to the terms of any
Lock-up Agreements in aggregate not less than 50 per cent. of the
outstanding Market Facts Shares.
"UNITED STATES"
means the United States of America.
"U.S. DOLLARS" OR "U.S.$"
means the lawful currency for the time being of the United States of
America.
"VENDOR PLACING"
means the placing of shares in Aegis with Placees to be effected by
Hoare Govett Limited.
1.2 CONSTRUCTION
(a) In this Agreement, unless the contrary intention appears, a reference
to:
(i) an "AMENDMENT" includes a supplement, novation or re-enactment and
"AMENDED" is to be construed accordingly;
"ASSETS" includes present and future properties, revenues and
rights of every description;
an "AUTHORISATION" includes an authorisation, consent, approval,
resolution, licence, exemption, filing, registration and
notarisation;
a "MATERIAL ADVERSE EFFECT" means:
(1) a material adverse effect on the financial condition of the
Group as a whole; or
(2) a material adverse effect on the ability of either Borrower
to perform its payment obligations under any of the Finance
Documents.
a "MONTH" is a reference to a period starting on one day in a
calendar month and ending on the numerically corresponding day in
the next calendar month, except that:
(1) if there is no numerically corresponding day in the month in
which that period ends, that period shall end on the last
Business Day in that calendar month; or
11
(2) if an Interest Period commences on the last Business Day of
a calendar month, that Interest Period shall end on the last
Business Day in the calendar month in which it is to end;
a "PERSON" includes any individual, company, unincorporated
association or body of persons (including a partnership, joint
venture or consortium), government, state, agency, international
organisation, or other entity;
a "REGULATION" includes any regulation, rule, official directive,
request or guideline (whether or not having the force of law, but
if not having the force of law, being of a type which the person
to whom it applies is accustomed to comply) of any governmental,
inter-governmental or supernational body, agency, department or
regulatory, self-regulatory or other authority or organisation;
(ii) a provision of a law is a reference to that provision as amended
or re-enacted;
(iii) a Clause or a Schedule is a reference to a clause of or a schedule
to this Agreement;
(iv) a person includes its successors and assigns;
(v) a Finance Document or another document is a reference to that
Finance Document or that other document as amended; and
(vi) a time of day is a reference to London time.
(b) Unless the contrary intention appears, a term used in any other Finance
Document or in any notice given under or in connection with any Finance
Document has the same meaning in that Finance Document or notice as in
this Agreement.
(c) The index to and the headings in this Agreement are for convenience only
and are to be ignored in construing this Agreement.
2. THE FACILITIES
(a) Subject to the terms of this Agreement, the Bank agrees to make
available to the Borrowers the following facilities:
(i) a committed multicurrency term loan facility under which the Bank
agrees to make Term Loans to the Borrowers up to an Original
Sterling Amount not exceeding the Term Loan Commitment; and
(ii) a committed multicurrency revolving credit facility under which
the Bank agrees to make Revolving Credit Loans to Aegis (but not
AAC) up to an Original Sterling Amount not exceeding the Revolving
Credit Commitment.
(b) The aggregate Original Sterling Amount of all outstanding Loans shall
not exceed the Total Commitments.
3. PURPOSE
(a) Each Borrower shall apply each Loan towards:
12
(i) in the case of Term Loans, financing the acquisition of the Market
Facts Shares acquired by AAC pursuant to the Offer or pursuant to
the terms of the Lock-up Options, cancellation of Employee Options
(as defined in the Merger Agreement), the payment of Merger
Consideration in respect of Certificates surrendered to the Paying
Agent and the payment of the appraised value of Dissenting Shares
(each such term as defined in the Merger Agreement) and the
consummation of all other transactions contemplated by the Offer,
the Lock-up Options, the Merger Agreement, the Placing Agreement
and the Subscription Agreement and the fees, costs and expenses
associated with such acquisition, cancellation and consummation;
or
(ii) in the case of Revolving Credit Loans, financing the general
corporate purposes of Aegis and its subsidiaries (including
refinancing its existing Financial Indebtedness under the Existing
Facility Agreement).
(b) Without affecting the obligations of either Borrower in any way, the
Bank is not bound to monitor or verify the application of any Loan.
4. CONDITIONS PRECEDENT
4.1 DOCUMENTARY CONDITIONS PRECEDENT
(a) The obligation of the Bank to make a Loan is subject to the
conditions precedent that the Bank has notified Aegis that it has
received all of the documents set out in paragraphs 1, 2 and 7 of
Schedule 1 and those set out in:
(i) (in the case of an Option Term Loan, paragraph 4 of that
Schedule;
(ii) (in the case of a Term Loan which is not an Option Term
Loan), paragraphs 3 and 5 of that Schedule; or
(iii) (in the case of a Revolving Credit Loan), paragraph 6 of
that Schedule,
in each case, in form and substance reasonably satisfactory to the
Bank.
(b) The Lock-up Agreements, the Press Release and the Offer Documents
shall be deemed to be satisfactory in form and substance to the
Bank if their terms (except as to price) are consistent with the
terms of the Offer, the Merger Agreement or the Lock-up Options as
at the date of this Agreement and the Bank shall not be entitled
to withhold notification of satisfaction under this Clause 4.1 by
reason only of a change in the price offered by AAC for any Market
Facts Shares from that disclosed to the Bank as at the date of
this Agreement.
4.2 FURTHER CONDITIONS PRECEDENT
The obligations of the Bank to make a Loan are subject to the further
conditions precedent that:
(a) on the Drawdown Date for that Loan:
(i) the representations and warranties in Clauses 18.2 (Status),
18.3 (Powers and authority), 18.4 (Legal Validity), 18.5(a)
and (b) (Non-conflict), 18.6(b) (No
13
default) and 18.9 (Litigation) (inclusive), are correct
and will be correct immediately after the Loan is made; and
(ii) (A) (in the case of a Revolving Loan) no Event of Default,
or, (in the case of any Loan other than a Rollover
Loan), no Default is outstanding or would result from
the Loan;
(B) in the case of a Term Loan, no Default is outstanding
or would result from the Loan, provided that for the
purposes of this sub-paragraph (B), only, the words in
brackets in the first line of Clause 20.3 (b)(ii)
(Breach of other obligations) shall be deemed deleted;
and
(b) the making of (and application of the proceeds of) the Loan would
not cause Clause 2 (The Facilities) or Clause 3 (Purpose) to be
contravened.
5. DRAWDOWN
5.1 COMMITMENT PERIOD
A Borrower may borrow a Term Loan during the Term Commitment Period and
may borrow a Revolving Credit Loan during the Revolving Credit
Commitment Period if the Bank receives, not later than 9.00 a.m. on the
Business Day before the proposed Drawdown Date, a duly completed
Request. Each Request is irrevocable.
5.2 COMPLETION OF REQUESTS
A Request will not be regarded as having been duly completed unless:
(a) it specifies whether the Loan is a Term Loan (and if it is a Term
Loan, whether it is an Option Term Loan) or a Revolving Credit
Loan;
(b) the Drawdown Date is a Business Day falling on or before the final
day of the relevant Commitment Period;
(c) if the currency selected is Sterling, the amount of the Loan is:
(i) a minimum of L1,000,000 and an integral multiple of
L1,000,000;
(ii) the balance of the relevant undrawn Commitment; or
(iii) such other amount as the Bank may agree;
(d) if the currency selected is an Optional Currency, the amount of
the Loan is:
(i) a minimum of the equivalent of L1,000,000 in that Optional
Currency; or
(ii) the balance of the relevant undrawn Commitment; or
(iii) such other amount as the Bank may agree;
14
(e) the amount selected under paragraph (c) or (d) above does not
cause Clause 2(b) (The Facilities) to be contravened;
(f) the currency selected complies with Clause 10 (Selection of
Optional Currencies);
(g) in the case of a Term Loan the first Interest Period selected
complies with Clause 8 (Interest Periods) and in the case of a
Revolving Credit Loan the Interest Period selected complies with
Clause 8 (Interest Periods) and does not extend beyond the Final
Maturity Date; and
(h) the payment instructions comply with Clause 12 (Payments).
Each Request must specify one Loan only, but each Borrower may, subject
to the other terms of this Agreement, deliver more than one Request on
any one day. Unless otherwise agreed by the Bank, no more than ten Term
Loans and ten Revolving Credit Loans may be outstanding at any time and,
in respect of Option Term Loans, the aggregate principal amount of all
Option Term Loans outstanding were the Option Term Loan specified in the
Request to be drawn down, would not exceed in aggregate
U.S.$100,000,000.
5.3 ADVANCE OF LOAN
Subject to the terms of this Agreement, the Bank shall make each Loan
available to that Borrower on the Drawdown Date requested.
6. REPAYMENT
6.1 TERM LOAN REPAYMENT
Each Borrower shall repay each Term Loan made to it in full on the Final
Maturity Date.
6.2 REVOLVING CREDIT LOAN REPAYMENT
Aegis shall repay each Revolving Credit Loan made to it in full on its
Maturity Date to the Bank.
6.3 RE-BORROWING
Subject to the other terms of this Agreement, any amounts repaid under
Clause 6.2 (Revolving Credit Loan Repayment) may be re-borrowed.
7. PREPAYMENT AND CANCELLATION
7.1 AUTOMATIC CANCELLATION
The Total Commitments shall be automatically cancelled at close of
business in London on the Final Maturity Date.
7.2 VOLUNTARY CANCELLATION
Aegis may, by giving not less than 5 days' prior notice (or such shorter
period as the Bank may agree) to the Bank, cancel the unutilised portion
of
15
(i) the Term Loan Commitment in whole or in part (but, if in part, in
a minimum of L1,000,000 and an integral multiple of L1,000,000)
before the Final Maturity Date; and
(ii) the Revolving Credit Commitments in whole or in part (but, if in
part, in a minimum of L1,000,000 and an integral multiple of
L1,000,000) before the Final Maturity Date.
7.3 VOLUNTARY PREPAYMENT
A Borrower may, by giving not less than 5 days' prior notice to the Bank
and subject to Clause 24.2 (Other indemnities), prepay any Loan made to
it on any Business Day in whole or in part (but, if in part, in a
minimum Original Sterling Amount of L1,000,000 and an integral multiple
of L1,000,000).
7.4 PREPAYMENT ON CHANGE OF CONTROL
If any change in ownership of any of the equity share capital (as
defined in the Companies Act 1985) of Aegis results in any single person
or group of persons acting in concert (as defined in the City Code on
Takeovers and Mergers) acquiring more than 50 per cent. in nominal value
of the same Aegis shall consult with the Bank and, unless the Bank
agrees otherwise with Aegis, the Borrowers shall forthwith on demand of
the Bank repay all Loans together with all accrued interest and other
sums payable under this Agreement (but excluding any such sums to the
extent unaccrued) and upon such demand being made, the Total Commitments
shall be cancelled in full and reduced to zero.
7.5 ADDITIONAL RIGHT OF PREPAYMENT AND CANCELLATION
If:
(a) either Borrower is required to pay to the Bank any additional
amounts under Clause 13 (Taxes); or
(b) either Borrower is required to pay to the Bank any amount under
Clause 15 (Increased costs); or
(c) interest on a Loan is being calculated in accordance with
Clause 14.3 (Alternative basis),
then, without prejudice to the obligations of the Borrowers under those
Clauses, a Borrower may, whilst the circumstances giving rise to the
requirement continue, serve a notice of prepayment and cancellation on
the Bank. On the date falling five Business Days after the date of
service of the notice:
(i) that Borrower shall prepay all the Loans made to it; and
(ii) if both Borrowers give notice under this Clause 7.5, the Total
Commitments shall be cancelled.
7.6 MISCELLANEOUS PROVISIONS
(a) Any notice of prepayment and/or cancellation under this Agreement is
irrevocable.
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(b) All prepayments under this Agreement shall be made together with accrued
interest on the amount prepaid and, subject to Clause 24.2 (Other
indemnities), without premium or penalty.
(c) No prepayment or cancellation is permitted except in accordance with the
express terms of this Agreement.
(d) No amount of the Total Commitments cancelled under this Agreement may
subsequently be reinstated.
(e) Without prejudice to the right of the Borrowers to re-borrow under
Clause 6.3 (Re-borrowing), no amount prepaid under this Agreement may
subsequently be re-borrowed.
8. INTEREST PERIODS
8.1 SELECTION
(a) A Borrower may select an Interest Period for a Term Loan in either the
relevant Request or, if the Term Loan has been borrowed, a notice
received by the Bank (in the case of a Loan denominated in an Optional
Currency) not later than 9 a.m. on the Business Day before the
commencement of that Interest Period or, (in the case of a Loan
denominated in Sterling), 9 a.m. on the first day of that Interest
Period. Each Interest Period for a Term Loan will commence on its
Drawdown Date or the expiry of its preceding Interest Period.
(b) Each Revolving Credit Loan has one Interest Period only. Aegis may
select an Interest Period for a Revolving Credit Loan in the relevant
Request. Each Interest Period for a Revolving Credit Loan will commence
on its Drawdown Date.
(c) Subject to the following provisions of this Clause 8, each Interest
Period will be one, two, three or four weeks or any other such period
agreed by Aegis and the Bank.
(d) If the Borrower fails to select an Interest Period for an outstanding
Term Loan in accordance with paragraph (a) above, that Interest Period
will, subject to the other provisions of this Clause 8, be one week (or,
if shorter, the period ending on the Final Maturity Date).
8.2 NON-BUSINESS DAYS
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 that calendar month (if there is one) or the preceding
Business Day (if there is not).
8.3 CONSOLIDATION FOR TERM LOANS
Notwithstanding Clause 8.1 (Selection), the first Interest Period for
each Term Loan shall end on the same day as the current Interest Period
for any other Term Loan denominated in the same currency as that Term
Loan. On the last day of those Interest Periods, those Term Loans shall
be consolidated and treated as one Term Loan.
8.4 COINCIDENCE
If an Interest Period would otherwise overrun the Final Maturity Date,
it shall be shortened so that it ends on the Final Maturity Date.
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8.5 OTHER ADJUSTMENTS
The Bank and Aegis may enter into such other arrangements as they may
agree for the adjustment of Interest Periods and the consolidation
and/or splitting of Loans.
8.6 NOTIFICATION
The Bank shall notify the relevant Borrower of the duration of each
Interest Period promptly after ascertaining its duration.
9. INTEREST
9.1 INTEREST RATE
The rate of interest on each Loan for its Interest Period is the rate
per annum determined by the Bank to be the aggregate of the applicable:
(a) Margin;
(b) LIBOR; and
(c) in the case of a Loan denominated in Sterling, Mandatory Cost.
9.2 DUE DATES
Except as otherwise provided in this Agreement, accrued interest on each
Loan is payable by the relevant Borrower on the last day of each
Interest Period for that Loan.
9.3 DEFAULT INTEREST
(a) If a Borrower fails to pay any amount payable by it under the Finance
Documents, it shall forthwith on demand by the Bank pay interest on the
overdue amount from the due date up to the date of actual payment, as
well after as before judgment, at a rate (the "DEFAULT RATE") determined
by the Bank to be one per cent. per annum above:
(i) the rate on the overdue amount under Clause 9.1 (Interest rate)
immediately before the due date (if of principal and for so long
as the Interest Period for which that rate applies continues); and
(ii) if sub-paragraph (i) does not apply, the rate which would have
been payable if the overdue amount had, during the period of
non-payment, constituted a Loan in the currency of the overdue
amount for such successive Interest Periods of such duration as
the Bank may determine (each a "DESIGNATED INTEREST PERIOD").
(b) The default rate will be determined on each Business Day or the first
day of, or two Business Days before the first day of, the relevant
Designated Interest Period, as appropriate.
(c) If the Bank determines that deposits in the currency of the overdue
amount are not at the relevant time being made available by it to
leading banks in the London interbank market, the default rate will be
determined by reference to the cost of funds to the Bank from whatever
sources it selects.
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(d) Default interest will be compounded at the end of each Designated
Interest Period.
9.4 NOTIFICATION OF RATES OF INTEREST
The Bank shall promptly notify each relevant Borrower of the
determination of a rate of interest under this Agreement.
10. SELECTION OF OPTIONAL CURRENCIES
10.1 SELECTION FOR TERM LOAN
(a) A Borrower may select the currency of a Term Loan for an Interest Period
in either the relevant Request or, if the Term Loan is outstanding, a
notice received by the Bank not later than 9 a.m. on the Business Day
before the commencement of that Interest Period. In the latter case, a
Borrower may specify whether that Term Loan is to be denominated in more
than one currency, and, if so, the amount in Sterling of each such
currency (being a minimum Original Sterling Amount of L1,000,000 or an
integral multiple of L1,000,000 or the balance of the Term Loan, if
more).
(b) The currency of each Term Loan must be Sterling or an Optional Currency.
(c) If a Borrower fails to give a notice in respect of an outstanding Term
Loan in accordance with paragraph (a) above, that Term Loan will remain
denominated for its next Interest Period in the same currency in which
it is then denominated.
(d) Each part of a Term Loan which is to be denominated in a different
currency from any other part of that Loan shall be treated as a separate
Term Loan.
(e) No Borrower may choose a currency if as a result the Term Loans would be
denominated at any one time in more than five currencies.
10.2 SELECTION FOR A REVOLVING CREDIT LOAN
(a) A Borrower shall select the currency of a Revolving Credit Loan in the
relevant Request.
(b) The currency of each Revolving Credit Loan must be Sterling or an
Optional Currency.
(c) A Borrower may not choose a currency if as a result the Revolving Credit
Loans would be denominated at any one time in more than five currencies.
10.3 REVOCATION OF CURRENCY
If, before 9.30 a.m. on any Rate Fixing Day, the Bank determines that,
in relation to any Optional Currency other than U.S. Dollars:
(a) it is impracticable for the Bank to fund the Loan in the relevant
Optional Currency during that Interest Period in the ordinary
course of business in the London interbank market; and/or
(b) the use of the proposed Optional Currency would be reasonably
likely to contravene any law or regulation,
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the Bank shall give notice to the relevant Borrower to that effect
before 10.00 a.m. on that day. In this event:
(i) the Borrower and the Bank may agree that the Loan shall not be
made; or
(ii) in the absence of agreement:
(1) the Loan shall be denominated in Sterling during that
Interest Period; and
(2) in the definition of "LIBOR" (insofar as it applies to that
Loan) in Clause 1.1 (Definitions) there shall be substituted
for the time "11.00 a.m." the time "1.00 p.m.".
11. AMOUNT OF OPTIONAL CURRENCIES FOR TERM LOANS
11.1 DRAWDOWNS
If a Term Loan is to be drawn down in an Optional Currency, the amount
of that Term Loan will be determined by converting the Original Sterling
Amount into that Optional Currency of that Term Loan on the basis of the
Bank's Spot Rate of Exchange one Business Day before its Drawdown Date.
11.2 CHANGE OF CURRENCY
(a) If a Term Loan is to be continued during its next Interest Period in a
different currency (the "NEW CURRENCY") from that in which it is
currently denominated, the Term Loan shall be repaid by the relevant
Borrower in full at the end of its current Interest Period in the
currency in which it is then denominated and, subject to the terms of
this Agreement, shall forthwith be re-advanced by the Bank in the new
currency.
(b) If the new currency is Sterling, the amount of that Term Loan will be
the Original Sterling Amount of that Term Loan for that Interest Period.
(c) If the new currency is an Optional Currency, the amount of that Term
Loan will be determined by converting into the new currency the Original
Sterling Amount of that Term Loan on the basis of the Bank's Spot Rate
of Exchange three Business Days before the commencement of that Interest
Period.
11.3 SAME OPTIONAL CURRENCY
(a) If a Term Loan is to be continued during its next Interest Period in the
same Optional Currency as that in which it is denominated during its
current Interest Period, there shall be calculated the difference
between the amount of the Term Loan (in that Optional Currency) for the
current Interest Period and for the next Interest Period. The amount of
the Term Loan for the next Interest Period will be determined by
notionally converting into that Optional Currency the Original Sterling
Amount of the Term Loan on the basis of the Bank's Spot Rate of Exchange
three Business Days before the commencement of that Interest Period.
(b) At the end of the current Interest Period (but subject always to
paragraph (c) below):
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(i) if the amount of the Term Loan (in that Optional Currency) for the
next Interest Period is less than for the preceding Interest
Period, the Borrower shall repay the difference; or
(ii) if the amount of the Term Loan for the next Interest Period is
greater, the Bank shall forthwith make available to that Borrower
the difference.
(c) If the Bank's Spot Rate of Exchange for the next Interest Period shows
an appreciation or depreciation of the Optional Currency against
Sterling of less than five per cent. when compared with the Original
Exchange Rate, no amounts are payable in respect of the difference. In
this Clause 11 (Amount of Optional Currencies for Term Loans) "ORIGINAL
EXCHANGE RATE" means the Bank's Spot Rate of Exchange used for
determining the amount of the Optional Currency for the Interest Period
which is the later of the following:
(i) the Interest Period during which the Term Loan was first
denominated in that Optional Currency if the Term Loan has since
then remained denominated in that Optional Currency; and
(ii) the most recent Interest Period immediately prior to which a
difference was required to be paid under this Clause 11.3.
11.4 PREPAYMENTS AND REPAYMENTS
If a Term Loan is to be repaid or prepaid by reference to an Original
Sterling Amount, the Optional Currency amount to be repaid or prepaid
shall be determined by reference to the Bank's Spot Rate of Exchange
last used for determining the Optional Currency amount of that Term Loan
under Clause 11 or, if applicable, the Original Exchange Rate.
11.5 NOTIFICATION
The Bank shall notify the Borrower of Optional Currency amounts (and the
applicable Bank's Spot Rate of Exchange) promptly after they are
ascertained.
12. PAYMENTS
12.1 PLACE
All payments by a Party under the Finance Documents shall be made to the
relevant Party to its account at such office or bank:
(a) in the principal financial centre of the country of the relevant
currency; or
(b) in the case of euros, in London or such other financial centre as
the payee may notify to the payer for this purpose.
12.2 FUNDS
Payments under the Finance Documents to the Bank shall be made for value
on the due date at such times and in such funds as the Bank may specify
as being customary at the time for the settlement of transactions in the
relevant currency in the place for payment.
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12.3 CURRENCY
(a) A repayment or prepayment of a Loan or any part of a Loan is payable in
the currency in which the Loan is denominated on its due date.
(b) Interest is payable in the currency in which the relevant amount in
respect of which it is payable is denominated.
(c) Amounts payable in respect of costs, expenses, taxes and the like are
payable in the currency in which they are incurred.
(d) Any other amount payable under the Finance Documents is, except as
otherwise provided in this Agreement, payable in Sterling.
12.4 SET-OFF AND COUNTERCLAIM
All payments made by a Borrower under the Finance Documents shall be
made without set-off or counterclaim.
12.5 NON-BUSINESS DAYS
(a) If a payment under the Finance Documents is due on a day which is not a
Business Day, the due date for that payment shall instead be the next
Business Day in the same calendar month (if there is one) or the
preceding Business Day (if there is not).
(b) During any extension of the due date for payment of any principal under
this Agreement interest is payable on the principal at the rate payable
on the original due date.
12.6 NETTING OF PAYMENTS
(a) Notwithstanding Clauses 5.2(h) (Completion of Requests), 6.2 (Revolving
Credit Loan Repayment) and 12.1 (Place) to 12.3 (Currency) (inclusive)
if on any date an amount (the "FIRST AMOUNT") is to be advanced or paid
by the Bank under this Agreement and an amount (the "SECOND AMOUNT") is
due from a Borrower to the Bank under this Agreement in the same
currency, the relevant Borrower instructs the Bank to apply the first
amount in or towards payment of the second amount; and
(b) The Bank shall remain obliged to advance any excess (or, as the case may
be, the Borrowers shall remain obliged to pay any shortfall) in
accordance with this Clause 12. Nothing in this Clause 12.6 shall be
effective to create a charge.
13. TAXES
13.1 GROSS-UP AND MITIGATION
(a) All payments by a Borrower under the Finance Documents shall be made
without any deduction and free and clear of and without any deduction
for or on account of any taxes, except to the extent that the Borrower
is required by law to make payment subject to any taxes. If, pursuant to
any law or regulation, any tax or amounts in respect of tax must be
deducted, or any other deductions must be made, from any amounts payable
or paid by a Borrower under the Finance Documents, the Borrower shall
(subject to sub-paragraph (b) below) pay such additional amounts as may
be necessary to ensure that the Bank receives a
22
net amount equal to the full amount which it would have received had
payment not been made subject to tax or any other deduction.
(b) AAC shall not be required to pay any additional amount under this Clause
13.1 to the extent that such additional amount results from the Bank
failing to file duly completed and signed copies of Form 1001 in
accordance with Clause 13.4 (US Taxes) within 13 days of the date of
this Agreement.
(c) If circumstances arise which would, or would upon the giving of notice,
result in a Borrower being obliged to pay additional amounts pursuant to
this Clause 13 then, without in any way limiting, reducing or otherwise
qualifying the Borrowers' obligations under this Clause the Bank shall,
upon written request from Aegis, take such reasonable steps as may be
open to it to mitigate the effects of such circumstances, provided
always that the Bank shall not be under any obligation to take such
steps if, in the Bank's reasonable opinion, it would or might have an
adverse effect upon its business, operations or financial condition or
the management of its tax affairs or its return in relation to a Loan.
13.2 TAX RECEIPTS
All taxes required by law to be deducted or withheld by a Borrower from
any amounts paid or payable under the Finance Documents shall be paid to
the appropriate authority by the relevant Borrower when due and the
Borrower shall, as soon as reasonably practicable following the payment
being made, deliver to the Bank evidence (including all relevant tax
receipts) that the payment has been duly remitted to the appropriate
authority.
13.3 TAX CREDITS
(a) If:
(i) a Borrower makes a payment under this Clause 13 (a "TAX PAYMENT")
in respect of any payment to or for the account of the Bank under
this Agreement; and
(ii) the Bank obtains a refund of tax or obtains and uses a credit
against tax on its overall net income (a "TAX CREDIT") which the
Bank is able to identify as attributable to that Tax payment,
then the Bank shall reimburse that Borrower such amount as the Bank
reasonably determines to be the proportion of that Tax Credit which will
leave the Bank (after that reimbursement) in no better or worse position
than it would have been in if no Tax Payment had been required.
(b) Subject to Clause 13.1(c) (Gross-up and mitigation) the Bank has an
absolute discretion as to whether to claim any Tax Credit (and, if it
does claim, the extent, order and manner in which it does so) and
whether any amount is due from it under this Clause 13.3 (and, if so,
what amount and when). The Bank is not obliged to disclose to a
Borrower any information regarding its tax affairs and computations.
13.4 US TAXES
The Bank shall submit, as soon as reasonably practicable after the date
of this Agreement and in any event within 13 days of this Agreement in
duplicate to AAC duly completed and
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signed copies of either Form 1001 (or, in the case of payment made after
31st December, 1999, Form W-8, if applicable under then current law) of
the United States Internal Revenue Service (relating to the Bank and
claiming complete exemption from withholding on all amounts (to which
such withholding would otherwise apply) to be received by Bank,
including fees, pursuant to this Agreement in connection with any
borrowing by AAC) as a result of a tax treaty concluded with the United
States or Form 4224 of the United States Internal Revenue Service
(relating to all amounts (to which such withholding would otherwise
apply) to be received by the Bank, including fees, pursuant to this
Agreement in connection with any borrowing by AAC. Thereafter and from
time to time upon the reasonable request of AAC, the Bank shall (if and
to the extent that it is entitled to do so under applicable law) submit
to AAC such additional duly completed and signed copies of one or the
other such forms (or such successor forms as shall be adopted from time
to time by the relevant United States taxation authorities) or any
additional information, in each case as may be required under then
current United States law or regulations to claim the inapplicability of
or exemption from United States withholding taxes on payments in respect
of all amounts (to which such withholding would otherwise apply) to be
received by the Bank, including fees, pursuant to this Agreement in
connection with any borrowing by AAC. Nothing in this Clause 13.3
obliges the Bank to disclose to AAC any information relating to its tax
affairs and computations or any other confidential information.
14. MARKET DISRUPTION
14.1 ABSENCE OF QUOTATIONS
If, in relation to any proposed Loan, the Bank determines that, by
reason of circumstances affecting the London interbank market generally,
adequate and fair means do not exist for ascertaining the applicable
LIBOR it shall promptly notify Aegis of the fact and that this Clause 14
is in operation.
14.2 MARKET DISRUPTION
If a notification under Clause 14.1 (Absence of quotations) applies to a
Loan which has not been made, that Loan shall, notwithstanding such
notification, still be made. However, within five Business Days of
receipt of the notification, Aegis and the Bank shall enter into
negotiations for a period of not more than 14 days with a view to
agreeing a substitute basis for determining the rate of interest and/or
funding applicable to that (and to the extent required) any future Loan
to be denominated in the currency of the affected Loan. Any substitute
basis agreed shall be binding on all the Parties.
14.3 ALTERNATIVE BASIS
If a notification under Clause 14.1 (Absence of quotations) applies to a
Loan which is outstanding, then, for the purpose of calculating the rate
of interest on that Loan pursuant to Clause 9.1 (Interest rate):-
(a) within five Business Days of receipt of the notification, Aegis
and the Bank shall enter into negotiations for a period of not
more than 30 days with a view to agreeing an alternative basis for
determining the rate of interest and/or funding applicable to that
Loan and/or any other Loans denominated or to be denominated in
the currency of that Loan;
24
(b) any alternative basis agreed under paragraph (a) above shall be
binding on all the Parties;
(c) if no alternative basis is agreed, the Bank shall certify on or
before the last day of the Interest Period to which the
notification relates an alternative basis for maintaining that
Loan;
(d) any such alternative basis may include an alternative method of
fixing the interest rate, or alternative Interest Periods but it
must reflect the cost to the Bank of funding the Loan from
whatever sources it may reasonably select plus the Margin plus, in
the case of a Loan denominated in Sterling, any applicable
Mandatory Cost; and
(e) each alternative basis so certified shall be binding on the
Borrowers and the Bank and treated as part of this Agreement.
15. INCREASED COSTS
15.1 INCREASED COSTS
(a) Subject to Clause 15.2 (Exceptions), Aegis shall forthwith on demand by
the Bank pay the Bank the amount of any increased cost incurred by it or
any of its Affiliates as a result of
(iii) the introduction of, or any change in, or any change in the
interpretation or application of, any law or regulation; or
(iv) compliance with any regulation made after the date of this
Agreement,
(including any law or regulation relating to taxation or reserve asset,
special deposit, cash ratio, liquidity or capital adequacy requirements
or any other form of banking or monetary control).
(b) in this agreement "INCREASED COST" means:
(i) an additional cost incurred by the Bank or any of its Affiliates
as a result of it having entered into, or performing, maintaining
or funding its obligations under, this Agreement; or
(ii) that portion of an additional cost incurred by the Bank or any of
its Affiliates in making, funding or maintaining all or any
advances comprised in a class of advances formed by or including
the Loans made or to be made under this Agreement as is
attributable to it making, funding or maintaining the Loans; or
(v) a reduction in any amount payable to the Bank or any of its
Affiliates or the effective return to the Bank or any of its
Affiliates under this Agreement or (to the extent that it is
attributable to this Agreement) on its capital; or
(vi) the amount of any payment made by the Bank or any of its
Affiliates, or the amount of interest or other return foregone by
the Bank or any of its Affiliates, calculated by reference to any
amount received or receivable by the Bank or any of its Affiliates
from any other Party under this Agreement.
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15.2 EXCEPTIONS
Clause 15.1 (Increased costs) does not apply to any increased cost:
(a) compensated for by the payment of the Mandatory Cost;
(b) compensated for by the operation of Clause 13 (Taxes);
(c) attributable to any change in the rate of, or change in the basis
of calculating, tax on the overall net income of the Bank (or the
overall net income of a division or branch of the Bank) imposed in
the jurisdiction in which its principal office is situate.
16. ILLEGALITY
If it is or becomes unlawful in any jurisdiction for the Bank to give
effect to any of its obligations as contemplated by this Agreement or to
fund or maintain any Loan, then:
(a) the Bank may notify Aegis accordingly; and
(b) (i) each Borrower shall forthwith prepay all the Loans made to
it; and
(ii) the Total Commitments shall forthwith be cancelled.
17. GUARANTEE
17.1 GUARANTEE
Aegis irrevocably and unconditionally:
(a) as principal obligor, guarantees to the Bank prompt performance by
AAC of all its obligations under the Finance Documents;
(b) undertakes with the Bank that whenever AAC does not pay any amount
when due under or in connection with any Finance Document, Aegis
shall forthwith on demand by the Bank pay that amount as if Aegis
instead of AAC were expressed to be the principal obligor; and
(c) indemnifies the Bank on demand against any loss or liability
suffered by it if any obligation guaranteed by Aegis is or becomes
unenforceable, invalid or illegal.
17.2 CONTINUING GUARANTEE
This guarantee is a continuing guarantee and will extend to the ultimate
balance of all sums payable by AAC under the Finance Documents,
regardless of any intermediate payment or discharge in whole or in part.
17.3 REINSTATEMENT
(a) Where any discharge (whether in respect of the obligations of either
Borrower or any security for those obligations or otherwise) is made in
whole or in part or any arrangement is made on the faith of any payment,
security or other disposition which is avoided or must be restored
26
on insolvency, liquidation or otherwise without limitation, the
liability of Aegis under this Clause 17 shall continue as if the
discharge or arrangement had not occurred.
(b) The Bank may concede or compromise any claim that any payment, security
or other disposition is liable to avoidance or restoration.
17.4 WAIVER OF DEFENCES
The obligations of Aegis under this Clause 17 will not be affected by
any act, omission, matter or thing which, but for this provision, would
reduce, release or prejudice any of its obligations under this Clause 17
or prejudice or diminish those obligations in whole or in part,
including (whether or not known to it or the Bank):
(a) any time or waiver granted to, or composition with, AAC or other
person;
(b) the release of AAC or any other person under the terms of any
composition or arrangement with any creditors of any member of the
Group;
(c) the taking, variation, compromise, exchange, renewal or release
of, or refusal or neglect to perfect, take up or enforce, any
rights against, or security over assets of, AAC or other person or
any non-presentation or non-observance of any formality or other
requirement in respect of any instrument or any failure to realise
the full value of any security;
(d) any incapacity or lack of powers, authority or legal personality
of or dissolution or change in the members or status of AAC or any
other person;
(e) any variation (however fundamental) or replacement of a Finance
Document or any other document or security so that references to
that Finance Document in this Clause 17 shall include each
variation or replacement;
(f) any unenforceability, illegality or invalidity of any obligation
of any person under any Finance Document or any other document or
security, to the intent that Aegis's obligations under this Clause
17 shall remain in full force and its guarantee be construed
accordingly, as if there were no unenforceability, illegality or
invalidity;
(g) any postponement, discharge, reduction, non-provability or other
similar circumstance affecting any obligation of AAC under a
Finance Document resulting from any insolvency, liquidation or
dissolution proceedings or from any law, regulation or order so
that each such obligation shall for the purposes of Aegis's
obligations under this Clause 17 shall be construed as if there
were no such circumstance.
17.5 IMMEDIATE RECOURSE
Aegis waives any right it may have of first requiring the Bank (or any
trustee or agent on its behalf) to proceed against or enforce any other
rights or security or claim payment from any person before claiming from
Aegis under this Clause 17.
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17.6 APPROPRIATIONS
Until all amounts which may be or become payable by the Borrowers under
or in connection with the Finance Documents have been irrevocably paid
in full, the Bank (or any trustee or agent on its behalf) may:
(a) refrain from applying or enforcing any other moneys, security or
rights held or received by the Bank (or any trustee or agent on
its behalf) in respect of those amounts, or apply and enforce the
same in such manner and order as it sees fit (whether against
those amounts or otherwise) and Aegis shall not be entitled to the
benefit of the same; and
(b) hold in a suspense account bearing interest at normal commercial
rates any moneys received from Aegis or on account of Aegis's
liability under this Clause 17, without liability to pay interest
on those moneys.
17.7 NON-COMPETITION
Until all amounts which may be or become payable by the Borrowers under
or in connection with the Finance Documents have been irrevocably paid
in full, Aegis shall not, after a claim has been made or by virtue of
any payment or performance by it under this Clause 17:
(a) be subrogated to any rights, security or moneys held, received or
receivable by the Bank (or any trustee or agent on its behalf) or
be entitled to any right of contribution or indemnity in respect
of any payment made or moneys received on account of Aegis's
liability under this Clause 17;
(b) claim, rank, prove or vote as a creditor of AAC or its estate in
competition with the Bank (or any trustee or agent on its behalf);
or
(c) receive, claim or have the benefit of any payment, distribution or
security from or on account of AAC, or exercise any right of
set-off as against AAC,
unless the Bank otherwise directs. Aegis shall hold in trust for and
forthwith pay or transfer to the Bank any payment or distribution or
benefit of security received by it contrary to this Clause 17.7 or as
directed by the Bank.
17.8 ADDITIONAL SECURITY
This guarantee is in addition to and is not in any way prejudiced by any
other security now or hereafter held by the Bank.
18. REPRESENTATIONS AND WARRANTIES
18.1 REPRESENTATIONS AND WARRANTIES
Each Borrower makes the representations and warranties set out in this
Clause 18 to the Bank.
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18.2 STATUS
(a) In the case of Aegis it is a limited liability company and, in the case
of AAC, it is a corporation, each of which is duly incorporated and
validly existing under the laws of the jurisdiction of its
incorporation; and
(b) it has the power to own its assets and carry on its business as it is
being conducted and to own its respective property and other assets.
18.3 POWERS AND AUTHORITY
It has the power to execute, deliver and perform its respective
obligations under, and has taken all necessary corporate action to
authorise the execution and delivery of and the performance of its
respective obligations under this Agreement (including the utilisation
of the Facilities), each other Finance Document to which it is a party
and no limitation on the powers of such Borrower to borrow will be
exceeded as a result of any borrowing or utilisation under this
Agreement.
18.4 LEGAL VALIDITY
Each Finance Document to which it is or will be a party constitutes, or
when executed in accordance with its terms will constitute, its legal,
valid and binding obligation.
18.5 NON-CONFLICT
The entry into and performance by it of, and the transactions
contemplated by, the Finance Documents do not and will not:
(a) breach any law, regulation, statute, order, decree or obligation
to which it or any of its assets is subject; or
(b) breach any provision of its Memorandum and Articles of
Association, statutes or other relevant constitutional documents;
or
(c) give cause for acceleration of any of its other indebtedness or
result in the existence of or oblige it to create any Security
Interest over all or any of its present or future revenues or
assets.
18.6 NO DEFAULT
(a) No Default is outstanding or would result from the making of any Loan;
and
(b) Neither Borrower is in default under any agreement, instrument,
arrangement, obligation or duty to which it is a party or by which it is
or may be bound which in any such case could reasonably be expected to
result in a material adverse effect.
18.7 AUTHORIZATIONS
All actions, licences, consents, exemptions, registrations and filings
with all governmental or any other regulatory body, authority, bureau or
agency necessary for the validity, performance or enforceability of the
Finance Documents have been or will be obtained and are and will be in
full force and effect.
29
18.8 ACCOUNTS
In the case of Aegis, the audited consolidated accounts of the Group
most recently delivered to the Bank (which, at the date of this
Agreement, are the Original Group Accounts):
(i) have been prepared in all material respects in accordance with
accounting principles and practices generally accepted in the U.K.
consistently (save to the extent of changes in those generally
accepted accounting principles and basis or as disclosed in such
financial statements) applied; and
(ii) (together with the notes to such accounts) give a true and fair
view of the consolidated financial condition of the Group as at
the date to which they were drawn up.
18.9 LITIGATION
Save for matters disclosed to the Bank in writing prior to the date of
this Agreement there is no action, litigation, lawsuit or proceeding
taking place or to the best of its knowledge and belief pending or
threatened against or affecting it or any other member of the Group
before any court, judicial, administrative, arbitral or governmental
body or agency which in any such case could reasonably be expected to
result in a material adverse effect.
18.10 INFORMATION
The assumptions underlying the pro-forma cashflow forecasts for the
Group both before and after the completion of the acquisition of the
Market Facts Shares for the financial years 1999, 2000 and 2001 provided
to the Bank by Aegis prior to the date of this Agreement were made or
held in good faith and were based on reasonable grounds.
18.11 ERISA
(a) Each member of the Controlled Group has fulfilled its obligations under
the minimum funding standards of ERISA and the Code with respect to each
Plan to which such minimum funding standards apply.
(b) Each member of the Controlled Group is in compliance in all material
respects with the presently applicable provisions of ERISA, and the Code
with respect to each Plan.
(c) Each Plan complies in all respects with all applicable requirements of
law and regulations. No Reportable Event has occurred with respect to
any Plan, and no steps have been taken to reorganise or terminate any
Plan or by the Borrowers or any member of the Controlled Group to effect
a complete or partial withdrawal from any Multiemployer Plan.
(d) No member of the Controlled Group has:
(i) sought a waiver of the minimum funding standard under Section 412
of the Code in respect of any Plan;
(ii) failed to make any contribution or payment to any Plan, or made
any amendment to any Plan, and no other event, transaction or
condition has occurred which has result
30
or could result in the imposition of a lien or the posting of a
bond or other security under ERISA or the Code; or
(iii) incurred any liability under Title IV of ERISA other than a
liability to the PBGC for premiums under Section 4007 of ERISA.
18.12 U.S. REGULATORY REQUIREMENTS
(a) AAC is not an investment company under the United States Investment
Company Act of 1940, nor is it exempt from the provisions of that Act
pursuant to an exemption under that Act, all of the conditions of which
have been and are being fulfilled.
(b) None of the transactions contemplated in this Agreement (including,
without limitation, the borrowings hereunder and the use of the proceeds
thereof) will violate or result in a violation of Section 7 of the
Securities Exchange Act of 1934 (or any regulations issued pursuant
thereto, including, without limitation, Regulations T, U and X).
18.13 PUBLIC UTILITY HOLDING COMPANY ACT
Neither AAC nor any of its Subsidiaries is a "holding company", or an
"affiliate" of a "holding company" or a "subsidiary company" of a
"holding company", within the meaning of the United States of America
Public Utility Holding Company Act of 1935.
18.14 MATERIAL ADVERSE CHANGE
There has been no material adverse change in the financial condition,
business or operations of the Group, taken as a whole, since the date to
which the accounts referred to in Clause 18.8 (Accounts) were drawn up.
18.15 TIMES FOR MAKING REPRESENTATIONS AND WARRANTIES
The representations and warranties set out:
(a) in Clauses 18.2 (Status) to 18.14 (Material Adverse Change)
(inclusive) are made on the date of this Agreement; and
(b) in Clauses 18.2 (Status), 18.3 (Powers and authority), 18.4 (Legal
validity), 18.5(a) and (b) (Non-conflict), 18.6(b) (No default),
18.7 (Authorisations) and 18.11 (ERISA) to 18.13 (Public Utility
Holding Company Act) (inclusive) are deemed to be repeated by each
Borrower on the first day of each Interest Period and in respect
of the Clauses referred to in Clause 4.2(a)(i) on each Drawdown
Date in each case with reference to the facts and circumstances
then existing.
19. UNDERTAKINGS
19.1 DURATION
The undertakings in this Clause 19 remain in force from the date of this
Agreement for so long as any amount is or may be outstanding under this
Agreement or any Commitment is in force.
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19.2 FINANCIAL INFORMATION
Aegis shall supply to the Bank:
(a) as soon as the same are available (and in any event within 90 days
of 30th June,1999, the unaudited consolidated accounts of the
Group for that half-year; and
(b) together with the accounts specified in paragraph (a) above, a
certificate signed by two of its senior officers setting out in
reasonable detail computations establishing compliance with Clause
19.15 (Financial covenants) as at the date to which those accounts
were drawn up.
19.3 INFORMATION - MISCELLANEOUS
Aegis shall supply to the Bank:
(a) promptly upon becoming aware of them, details of any litigation,
arbitration or administrative proceedings which are current,
threatened or pending, and which would reasonably be expected, if
adversely determined, to have a material adverse effect.
(b) promptly, such further information in the possession or control of
any member of the Group regarding its financial condition and
operations as the Bank may reasonably request; and
(c) if any member of the Controlled Group:-
(i) gives or is required to give notice to the PBGC of any
Reportable Event with respect to any Plan which might
constitute grounds for a termination of that Plan under
Title IV of ERISA, or knows that the plan administrator of
any Plan has given notice of that Reportable Event, a copy
of the notice of that Reportable Event given or required to
be given to the PBGC;
(ii) receives notice of complete or partial withdrawal liability
under Title IV of ERISA or notice that any Multiemployer
Plan is in reogranization, is insolvent or has been
terminated, a copy of that notice;
(iii) receives notice from the PBGC under Title IV of ERISA of an
intent to terminate, impose liability (other than for
premiums under Section 4007 of ERISA) in respect of, or
appoint a trustee to administer, any Plan, a copy of that
notice;
(iv) applies for a waiver of the minimum funding standard under
Section 412 of the Code, a copy of that application;
(v) gives notice of intent to terminate any Plan under Section
4041(c) of ERISA, a copy of that notice and any other
information filed with the PBGC;
(vi) gives notice of withdrawal from any Plan pursuant to Section
4063 of ERISA, a copy of that notice; or
32
(vii) fails to make any payment or contribution to any Plan or
makes any amendment to any Plan which has resulted or could
result in the imposition of a Security Interest or the
posting of a bond or other security, a certificate of the
chief financial officer or the chief accounting officer of
AAC setting forth details of that occurrence and action, if
any, which AAC or applicable member of the Controlled Group
is required or proposes to take.
19.4 NOTIFICATION OF DEFAULT
Each Borrower shall notify the Bank of any Default (and the steps, if
any, being taken to remedy it) promptly upon its occurrence.
19.5 COMPLIANCE CERTIFICATES
Aegis shall supply to the Bank:
(a) together with the accounts specified in Clause 19.2 (Financial
information); and
(b) as soon as reasonably practicable following a request by the Bank,
a certificate signed by two of its senior officers on its behalf
certifying that no Default is outstanding or, if a Default is
outstanding, specifying the Default and the steps, if any, being taken
to remedy it.
19.6 AUTHORIZATIONS
Each Borrower shall promptly:
(a) obtain, maintain and comply with the terms of; and
(b) supply certified copies to the Bank of,
any authorization required under any law or regulation to enable it to
perform its obligations under, or for the validity or enforceability of,
any Finance Document.
19.7 PARI PASSU RANKING
Each Borrower shall procure that its obligations and liabilities under
the Finance Documents do and will rank at least PARI PASSU with all its
other present and future unsecured indebtedness other than indebtedness
which is mandatorily preferred solely by applicable law and which
preference does not arise as a result of Security Interests created
pursuant to an agreement.
19.8 NEGATIVE PLEDGE
(a) Neither Borrower shall, and Aegis shall procure that no other member of
the Group will, create or permit to subsist any Security Interest on any
of its assets.
(b) Paragraph (a) does not apply to:
33
(i) any Security Interest disclosed to the Bank and permitted by the
Bank in writing or any Security Interest which exists at the date
of this Agreement and which secures amounts due under the Existing
Facility Agreement; or
(ii) any lien arising by operation of law in the ordinary course of
business; or
(iii) any title retention arrangements arising in the ordinary course of
business; or
(iv) any finance leases entered into in the ordinary course of the
business; or
(v) any Security Interest created in substitution for any Security
Interest permitted by this Clause 19.8 provided such Security
Interest is over the same asset and the principal amount so
secured does not exceed the principal amount secured on such asset
immediately prior to such substitution; or
(vi) netting arrangements arising in the ordinary course of banking
business; or
(vii) any Security Interest where the total amount of indebtedness
secured by Security Interests not otherwise permitted by this
Clause 19.8(b) does not exceed L20,000,000 or the equivalent in
Optional Currencies at the time such Security Interest is created
and provided that (A) no Security Interest of the type referred to
in paragraph (vi) above shall be permitted by this paragraph (vii)
and (B) the aggregate of indebtedness secured by Security
Interests permitted by this paragraph (vii) does not exceed
L20,000,000. Aegis shall notify the Bank in writing in advance of
the creation of any such Security Interest specifying that such
Security Interest is to be created in accordance with this
paragraph (vii); or
(viii) any Security Interest affecting, or over, assets acquired by any
member of the Group which is in existence prior to such
acquisition provided that (a) such Security Interest was not
entered into in contemplation of such acquisition and (b) the same
are discharged and unconditionally released within 6 months of the
date of such acquisition; or
(ix) any Security Interest required to secure the provision by third
parties (other than the Bank) of guarantees in respect of media
space purchased or booked by members of the Group from media
owners or associations outside the United Kingdom; or
(x) Security Interests where the total amount of indebtedness secured
does not exceed DM 16,000,000 to Commerzbank AG Frankfurt branch
or any other bank in Germany in each case which provides
facilities to any member of the Group incorporated in Germany.
19.9 DISPOSALS
(a) Neither Borrower shall, and Aegis shall procure that no Principal
Subsidiary will, either in a single transaction or in a series of
transactions, whether related or not and whether voluntarily or
involuntarily, sell, transfer, grant or lease or otherwise dispose of or
part with possession of all or any substantial part of its assets.
(b) Paragraph (a) does not apply to:
34
(i) disposals made in the ordinary course of business of the disposing
entity; or
(ii) disposals of assets in exchange for other assets comparable or
superior as to type, value and quality; or
(iii) disposals with the prior consent of the Bank; or
(iv) disposals which are bona fide and on an arm's length basis;
Provided that the following shall not be treated as a disposition or
parting with possession or ownership for these purposes:
(1) any payment of cash in the ordinary course of business or as
consideration for any acquisition or capital expenditure permitted
by this Agreement;
(2) any disposition or parting with possession or ownership to the
extent that the same is effected by one member of the Group to
another member of the Group (provided that if such member of the
Group is a Principal Subsidiary, the same shall be to another
Principal Subsidiary);
(3) any disposition or parting with possession or ownership to the
extent that the same occurs pursuant to any solvent winding up,
dissolution or other similar process of a member of the Group
(made with the prior consent of the Bank (such consent not to be
unreasonably withheld or delayed)) or any distribution to the
shareholders of a member of the Group in accordance with their
rights;
(4) granting of any security permitted by this Agreement;
(5) any dissolution, voluntary liquidation, winding-up, striking-off
or removal from the register (or other event analogous to any of
the same in any relevant jurisdiction) of any member of the Group
(other than a Principal Subsidiary) where such event occurs at the
instigation of one of the relevant member's parent undertakings.
19.10 CHANGE OF BUSINESS
Aegis shall procure that no substantial change is made to the general
nature or scope of the business of Aegis or any Principal Subsidiary
from that carried on at the date of this Agreement which would be
reasonably likely to have a material adverse effect on the ability of
Aegis to perform its obligations under this Agreement.
19.11 MERGERS AND ACQUISITIONS
Neither Borrower shall enter into any amalgamation, demerger, merger or
reconstruction.
19.12 ERISA
No Borrower will, and Aegis will procure that no member of the
Controlled Group will:
(a) fail to make payment when due of all amounts due as a contribution
to any Plan; or
35
(b) engage in any transaction in connection with which a Borrower or
any member of the Controlled Group could be subjected to either a
civil penalty assessed pursuant to Section 502(i) of ERISA, a tax
imposed by Section 4975 of the Code or breach of fiduciary duty
liability damages,
if, the failure to make such payment or such penalty, tax or liability,
as the case may be, would have a material adverse effect.
19.13 THE OFFER
(a) Neither Borrower shall issue any press release or make any statement
during the course of the Offer which contains any information or
reference concerning this Agreement or the Bank without first obtaining
prior approval of the information or reference to the Bank, in each case
such approval not to be unreasonably withheld or delayed except that
such prior approval of the Bank will not be required if a Borrower is
required by law or regulation to make a public disclosure, statement or
filing in respect of the Offer and is unable, after having made all
reasonable efforts to do so, to obtain the prior approval of the Bank in
relation to the contents of such disclosure or statement; and
(b) Each Borrower shall provide the Bank with such information regarding the
progress of the Offer and the Vendor Placing as it may reasonably
request.
19.14 APPLICATION OF PROCEEDS
Aegis shall procure that within four Business Days of the Placing
Agreement becoming wholly unconditional, AAC shall be capitalised or
otherwise placed in funds of an amount which is not less than
L100,000,000 and AAC shall apply such amount within two Business Days
of its receipt to prepay all or part of the Term Loans made to it.
19.15 FINANCIAL COVENANTS
(a) In this Clause 19.15:
"CONSOLIDATED ADJUSTED CASH FLOW"
means in respect of any period, Consolidated Profits before Interest and
Tax after adding back the depreciation charge and amortisation for
goodwill for such periods and adjusting for capital expenditure, tax
payable and, minority and ordinary dividends paid in such periods, in
each case as determined from the relevant consolidated financial
statements of Aegis delivered or to be delivered pursuant to this
Agreement for such period;
"CONSOLIDATED GROSS FINANCE CHARGES"
means in respect of any period, the aggregate amount of the interest,
commission, fees and other finance charges of whatsoever nature
(excluding any front end fee, agency fee, syndication fee, participation
fee or any similar one off or recurring fee payable) in each case in
respect of Financial Indebtedness (which expression shall not include,
for the avoidance of doubt, any rentals on operating leases) payable by
the Group in respect of such period including, without limitation,
capitalised interest in each case as determined from the relevant
36
consolidated financial statements of Aegis delivered or to be delivered
pursuant to this Agreement for such period;
"CONSOLIDATED PROFITS BEFORE INTEREST AND TAX"
means in respect of any period, the profit on ordinary activities before
taxation of the Group for that period (including, without limitation,
interest receivable) after adding back amortisation for goodwill and
adding back or before providing for the Consolidated Gross Finance
Charges for such period, in each case as determined from the relevant
consolidated financial statements of Aegis delivered or to be delivered
pursuant to this Agreement for such period;
(b) Aegis will procure that:-
(1) the ratio of Consolidated Profits before Interest and Tax to
Consolidated Gross Finance Charges in respect of the half year
ended 30 June, 1999 of the Group shall not be less than 4:1; and
(2) the ratio of Consolidated Adjusted Cash Flow to Consolidated Gross
Finance Charges in respect of half year ended 30 June, 1999 of the
Group shall not be less than 1.50:1.
20. DEFAULT
20.1 EVENTS OF DEFAULT
Each of the events set out in Clauses 20.2 to 20.16 (inclusive) is an
Event of Default (whether or not caused by any reason whatsoever outside
the control of either Borrower or any other person).
20.2 NON-PAYMENT
(a) A Borrower fails to pay any amount of principal on the due date thereof.
(b) A Borrower fails to pay any amount of interest or other sum required to
be paid under this Agreement within three Business Days of the due date.
20.3 BREACH OF OTHER OBLIGATIONS
(a) A Borrower does not comply with any provision of Clause 19.8 (Negative
pledge), Clause 19.9 (Disposals), Clause 19.15 (Financial covenants).
(b) Either Borrower does not comply with any provisions of the Finance
Documents (other than those referred to in paragraph (a) above or in
Clause 20.2 (Non-payment)) and such failure:
(i) (if capable of remedy before the expiry of such period) continues
unremedied for a period of 30 days from the earlier of the date on
which (A) such Borrower has become aware of the failure to comply
or (B) the Bank gives notice to Aegis requiring the same to be
remedied; and
37
(ii) (to the extent that this paragraph (b) applies to any provision of
this Agreement other than a provision set out in Clause 19
(Undertakings) the relevant failure) would have a material adverse
effect.
20.4 MISREPRESENTATION
A representation, warranty or statement made or repeated in or in
connection with any Finance Document or in any document delivered by or
on behalf of either Borrower is incorrect in any material respect when
made or deemed to be made or repeated.
20.5 CROSS-DEFAULT
(a) Any amount of Financial Indebtedness in excess of L3,000,000 (or the
equivalent thereof in any other currency) of a Borrower or any Principal
Subsidiary shall by reason of breach or default become due and payable
or capable of being declared due and payable prior to its stated
maturity or due date therefor; or
(b) any Financial Indebtedness is not paid at the maturity thereof or on the
due date therefor (or within any originally stated applicable grace
period therefor) or, if payable on demand, is not paid on demand; or
(c) a Borrower or any Principal Subsidiary is required pursuant to any
agreement to make any deposit by way of collateral security (in breach
of Clause 19.8 (Negative Pledge)) for its obligations thereunder of any
amount in excess of L3,000,000 (or the equivalent thereof in any other
currency) which in the opinion of the Bank would be likely materially to
adversely affect the ability of either Borrower to comply with its
obligations under or in connection with this Agreement or, as the case
may be, any other Finance Document; or
(d) a Borrower or any Principal Subsidiary fails to pay when due (or within
any originally stated applicable grace period thereafter) any amount in
excess of L3,000,000 (or the equivalent thereof in any other currency)
payable by it under any present or future guarantee or indemnity in
respect of Financial Indebtedness; or
(e) if any Security Interest in respect of Financial Indebtedness created by
either Borrower or any Principal Subsidiary becomes enforceable and
steps are taken to enforce the same (for the avoidance of doubt any
set-off or similar right exercised in the ordinary course of business
and otherwise than as a consequence of a default shall not be regarded
as an enforcement).
20.6 INSOLVENCY AND APPOINTMENT OF LIQUIDATORS
(a) A Borrower or a Principal Subsidiary becomes insolvent or applies for or
consents to or suffers the appointment of a liquidator (other than
pursuant to a solvent reconstruction approved in advance by the Bank or
pursuant to a voluntary liquidation on a solvent basis), receiver,
administrative receiver, administrator, guardian, encumbrancer, trustee
in bankruptcy or similar official of the whole or substantially the
whole of its respective assets, business, property, revenues or
undertaking; or
(b) a Borrower or a Principal Subsidiary takes any proceedings under any law
for adjustment, deferment or rescheduling of its indebtedness or any
part thereof or makes or enters or any proposal is made by a Borrower or
a Principal Subsidiary to make or enter into a general assignment or
arrangement (including without limitation any voluntary arrangement
pursuant to Part I of the Insolvency Act 1986) or composition with or
for the benefit of its creditors or
38
a moratorium shall be declared on any of its indebtedness or any part
thereof; or
(c) any creditor of a Borrower or a Principal Subsidiary exercises a
contractual right in the capacity of creditor to take over the financial
management of a Borrower or a Principal Subsidiary; or
(d) a Borrower or Principal Subsidiary is unable generally to pay its debts
as and when they fall due or shall stop or suspend payment of its debts
generally or any material class of debts or the equivalent of any of the
foregoing shall occur in relation to any a Borrower or a Principal
Subsidiary under the laws of any jurisdiction to which it or any of its
rights, property or assets are subject.
20.7 PRESENTATION OF PETITIONS
Subject to the provisions of this Agreement, a petition is presented or
a meeting is convened or an order is made or resolution is passed or
other action or proceedings are taken with a view to the winding-up,
liquidation, appointment of an administrator or dissolution of a
Borrower or a Principal Subsidiary (except in any such case pursuant to
a voluntary liquidation on a solvent basis of the relevant company) or,
if the equivalent of any of the foregoing shall occur in relation to a
Borrower or a Principal Subsidiary under the laws of any jurisdiction to
which it or any of its rights, property or assets are subject, which in
the case of any petition for the winding-up, liquidation dissolution or
equivalent under the laws of any other such jurisdiction of a Borrower
or a Principal Subsidiary is not withdrawn within 11 Business Days of
the occurrence of such event.
20.8 LITIGATION
Any litigation, arbitration or administrative proceedings are current
or, to the knowledge of a Borrower or Principal Subsidiary, pending or
threatened in which it is reasonably likely that there will be a
determination adverse to the interests of the relevant Borrower or
Principal Subsidiary and which would, if adversely determined, have a
material adverse effect.
20.9 CESSATION OF BUSINESS
Aegis ceases, or threatens to cease, to carry on all or a substantial
part of its business.
20.10 UNLAWFULNESS
It is or becomes unlawful for either Borrower to perform any of its
material obligations under the Finance Documents.
20.11 OWNERSHIP OF AAC
AAC is not or ceases to be a Subsidiary of Aegis.
20.12 MATERIAL ADVERSE CHANGE
Any event or series of events (including without limitation any adverse
change in the Borrowers' business, assets or financial condition) occurs
with respect to a Borrower which would be reasonably likely materially
and adversely to affect the ability of either Borrower to comply with
any of its material obligations under or in connection with this
Agreement.
39
20.13 ERISA
(a) Any member of the Controlled Group fails to pay when due any amount
which it is required to pay under Title IV of ERISA (including, without
limitation, the amount of any contributions required under any Plan or
to meet the minimum funding standard set forth in ERISA with respect to
the Plans) and such amount or such amount when aggregated with any other
such amounts, exceeds U.S. $1,000,000;
(b) notice of intent to terminate a Plan is filed under Title IV of ERISA by
any member of the Controlled Group, any Plan administrator or any
combination of the foregoing if that termination results in an unfunded
liability in excess of U.S. $1,000,000;
(c) the PBGC institutes proceedings under Title IV or ERISA to terminate, to
impose liability (other than for premiums under Section 4007 of ERISA)
in an amount in excess of U.S. $1,000,000 in respect of, or to cause a
trustee to be appointed to administer, any Plan;
(d) there occurs any event, series of events or condition by reason of which
the PBGC would be entitled to obtain a decree adjudicating that any Plan
must be terminated; or
(e) there occurs a complete or partial withdrawal from, or a default (within
the meaning of Section 4219(c)(5) of ERISA) with respect to, one or more
Multiemployer Plans which could cause one or more members of the
Controlled Group to incur a current payment obligation in excess of U.S.
$1,000,000.
20.14 ACCELERATION
Subject to Clause 20.15 (Clean-Up Period) and at any time after the
occurrence of an Event of Default and if such event is continuing, the
Bank may, by notice to Aegis:
(a) cancel the Total Commitments (provided that, prior to the
Unconditional Date, the Bank shall not cancel any part of the Term
Loan Commitment); and/or
(b) demand that all or part of the Loans, together with accrued
interest, and all other amounts accrued under the Finance
Documents be immediately due and payable, whereupon they shall
become immediately due and payable; and/or
(c) demand that all or part of the Loans be payable on demand,
whereupon they shall immediately become payable on demand.
20.15 CLEAN-UP PERIOD
During the period up to and including 180 days after the Unconditional
Date:
(a) a breach of any provision of Clause 19 (Undertakings); or
(b) a representation or warranty set out in Clause 18
(Representations and warranties) which is incorrect when made; or
(c) a Default arises,
which in any such case applies only in relation to Market Facts or the
member of the Group which exists as a result of the merger of AAC and
Market Facts (or the respective
40
subsidiaries of such companies), shall be deemed not to be a breach of
Clause 19, an incorrect representation or warranty or a Default, as the
case may be. During such 180 day period the Bank may not exercise any
of the rights referred to in Clause 20.14 (a) to (c) (Acceleration)
which arise as a result of an Event of Default which would not have
arisen but for the foregoing provisions of this Clause 20.15 unless the
relevant event continues to subsist unremedied and unwaived at the end
of that period.
21. FEES
21.1 ARRANGEMENT FEE
Either Borrower shall pay to the Bank an arrangement fee of L125,000, of
which L65,000 shall be paid on the date of this Agreement and the
balance shall be paid on the first Drawdown Date of a Term Loan.
21.2 NON-UTILISATION FEE
(a) Either Borrower shall pay to the Bank a non-utilisation fee equal to
0.325 per cent per annum in respect of the period from the date of this
Agreement up to and including the date falling three months after the
date of this Agreement and thereafter until the Final Maturity Date 0.40
per cent per annum on the Total Commitments to the extent not cancelled
or drawndown under this Agreement. For this purpose Loans are taken at
their Original Sterling Amount.
(b) Accrued non-utilisation fee is payable quarterly in arrears and on the
Final Maturity Date.
21.3 VAT
Any fee referred to in this Clause 21 is exclusive of any value added
tax or any other tax which might be chargeable in connection with that
fee. If any value added tax or other tax is so chargeable, it shall be
paid by Aegis at the same time as it pays the relevant fee.
22. EXPENSES
22.1 INITIAL AND SPECIAL COSTS
Aegis shall forthwith on demand pay the Bank the amount of all
reasonable costs and expenses (including legal fees) incurred by it in
connection with:
(a) the negotiation, preparation, printing and execution of:
(i) this Agreement;
(ii) any other Finance Document executed after the date of this
Agreement; and
(b) any amendment, waiver, consent or suspension of rights (or any
proposal for any of the foregoing) requested by or on behalf of a
Borrower and relating to a Finance Document or a document referred
to in any Finance Document.
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22.2 ENFORCEMENT COSTS
The Borrower shall forthwith on demand pay to the Bank the amount of all
costs and expenses (including legal fees) incurred by it in connection
with the enforcement of, or the preservation of any rights under, any
Finance Document.
23. STAMP DUTIES
Aegis shall pay and forthwith on demand indemnify the Bank against any
liability it incurs in respect of any stamp, registration and similar
tax which is or becomes payable in connection with the entry into,
performance or enforcement of any Finance Document.
24. INDEMNITIES
24.1 CURRENCY INDEMNITY
(a) If the Bank receives an amount in respect of a Borrower's liability
under the Finance Documents or if that liability is converted into a
claim, proof, judgment or order in a currency other than the currency
(the "CONTRACTUAL CURRENCY") in which the amount is expressed to be
payable under the relevant Finance Document:
(i) that Borrower shall indemnify the Bank as an independent
obligation against any loss or liability arising out of or as a
result of the conversion;
(ii) if the amount received by the Bank, when converted into the
contractual currency at a market rate in the usual course of its
business, is less than the amount owed in the contractual
currency, the Borrower concerned shall forthwith on demand pay to
the Bank an amount in the contractual currency equal to the
deficit; and
(iii) the Borrower shall forthwith on demand pay to the Bank on demand
any exchange costs and taxes payable in connection with any such
conversion.
(b) Each Borrower waives any right it may have in any jurisdiction to pay
any amount under the Finance Documents in a currency other than that in
which it is expressed to be payable.
24.2 OTHER INDEMNITIES
Aegis shall forthwith on demand indemnify the Bank against any loss or
liability which the Bank incurs as a consequence of:
(a) the occurrence of any Event of Default;
(b) the operation of Clause 20.14 (Acceleration);
(c) any payment of principal or an overdue amount being received from
any source otherwise than on the last day of the relevant Interest
Period or Designated Interest Period (as defined in Clause 9.3
(Default interest)) relative to the amount so received; or
(d) a Loan (or part of a Loan) not being prepaid in accordance with a
notice of prepayment or (other than by reason of negligence or
default by the Bank) a Loan not being made after the Borrower has
delivered a Request for that Loan.
42
Aegis's liability in each case includes any loss or expense on account
of funds borrowed, contracted for or utilised to fund any amount payable
under any Finance Document, any amount repaid or prepaid or any Loan.
24.3 OFFER INDEMNITY
(a) Aegis shall whether or not the transactions contemplated, the Finance
Documents and the Offer Documents are consummated, indemnify the Bank
and its respective officers, directors and employees (each, an
"INDEMNITEE" and collectively, the "INDEMNITEES") from and hold each of
them harmless against any and all losses, claims, damages, costs,
expenses and liabilities, joint or several to which any such Indemnitee
may be or may become subject resulting from, arising out of or by reason
of:
(a) its agreement to make the Facilities available for the purposes of
the Offer;
(b) the use or intended use of the proceeds of any advance under
either Facility for the purposes of the Offer; or
(c) the Offer (whether or not made) or any acquisition by any member
of the Group or any person acting in concert with any member of
the Group of any shares in Market Facts,
and to reimburse any Indemnitee, upon its written demand therefor, for
any and all reasonable expenses (including fees and expenses of counsel)
as they are properly incurred in connection with the investigation of or
preparation for or defence of any actual or threatened claim or any
action, suit or proceeding relating thereto except as may result from
the wilful default or gross negligence of the Bank or an Indemnitee in
complying with the Bank's obligations under any Finance Document.
(b) The Bank shall (subject to the relevant restrictions of the Bank's
insurance policies) inform Aegis of the commencement of and consult with
and keep Aegis informed in respect of the conduct of its defence in
respect of any claim, action, suit, proceeding, or investigation
referred to in sub-paragraph (a) above.
25. EVIDENCE AND CALCULATIONS
25.1 ACCOUNTS
Accounts maintained by the Bank in connection with this Agreement are
prima facie evidence of the matters to which they relate.
25.2 CERTIFICATES AND DETERMINATIONS
Any certification or determination by the Bank of a rate or amount under
the Finance Documents is, in the absence of manifest error, conclusive
evidence of the matters to which it relates.
25.3 CALCULATIONS
Interest (including any applicable Mandatory Cost) and the fee payable
under Clause 21.2 (Non-utilisation fee) accrue from day to day and are
calculated on the basis of the actual number of days elapsed and a year
of 365 days, or, in the case of interest payable on an
43
amount denominated in an Optional Currency or where market practice
otherwise dictates, 360 days.
26. WAIVERS AND REMEDIES CUMULATIVE
The rights of the Bank under the Finance Documents:
(a) may be exercised as often as necessary;
(b) are cumulative and not exclusive of its rights under the general
law; and
(c) may be waived only in writing and specifically.
Delay in exercising or non-exercise of any such right is not a waiver of
that right.
27. AMENDMENTS AND WAIVERS
Any term of the Finance Documents may be amended or waived with the
agreement of Aegis and the Bank.
28. CHANGES TO THE PARTIES
28.1 TRANSFERS BY BORROWERS
Neither Borrower may assign, transfer, novate or dispose of any of, or
any interest in, its rights and/or obligations under the Finance
Documents.
28.2 TRANSFERS BY THE BANK
The Bank may not at any time assign, transfer or novate any of the Total
Commitments and/or any of its rights and/or obligations under this
Agreement.
29. DISCLOSURE OF INFORMATION
The Bank shall keep confidential and shall not, without the prior
consent of Aegis, use any confidential information supplied by or on
behalf of Aegis under this Agreement otherwise than in connection with
this Agreement. However, the Bank is entitled to disclose confidential
information:
(i) in connection with any legal proceedings arising out of or in
connection with this Agreement; or
(ii) if required to do so by an order of a court of competent
jurisdiction whether in pursuance of any procedure for discovering
documents or otherwise; or
(iii) pursuant to any law or regulation in accordance with which the
Bank is required to act; or
(iv) to any governmental, banking or taxation authority of competent
jurisdiction; or
(v) to its auditors or other professional advisers.
44
30. SET-OFF
After the occurrence of an Event of Default, the Bank may set off any
matured obligation owed by a Borrower under the Finance Documents (to
the extent beneficially owned by the Bank) against any obligation
(whether or not matured) owed by the Bank to that Borrower, regardless
of the place of payment, booking branch or currency of either
obligation. If the obligations are in different currencies, the Bank may
convert either obligation at a market rate of exchange in its usual
course of business for the purpose of the set-off. If either obligation
is unliquidated or unascertained, the Bank may set off in an amount
estimated by it in good faith to be the amount of that obligation.
31. SEVERABILITY
If a provision of any Finance Document is or becomes illegal, invalid or
unenforceable in any jurisdiction, that shall not affect:
(a) the legality, validity or enforceability in that jurisdiction of
any other provision of the Finance Documents; or
(b) the legality, validity or enforceability in other jurisdictions of
that or any other provision of the Finance Documents.
32. COUNTERPARTS
Each Finance Document may be executed in any number of counterparts, and
this has the same effect as if the signatures on the counterparts were
on a single copy of the Finance Document.
33. NOTICES
33.1 GIVING OF NOTICES
All notices or other communications under or in connection with this
Agreement shall be given in writing and, unless otherwise stated, may be
made by letter, or by telex or facsimile. Any such notice will be deemed
to be given as follows:
(a) if by letter, when delivered personally or on actual receipt;
(b) if by telex, when despatched, but only if, at the time of
transmission, the correct answerback appears at the start and at
the end of the sender's copy of the notice; and
(c) if by facsimile, when received in legible form.
However, a notice given in accordance with the above but received on a
non-working day or after business hours in the place of receipt will
only be deemed to be given on the next working day in that place.
33.2 ADDRESSES FOR NOTICES
(a) The address and facsimile number of Aegis are:
Aegis Group plc
45
00X Xxxx Xxxxxx Xxxxxx
Xxxxxx
XX0X 0XX
Attention: Company Secretary
Fax: 0000 000 0000
or such other as Aegis may notify to the Bank by not less than five
Business Days' notice.
(b) The address and facsimile number of AAC are:
0 Xxxx Xxxxxx
Xxx Xxxx
XX 00000
XXX
Attention: Xxxx Xxxxxxxxxx
Fax: 000 000 000 0000
or such other as AAC may notify to the Bank by not less than five
Business Days' notice.
(c) The addresses, telephone numbers and facsimile numbers of the Bank are:
(i) for the purposes of sending Requests only:
000 Xxxxxxxxxxx
Xxxxxx XX0
Attention: Xxxx Xxxxxx or Xxxxxx Xxxxxxx
Fax: 0000 000 0000
Tel: 0000 000 0000
(ii) for all other purposes:
Portsmouth Corporate Office
Society Building
000 Xxxxxx Xxxx
Xxxxxxxxxx
Xxxxx X00 0XX
Attention: Xxxx XxXxxxxx
Fax: 00000 000000
Tel: 00000 000000
or such other as the Bank may notify to Aegis by not less than five
Business Days' notice.
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34. JURISDICTION
34.1 SUBMISSION
Each Borrower agrees that the courts of England have jurisdiction to
settle any disputes in connection with any Finance Document and
accordingly submits to the jurisdiction of the English courts.
34.2 SERVICE OF PROCESS
Without prejudice to any other mode of service:
(a) AAC irrevocably appoints Aegis as its agent for service of process
relating to any proceedings before the English courts in
connection with any Finance Document (and Aegis accepts this
appointment);
(b) agrees that failure by a process agent to notify the relevant
Borrower of the process will not invalidate the proceedings
concerned;
(c) consents to the service of process relating to any such
proceedings by prepaid posting of a copy of the process to its
address for the time being applying under Clause 33.2 (Addresses
for notices); and
(d) agrees that if the appointment of any person mentioned in
paragraph (a) above ceases to be effective, the relevant Borrower
shall immediately appoint a further person in England to accept
service of process on its behalf in England and, failing such
appointment within 15 days, the Bank is entitled to appoint such a
person by notice to the Borrowers.
34.3 FORUM CONVENIENS AND ENFORCEMENT ABROAD
Each Borrower:
(a) waives objection to the English courts on grounds of inconvenient
forum or otherwise as regards proceedings in connection with a
Finance Document; and
(b) agrees that a judgment or order of an English court in connection
with a Finance Document is conclusive and binding on it and may be
enforced against it in the courts of any other jurisdiction.
34.4 NON-EXCLUSIVITY
Nothing in this Clause 34 limits the right of the Bank to bring
proceedings against a Borrower in connection with any Finance Document:
(a) in any other court of competent jurisdiction; or
(i) concurrently in more than one jurisdiction.
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35. GOVERNING LAW
This Agreement is governed by English law.
This Agreement has been entered into on the date stated at the beginning
of this Agreement.
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SCHEDULE 1
CONDITIONS PRECEDENT DOCUMENTS
1. CONSTITUTIONAL DOCUMENTS
A copy of the memorandum and articles of association and certificate of
incorporation (or equivalent constitutional documents) of each Borrower.
2. AUTHORISATIONS
(a) A copy of a resolution of the board of directors of each Borrower or, if
applicable, of a committee of the board of directors (together with a
copy of the resolution of the board of directors constituting that
committee):
(i) approving the terms of, and the transactions contemplated by, this
Agreement (and, in the case of Aegis, the Vendor Placing) and
resolving that it execute this Agreement (and, in the case of
Aegis, all documents relating to the Vendor Placing to which they
are a party);
(ii) authorizing a specified person or persons to execute this
Agreement on its behalf; and
(iii) authorizing a specified person or persons, on its behalf, to sign
and/or despatch all other documents and notices to be signed
and/or despatched by it under or in connection with this
Agreement;
(b) a specimen of the signature of each person authorized by the resolution
referred to in paragraph (a) above;
(c) a certificate of a director of Aegis confirming that the borrowing of
the Total Commitments in full would not cause any borrowing limit
binding on it to be exceeded;
(d) a certificate of a director of AAC confirming that the borrowing of the
Term Loan Commitments in full would not cause any borrowing limit
binding on it to be exceeded; and
(e) a certificate of an authorized signatory of Aegis certifying that each
copy document specified in this Schedule 1 is correct, complete and in
full force and effect as at a date no earlier than the date of this
Agreement.
3. ACQUISITION DOCUMENTS
(a) A copy of the Press Release.
(b) A copy of the resolution of the board of directors of AAC approving the
acquisition of Market Facts.
(c) A certificate from Aegis signed by two senior officials confirming that
AAC has accepted for payment pursuant to the terms of the Offer and/or
acquired pursuant to the terms of Lock-up Agreements in aggregate not
less than 50 per cent. of the outstanding Market Facts Shares.
49
4. LOCK-UP OPTION AGREEMENTS
(a) A copy of each of the Lock-up Agreements.
(b) A certificate from Aegis signed by two senior officials confirming that
a competing offer for the Market Facts Shares has been made and all the
Lock-up Options have been exercised pursuant to the terms of the Lock-up
Agreements.
5. OFFER DOCUMENTS
(a) A copy of each Offer Document and a copy of any circular issued by
either Borrower to its shareholders or the shareholders in Market Facts
in connection with the Offer.
(b) A certificate from Aegis signed by two senior officials confirming that
AAC has accepted for payment pursuant to the terms of the Offer, Market
Facts Shares which, taken together with any Market Facts Shares acquired
under the Lock-up Agreements amount to not less than 50 per cent. of the
outstanding Market Facts Shares and that the Placing Agreement has
become wholly unconditional (except to the extent that it is conditional
only on Admission occurring) and that the Placing Agreement has not been
terminated in accordance with its terms.
6. REVOLVING LOANS DOCUMENTS
A certificate from Aegis signed by two senior officials confirming that
all amounts outstanding under the Existing Facility Agreement will be
repaid (and will be partially repaid out of the proceeds of the first
Revolving Credit Loan) and the commitments of each bank under that
agreement will be cancelled in full, on or before, the first Drawdown
Date for a Revolving Credit Loan.
7. LEGAL OPINION
A legal opinion of Xxxxx & Xxxxx, New York counsel to the Bank, in
relation to Delaware corporation law, substantially in the form agreed.
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SCHEDULE 2
CALCULATION OF THE MANDATORY COST
(a) For the purpose of paragraph (a) of the definition of Mandatory Cost,
the Mandatory Cost for a Loan denominated in Sterling for its Interest
Periods is calculated in accordance with the following formula:
BY+S(Y-Z)+Fx0.01
----------------% per annum
100-(B+S)
where on the day of application of a formula:
B is the percentage of the Bank's eligible liabilities (in excess of
any stated minimum) which the Bank of England requires the Bank to
hold on a non-interest-bearing deposit account in accordance with
its cash ratio requirements;
Y is LIBOR at or about 11.00 a.m. on that day for the Interest
Period;
S is the percentage of the Bank's eligible liabilities which the
Bank of England requires the Bank to place as a special deposit;
Z is the interest rate per annum allowed by the Bank of England on
special deposits; and
F is the charge payable by the Bank to the Financial Services
Authority under paragraph 2.02 or 2.03 (as appropriate) of the
Fees Regulations (but where for this purpose, the figure in
paragraph 2.02b and 2.03b will be deemed to be zero) expressed in
pounds per L1 million of the fee base of the Bank.
(b) For the purposes of this Schedule 2:
(i) "ELIGIBLE liabilities" and "SPECIAL DEPOSITS" have the meanings
given to them at the time of application of the formula by the
Bank of England;
(ii) "FEE BASE" has the meaning given to it in the Fees Regulations;
and
(iii) "FEES REGULATIONS" means the Banking Supervision (Fees)
Regulations 1998 and/or any other regulations governing the
payment of fees for banking supervision.
(c) In the application of the formula, B, Y, S and Z are included in the
formula as figures and not as percentages, e.g. if B = 0.5% and Y = 15%,
BY is calculated as 0.5 x 15.
(d) (i) The formula is applied on the first day of the Interest Period.
(ii) Each rate calculated in accordance with the formula is, if
necessary, rounded upward to four decimal places.
51
(e) If the Bank determines that a change in circumstances has rendered, or
will render, the formulae inappropriate, the Bank shall notify the
Borrower of the manner in which the Mandatory Cost will subsequently be
calculated. The manner of calculation so notified by the Bank shall, in
the absence of manifest error, be binding on all the Parties.
52
SCHEDULE 3
FORM OF REQUEST
To: NATIONAL WESTMINSTER BANK PLC
From: [AEGIS GROUP plc/Aegis Acquisition Corp.]*
Date:[ ], 0000
XXXXX GROUP PLC/AEGIS ACQUISITION CORP. -L250,000,000 REVOLVING CREDIT AND TERM
AGREEMENT DATED [ ], 1999
1. We wish to borrow a Loan as follows:
(a) Term Loan/ Option Term Loan/Revolving Credit Loan
(b) Drawdown Date: [ ]
(c) Amount: [ ]
(d) Currency: [ ]
(e) Interest Period: [ ]
(f) Payment instructions: [ ].
2. We confirm that each condition specified in Clause 4.2 (Further
conditions precedent) is satisfied on the date of this Request.
By:
[AEGIS GROUP plc/Aegis Acquisition Corp.]*
Authorized Signatory
----------------------------
* Delete as appropriate
53
SIGNATORIES
BORROWERS
AEGIS GROUP PLC
By:
AEGIS ACQUISITION CORP.
By:
GUARANTOR
AEGIS GROUP PLC
By:
BANK
NATIONAL WESTMINSTER BANK PLC
By:
