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EXHIBIT (b)
CONFORMED COPY
AMENDMENT AND RESTATEMENT AGREEMENT
dated 6 November 1998
relating to a
Credit Agreement dated 5 September 1997
(as amended by a Supplemental Credit Agreement
dated 24 November 1997 and a Second Supplemental Agreement dated
19 June 1998)
MISYS PLC
as Borrower
THE GUARANTORS NAMED HEREIN
ING BARINGS
LLOYDS BANK PLC CAPITAL MARKETS
as Arrangers
THE BANKS AND FINANCIAL INSTITUTIONS
NAMED HEREIN
LLOYDS BANK PLC
as Overdraft Facility Bank
LLOYDS BANK PLC CAPITAL MARKETS
as Agent
Ref: JMS/JLM
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THIS AMENDMENT AND RESTATEMENT AGREEMENT is made on 6 November 1998 between
(1) MISYS PLC (the "BORROWER")
(2) THE COMPANIES listed as Guarantors in Schedule 4 of this
Agreement (each a "GUARANTOR", together the "GUARANTORS")
(3) BARING BROTHERS LIMITED trading as ING BARINGS and LLOYDS BANK
PLC trading as LLOYDS BANK PLC CAPITAL MARKETS as arrangers (the
"ARRANGERS")
(4) THE BANKS AND FINANCIAL INSTITUTIONS listed as Acquisition
Facility Banks at the end of this Agreement (the "ACQUISITION
FACILITY BANKS")
(5) THE BANKS AND FINANCIAL INSTITUTIONS listed as Revolving Credit
Facility Banks at the end of this Agreement (the "REVOLVING
CREDIT FACILITY BANKS")
(6) LLOYDS BANK PLC as the bank providing the Overdraft Facility
(the "OVERDRAFT FACILITY BANK")
(7) LLOYDS BANK PLC trading as LLOYDS BANK PLC CAPITAL MARKETS as
agent for the Banks (the "AGENT").
BACKGROUND
(A) The parties to this Amendment and Restatement Agreement are
parties to a credit agreement dated 5 September 1997 (as
amended by a Supplemental Credit Agreement dated 24 November
1997 and a Second Supplemental Credit Agreement dated 19 June
1998) (the "CREDIT AGREEMENT"), pursuant to which the
Acquisition Facility Banks made available to the Borrower a
Dollar acquisition facility of $200,000,000 (as reduced) and
the Revolving Credit Facility Banks made available a Dollar
revolving credit facility of up to $190,000,000 and the
Overdraft Facility Bank made available to the Borrower an
overdraft and ancillary facilities.
(B) The Borrower wishes to amend the Credit Agreement on the terms
below to (inter alia) amalgamate the existing acquisition
facility and revolving credit facility into a new revolving
credit facility.
(C) The parties to this Amendment and Restatement Agreement have
agreed to restate the Credit
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Agreement to reflect the changes required.
It is agreed as follows:
1 INTERPRETATION
1.1 Definitions: In this Amendment and Restatement Agreement,
except where the context otherwise requires, words and
expressions defined and references construed in the Credit
Agreement (but not defined or construed in this Amendment and
Restatement Agreement) shall have the same meaning, and, in
addition:
"EFFECTIVE DATE" means the date determined in accordance with
Clause 3.1 of this Amendment and Restatement Agreement
"RESTATED CREDIT AGREEMENT" means the Credit Agreement as
restated and amended in the terms of Schedule 3.
1.2 Headings: Headings shall be ignored in construing this
Amendment and Restatement Agreement.
2 AMENDMENT
Provided that no notice has been given under Clause 21.2 of the
Credit Agreement before the Agent gives the confirmation
referred to in the first sentence of Clause 3 of this Amendment
and Restatement Agreement then, on and with effect from the
Effective Date, the Credit Agreement shall be amended and
restated as set out in Schedule 3 so that the rights and
obligations of the parties to this Amendment and Restatement
Agreement shall be governed by the terms of the Restated Credit
Agreement. For the avoidance of doubt, with effect on and from
the Effective Date, the Borrower shall be liable for any
Advances then outstanding, and any interest, commitment or
other sum then accrued but unpaid, under the Credit Agreement.
3 CONDITIONS
3.1 CONDITIONS PRECEDENT: The Effective Date of this Amendment and
Restatement Agreement shall be the date on which the Agent has
confirmed to the Borrower that the Agent has received documents
appearing to comply with the requirements of Schedule 1. The
Agent shall promptly notify the Borrower and the Banks when it
has received all those documents and has found that they appear
to comply with those requirements.
3.2 CONDITIONS SUBSEQUENT: THE Borrower will procure that each
Guarantor will, and in any event each Guarantor will, deliver
to the Agent, in a form satisfactory to it, resolutions of, or
other evidence from, each Guarantor constituting or evidencing
all corporate action necessary on the part
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of the relevant Guarantor to authorise the signing of this Amendment
and Restatement Agreement and the giving of any communications
and/or taking of any other action required under or in connection
with this Amendment and Restatement Agreement, within 50 Business
Days of the date of this Amendment and Restatement Agreement.
4 REPRESENTATIONS AND WARRANTIES
The Borrower and the Guarantors jointly and severally represent to
and for the benefit of each other party to this Amendment and
Restatement Agreement that the representations and warranties
contained in Clause 17 of the Restated Credit Agreement which are
stated to be repeated in accordance with Clause 17.1.18 of the
Restated Credit Agreement (except, as to matters of law only, the
representation and warranty in Clause 17.1.5 of the Restated Credit
Agreement shall be subject to the qualifications in paragraphs 5 and
6 of the opinion of Linklaters & Paines) are complied with and would
be correct in all respects if repeated on the date of this Amendment
and Restatement Agreement by reference to the circumstances now
existing and will be complied with and would be correct in all
respects if repeated on the Effective Date by reference to the
circumstances then existing (but, in each case, as if references in
those representations and warranties to the Restated Credit
Agreement were instead to this Amendment and Restatement Agreement).
5 GENERAL
Clause 16 (Payments), Clause 26 (Expenses and Stamp Duty), Clause 29
(Remedies, Waivers, Amendments and Consents), Clause 30
(Communications), Clause 31 (Partial Invalidity), Clause 33
(Counterparts) and Clause 34 (Governing Law and Jurisdiction) of the
Restated Credit Agreement shall apply, with any necessary
consequential amendments, to this Amendment and Restatement
Agreement.
6 CREDIT AGREEMENT
Save as expressly provided in this Amendment and Restatement
Agreement, the Credit Agreement remains and shall continue in full
force and effect. Without limiting the provisions of the first
sentence of this Clause 6, the Guarantors expressly confirm that the
guarantee and indemnity as set out in Clause 23 of the Restated
Credit Agreement will apply in relation to the obligations of the
Borrower under the Restated Credit Agreement.
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SCHEDULE 1
CONDITIONS PRECEDENT
1 Certificate from the Borrower dated on or after the date of
this Agreement in substantially the form set out in Schedule 2,
duly executed by a Director of the Borrower, together with the
documents stated by the certificate as being delivered with it
and
2 Legal opinion dated on or after the date of this Agreement,
from Linklaters & Paines, English legal advisers to the Agent,
Arrangers and Banks.
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SCHEDULE 2
CERTIFICATE OF BORROWER
To: Lloyds Bank Plc Capital Markets
as Agent for the Banks
[Date]
I refer to the Credit Agreement dated 5 September 1997 (the "CREDIT
AGREEMENT") (as amended by a Supplemental Credit Agreement dated 24
November 1997 and a Second Supplemental Agreement dated 19 June
1998), and as amended and restated by an amendment and restatement
agreement dated [-] 1998 (the "AMENDMENT AND RESTATEMENT AGREEMENT")
between MISYS plc (the "BORROWER"), the Arrangers and the Banks
named in it and yourselves as Agent. Terms defined and references
construed in the Amendment and Restatement Agreement have the same
meaning and construction in this Certificate which is given as
contemplated by paragraph 1 of Schedule 1 to the Amendment and
Restatement Agreement.
I am a Director of the Borrower and hereby certify as follows:
1 AUTHORITY: I am duly authorised to give this Certificate.
2 Powers: Delivered with this Certificate and signed or initialled by
me for the purpose of identification is EITHER (1) a true, complete
and up-to-date copy of the Certificate of Incorporation and the
Memorandum and Articles of Association of the Borrower as in effect
when it signed the Amendment and Restatement Agreement and on the
date of this Certificate OR (2) a confirmation from the Borrower,
confirming that no changes have occurred since the delivery of the
Certificate of the Borrower under the Credit Agreement. The Borrower
is carrying on a business authorised under its Memorandum of
Association. Neither the entry into the Amendment and Restatement
Agreement or the Credit Agreement, as amended by the Amendment and
Restatement Agreement, by the Borrower, nor the exercise of its
rights and/or performance of or compliance with its obligations
under the Amendment and Restatement Agreement or the Credit
Agreement, as amended by the Amendment and Restatement Agreement,
does or will violate, or exceed any borrowing or other power or
restriction granted or imposed by, its Memorandum or Articles of
Association.
3 DUE AUTHORISATION: Delivered with this Certificate and signed or
initialled by me for the purpose of identification is a true and
complete extract of all relevant parts of the Minutes of a duly
convened meeting of the Board of Directors of the Borrower duly held
on - 1998 at which a duly constituted quorum of Directors was
present and voting throughout and at which the resolutions set
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out in the extract were duly passed. Each of the resolutions remain
in full force and effect without modification. The resolutions
constitute all corporate action necessary on the part of the
Borrower to authorise the
signing of the Amendment and Restatement Agreement and the giving of
any communications and/or taking of any other action required under
or in connection with the Amendment and Restatement Agreement or the
Credit Agreement, as amended by the Amendment and Restatement
Agreement, on behalf of the Borrower.
4 DUE EXECUTION: The Amendment and Restatement Agreement has been
unconditionally signed by the Borrower. The person who signed the
Amendment and Restatement Agreement on behalf of the Borrower was
duly authorised to do so. Delivered with this Certificate and signed
or initialled by me for the purpose of identification is EITHER (1)
a list of the names and titles, and specimens of the signatures, of
the persons who (either individually or with others, as provided in
the resolutions referred to in 3 above) signed the Amendment and
Restatement Agreement and/or are authorised to sign and/or despatch
all documents and notices by the Borrower under or in connection
with the Amendment and Restatement Agreement or the Credit Agreement
as amended by the Amendment and Restatement Agreement on behalf of
the Borrower OR (2) a confirmation from the Borrower, that the same
persons who signed and/or were authorised to sign the Credit
Agreement (together, if applicable, with a certificate of any other
person who is authorised in accordance with (1) of this paragraph 4)
signed (or such different person now authorised signed) the
Amendment and Restatement Agreement and/or are authorised to sign
and/or dispatch all documents and notices by the Borrower under or
in connection with the Amendment and Restatement Agreement and/or
the Credit Agreement as amended by the Amendment and Restatement
Agreement on behalf of the Borrower.
....................................
DIRECTOR OF
MISYS PLC
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SCHEDULE 3
RESTATED CREDIT AGREEMENT
THIS AGREEMENT is made on 5 September 1997 (as amended by the
Supplemental Credit Agreement dated 24 November 1997 and the Second
Supplemental Credit Agreement dated 19 June 1998 and as amended and
restated by an Amendment and Restatement Agreement dated - 1998)
BETWEEN
(1) MISYS PLC (the "BORROWER")
(2) BARING BROTHERS LIMITED trading as ING BARINGS and LLOYDS BANK
PLC trading as LLOYDS BANK CAPITAL MARKETS as arrangers (the
"ARRANGERS")
(3) THE BANKS AND FINANCIAL INSTITUTIONS shown at the end of this
Agreement as having Revolving Credit Commitments (the "REVOLVING
CREDIT FACILITY BANKS")
(4) LLOYDS BANK PLC as the bank providing the Overdraft Facility
(the "OVERDRAFT FACILITY BANK")
(5) LLOYDS BANK PLC trading as LLOYDS BANK CAPITAL MARKETS as agent
for the Banks (the "AGENT").
BACKGROUND
As a result of arrangements by the Arrangers, the Revolving Credit
Facility Banks are willing to grant to the Borrower a revolving
credit facility of up to U.S.$390,000,000 (or equivalent) and the
Overdraft Facility Bank is willing to grant to the Borrower an
overdraft and ancillary facilities. Such facilities are to be
guaranteed by the Guarantors.
IT IS AGREED as follows:
1 INTERPRETATION
1.1 DEFINITIONS: In this Agreement, except to the extent that the
context requires otherwise:
"ACCOUNTANT'S REPORT" means the report of Deloitte & Touche
regarding historic financial information of Decimal and addressed to
the Arrangers, the Banks and the Borrower in the form of a draft
dated 1 September 1997 as such draft may be amended but in the case
of any amendments which are in any respect materially adverse to the
interests of the Banks with the prior consent of the Banks to such
amendment
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"ACQUISITION" means the acquisition of Decimal by way of the Merger
as described in the Circular
"ADJUSTED EBITDA" means, in relation to any period, EBITDA for such
period adjusted by crediting EBITDA for such period (on an
annualised basis) for any Subsidiaries acquired during such period
and debiting EBITDA for such period (on an annualised basis) for any
Subsidiaries disposed of during such period and, where amounts are
denominated in a currency other than Sterling, using the exchange
rate applying on the relevant Test Date
"ADMISSION" means the admission of the Stock and the New Shares to
the Official List of the London Stock Exchange
"ADVANCE" means an advance made or to be made by the Revolving
Credit Facility Banks under the Revolving Credit Facility or, as the
case may be, the outstanding principal amount of any such advance
"AMENDMENT AND RESTATEMENT AGREEMENT" means the agreement dated -
1998 between the parties hereto, to which the form of this Agreement
is scheduled
"APPLICABLE ACCOUNTING PRINCIPLES" means those accounting
principles, standards and practices on which the preparation of the
audited consolidated accounts of the Group as at 31 May 1997 and for
the financial year ended on that date were based and those
accounting policies which were used in the preparation of those
accounts
"APPLICABLE MARGIN" means a rate per annum determined by reference
to the table below:
RATIO OF NET BORROWINGS TO ADJUSTED EBITDA MARGIN
(i) 2.5:1 or greater 0.85%
(ii) Greater than 2.0:1 but less than 2.5:1 0.65%
(iii) 2.0:1 or less 0.45%
the ratio shall be measured semi-annually by reference to the last
two half-years (in respect of which accounts, delivered pursuant to
Clauses 18.2 and 18.3 are prepared) and shall have effect from the
date which falls five Business Days after delivery of any set of
accounts for the Borrower to the Agent pursuant to Clause 18.2 and
18.3 until (but excluding) the effective date for any subsequent
change in the Applicable Margin in accordance with this definition,
provided however that for the period from the date hereof until 24
November 1998, the Applicable Margin will be 0.85%
"AVAILABLE REVOLVING CREDIT FACILITY COMMITMENT" means, in relation
to a Revolving Credit Facility Bank, its Revolving Credit Facility
Commitment less its share of the Dollar Amounts of the outstanding
Advances
"AVAILABLE REVOLVING CREDIT FACILITY" means the total amount of the
Available Revolving Credit Facility Commitments
"BANKS" means the Overdraft Facility Bank and the Revolving Credit
Facility Banks and "BANK" means any one of them
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"BRIDGE FACILITY" means the U.S.$530,000,000 Bridge Facility dated
24 November 1997 between the Borrower, Decimal Music Corporation,
the Arrangers, the Agents and the Banks named therein
"BORROWINGS" means, as at any particular time but without double
counting, the aggregate outstanding principal, capital or nominal
amount of the Borrowed Money (determined on a consolidated basis and
calculated using the exchange rate applying on the relevant Test
Date) of members of the Group, and shall in any event include:
(i) the outstanding amount of any bills of exchange or
promissory notes on which any member of the Group is
liable as drawer (but only if the relevant ββββ is
not beneficially owned by it), acceptor, issuer,
endorser or otherwise (but excluding any ββββ or note
drawn, accepted or issued by that member of the Group
in the ordinary course of trading and which is
payable at sight or not more than 90 days after sight
or has a final maturity of not more than 90 days from
the date thereof and is not refinancing another ββββ
or note relating to the same underlying transaction)
(ii) to the extent paid up or credited as paid up, the
nominal amount of any issued share capital (other
than (a) equity share capital and (b) irredeemable
shares) of any member of the Group not for the time
being beneficially owned by the Borrower or a
wholly-owned Subsidiary
(iii) any fixed or minimum premium payable on redemption
or repayment of any Borrowed Money and
(iv) the amount of any Indebtedness consisting of
deferred consideration but only where the amount
payable can be determined at such time or, where the
amount cannot be determined at such time but the
Indebtedness consisting of deferred consideration
will not be less than an amount which can be
determined, the amount so determined
but:
(a) moneys borrowed or raised which are on a
particular day outstanding or repayable in a
currency other than Sterling shall on that day
be taken into account (1) if that day is a date
as at which an audited consolidated balance
sheet of the Group has been prepared, in their
Sterling equivalent at the rate of exchange used
for the purpose of preparing that balance sheet
and (2) in any other case in their Sterling
equivalent as at 11 a.m. on the last Business
Day of the previous month and
(b) any moneys borrowed from any member of the Group
by the trustee of an employee share option
scheme for the benefit of employees of any
member of the
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Group required to be recognised as a liability of any
member of the Group by Financial Reporting Standard 5
"REPORTING THE SUBSTANCE OF TRANSACTIONS" shall be
disregarded
"BUSINESS DAY" means a day on which:
(1) deposits in U.S. Dollars or, as the case may be,
Sterling may be dealt in on the Inter- bank Market and
(2) banks and foreign exchange markets are open for
business in New York City and
(3) additionally, in relation to:
(a) any payment in a currency other than U.S.
Dollars or Sterling to be made on that day, or
(b) any amount in a currency other than U.S. Dollars
or Sterling in respect of which a rate of
interest is to be determined on that day, or
(c) any amount in any currency in respect of which
an equivalent in another currency is to be
determined on that day,
banks and foreign exchange markets are open for
business in the place where that payment is to be
made or, as the case may be, in the principal
financial centre of the country of each currency
concerned and
(4) determined, as the case may be, by reference to
Schedule 13
"CANCELLATION DATE" means the date on which the Merger Agreement is
terminated or ceases
"CASH AND CASH EQUIVALENTS" means at any time:
(i) the then current market value of marketable debt
securities issued or guaranteed by the government of
the United States of America or the United Kingdom,
(ii) deposits for a term of 3 months or less and money at
call with the Agent or a recognised bank, building
society or financial institution incorporated or
established in the OECD having a rating of at least A
granted by Standard & Poor's Rating Services, a
division of ββββββ-ββββ Company, Inc. or at least A2
by βββββ'β Investors Service Inc., except to the
extent they constitute Excluded Cash,
(iii) the then current market value of any certificate of
deposit the term of which has 3 months or less
remaining to maturity issued by the Agent or a
recognised bank, building society or financial
institution incorporated or established in the OECD
having a rating of A granted by Standard & Poor's
Rating Services, a division of
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ββββββ-ββββ Company, Inc., or at least A2 by βββββ'β
Investors Service Inc., and
(iv) any cash in hand or cash at bank, except to the extent
they constitute Excluded Cash
"CIRCULAR" means the circular letter (incorporating listing
particulars and a prospectus) in the form of a draft dated 4
September 1997 expected to be despatched on or after 5 September
1997 by the Borrower to its shareholders giving details of the
Merger and of the Rights Issue as such draft may be amended but in
the case of any amendments which are in any respect materially
adverse to the interests of the Banks with the prior consent of the
Banks to such amendment
"DECIMAL" means Medic Computer Systems Inc.
"DEPOSIT AGREEMENT" means the agreement between the Borrower and the
Banks named therein dated 24 November 1997 in respect of the
proceeds of the Rights Issue
"DISPOSAL" means a sale, transfer, leasing out, lending or other
disposal of assets (whether by a single transaction or a number of
related transactions and whether at one time or over a period of
time)
"DISPOSAL PROCEEDS" means, in relation to a Disposal, the gross
consideration receivable by the relevant member or members of the
Group in respect of or in connection with such Disposal and shall
include any Indebtedness in respect of Borrowed Money assumed by the
purchaser (or as the case may be transferee, lessee, borrower or
other person) in connection with such Disposal
"DOLLARS", "U.S. DOLLARS", "U.S.$" and "$" mean lawful currency of
the United States of America
"DOLLAR AMOUNT" means, in relation to an Advance:
(a) if the notice requesting that Advance requested that it
be denominated in U.S. Dollars, the amount specified in
that notice or
(b) if the notice requesting that Advance requested that it
be denominated in an Optional Currency, the U.S. Dollar
equivalent (calculated by the Agent as at or about the
Relevant Time) of the amount specified in that notice
except that, if all or part of that Advance is not made or is repaid
or prepaid, the Dollar Amount of that Advance shall be
correspondingly reduced
"EBITDA" means, in relation to any period, PBIT plus all
depreciation and amortisation deducted in establishing PBIT, in each
case, for that period
"EFFECTIVE TIME" has the meaning attributed thereto in the Merger
Agreement
"ENVIRONMENTAL LAWS" means any and all national, state, local or
municipal laws, rules, orders,
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regulations, statutes, ordinances, codes, decrees, requirements of
any quasi-government or government authority and all common law
requirements, rules and bases of liability regulating, relating to
or imposing liability or standards of conduct concerning pollution
or protection of human health or the environment, as now or may at
any time hereafter be in effect and any order, judgment, injunction,
declaration, notice or demand issued thereunder
"ESCROW LETTER" means the letter in the form set out in Schedule 12
with such changes as may be agreed between the Borrower and the
Banks
"EVENT OF DEFAULT" means one of the events mentioned in Clause 20.1
"EXCLUDED CASH" means, in respect of any member of the Group, the
amount (if any) of any cash in hand or cash at bank or other form of
deposit or certificate of deposit, in each case, of that member held
outside the U.K. which or the proceeds of which, in accordance with
all applicable foreign exchange laws or other laws, is or are not
permitted at that time to be applied to meet any indebtedness
included in the calculation of Borrowings or to be remitted to the
U.K.
"EXISTING CREDIT FACILITIES" means the credit agreement dated 22
November 1996 between the Borrower, the Agent Bank and Lloyds Bank
Plc and ING Bank N.V., London Branch as lenders and the revolving
loan facility between the Borrower and Lloyds Bank Plc as set out in
a letter dated 3 April 1996
"FACILITY OFFICE" means, in relation to a Bank at any particular
time, the office through which it is then acting for the purpose of
this Agreement
"FINANCIAL YEAR" means the financial year of the Borrower ending on
31 May
"GAAP" means accounting principles, concepts, bases and policies
generally adopted and accepted in the jurisdiction of each Obligor's
incorporation
"GROUP" means, at any particular time, the Borrower and all its
Subsidiaries and, for the purposes of Clauses 17.1.9, 17.1.10, 19.5
and 19.7 and the definitions of Applicable Accounting Principles,
Borrowings, EBITDA, Interest Payable, Interest Receivable, Net
Interest Payable, PBIT and Principal Subsidiary, all its Subsidiary
Undertakings (and "MEMBER OF THE GROUP" shall be construed
accordingly)
"GUARANTORS" means any company that is incorporated in a country in
the OECD and which has executed a Guarantor Accession Deed and
"GUARANTOR" means any one of them
"GUARANTOR ACCESSION DEED" means a deed to be delivered by any
Guarantor to the Agent substantially in the form set out in Schedule
8A or, in the case of a Guarantor incorporated in France,
substantially in the form set out in Schedule 8B or, in the case of
a Guarantor incorporated in Germany, substantially in the form set
out in Schedule 8C or in such other form as the Majority Banks may
reasonably require to guarantee the obligations of the Borrower
under the Agreement
"INFORMATION MEMORANDUM" means the information memorandum containing
certain information regarding (among other things) the Borrower and
which, on behalf of and subject to the agreement of the Borrower
(such agreement not to be unreasonably withheld or delayed), has
been or may be prepared in connection with this transaction and
distributed as part of the Syndication
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"INFORMATION PACKAGE" means the documents listed in Schedule 1
"INTER-BANK MARKET" means the London inter-bank market
"INTEREST PAYABLE" means, in relation to any period, all interest
payable and similar charges determined on a consolidated basis of
the Group including (without limitation) all commissions, fees,
premia, prepayment costs and penalties and discount or acceptance
fees payable or deducted in connection with any Borrowed Money or
any other indebtedness to a bank or financial institution and any
other costs, expenses and deductions of a similar nature (including,
without limitation, the interest element of finance leases, hire
purchase, credit or conditional sales and deferred payment
arrangements)
"INTEREST PAYMENT DATE" means the last day of an Interest Period
"INTEREST PERIOD" means a period by reference to which interest is
calculated on an Advance or overdue sum
"INTEREST RECEIVABLE" means, in relation to any period, all interest
receivable determined on a consolidated basis of the Group including
all amounts in the nature of interest received under hedging
arrangements
"LIBOR" in respect of any Interest Period means the rate which is
quoted for that Interest Period on the relevant page on the Telerate
Monitor (or such other service as may replace it for the purpose of
displaying London inter-bank offered rates of leading reference
banks for deposits in the relevant currency) as of 11 a.m. on the
Rate Fixing Day as being the interest rate offered in the Inter-bank
Market for deposits in the relevant currency for the same period as
the relevant Interest Period (or, if the periods are not the same,
such period, if any, as the Agent reasonably determines to be
substantially the same) but:
(i) if the offered rate so appearing is replaced by the
corresponding rates of more than one bank, the rate
shall be the arithmetic mean (rounded, if necessary,
to 4 decimal places) of the respective rates so
appearing and
(ii) if for any other reason such offered rate does not
so appear, or if the relevant page is unavailable,
the rate shall be the arithmetic mean (rounded as
mentioned above) of the respective rates (as quoted
to the Agent at its request) at which each Reference
Bank is offering deposits in the relevant currency
for the relevant Interest Period to prime banks in
the Inter-bank Market at or about 11 a.m. on the Rate
Fixing Day for that Interest Period
Until replaced, the relevant Telerate Monitor pages are "3750" or
"3740" as appropriate, depending on the particular currency, or, in
the case of a currency the rate for which is not shown on pages 3750
or 3740, such other page as is notified by the Agent to the Borrower
before the relevant Advance is made in that particular currency
"LLOYDS LIBOR" means the overnight rate at which Lloyds Bank Plc is
offering deposits in the
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relevant currency to prime banks in the Inter-bank Market
"MAJORITY BANKS" means Revolving Credit Facility Banks whose
Advances together exceed 66 2/3% of the total Advances (or, if there
are no Advances, Banks whose Revolving Credit Facility Commitments
together exceed 66 2/3% of the total Revolving Credit Facility
Commitments)
"MANDATORY COSTS" means, in relation to any Interest Period (or part
of an Interest Period) relating to an Advance or overdue sum, the
percentage rate per annum determined by the Agent in accordance with
Schedule 2
"MARGIN REGULATIONS" means Regulations G, T, U and X of the Board of
Governors of the United States Federal Reserve System, as in effect
from time to time, and any successor regulations
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (i) the
ability of the Obligors taken together to perform the payment
obligations under this Agreement, or (ii) the business, Assets or
financial condition of the Group taken as a whole
"MATURITY DATE" means the fifth anniversary of the date on which the
first drawdown is made
"MERGER" means the merger of Decimal Music Corporation with and into
Decimal pursuant to the Merger Agreement
"MERGER AGREEMENT" means the agreement and plan of merger between
Decimal Music Corporation, Kirsty Inc., the Borrower and Decimal in
the form of a draft dated 2 September 1997 providing for the merger
of Decimal Music Corporation with and into Decimal as described
therein as such draft may be amended but in the case of any
amendments which are in any respect materially adverse to the
interests of the Banks with the prior consent of the Banks to such
amendment
"NET BORROWINGS" means, at any time, Borrowings at such time less
the lower of (i) Cash and Cash Equivalents at such time and (ii) the
Applicable Amount and for this purpose "APPLICABLE AMOUNT" means
U.S.$100,000,000 in respect of the first Test Date and
U.S.$60,000,000 thereafter
"NET DISPOSAL PROCEEDS" means, in relation to a Disposal, the
Disposal Proceeds after deducting all costs and expenses reasonably
and properly incurred in conjunction with and duties and taxes
reasonably attributable to such disposal
"NET EXTERNAL DEBT" means Borrowings less Cash and Cash Equivalents
(without limit on Cash and Cash Equivalents)
"NET INTEREST PAYABLE" means, in respect of a period, Interest
Payable less Interest Receivable, in each case, for that period
"NEW BANK" means a bank or financial institution to which a Bank
seeks to novate (or, as the case may be, has novated) all or part of
its rights and/or obligations in accordance with Clause 28.3
"NEW SHARES" has the meaning attributed thereto in the Rights Issue
Underwriting Agreement
"NON-STANDARD DURATION" means, in relation to an Interest Period, a
duration other than one, two
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three or six months
"NOVATION NOTICE" means a notice substantially in the form set out
in Schedule 3
"OBLIGORS" means the Borrower and the Guarantors from time to time
and "OBLIGOR" means any one of them
"OPTIONAL CURRENCY" means a currency (other than U.S. Dollars) which
is freely available, transferable and convertible into U.S. Dollars
and deposits of which are dealt in on the Inter-bank Market and,
after 1 January 1999, euros (as defined in Schedule 13)
"OVERDRAFT FACILITY" means the overdraft and ancillary facilities
granted by the Overdraft Facility Bank to the Borrower under Clause
2.1.2
"OVERDRAFT FACILITY LETTER" means the letter between the Borrower
and the Overdraft Facility Bank dated 2 September 1997 relating to
the Overdraft Facility
"PBIT" means, in relation to any period, consolidated profit of the
Group for that period from continuing operations but before tax and
excluding:
(i) any exceptional or extraordinary items and
(ii) Net Interest Payable for that period
and adjusted to ensure that such consolidated profit
conforms with the definitions of "HEADLINE EARNINGS" as
described in paragraphs 21 and 22 of the Statement of
Investment Practice No. 1 published by the Institute of
Investment Management and Research (including, for the
avoidance of doubt, adjustments to exclude any profits or
losses arising on the termination or sale of any
discontinued operation and adjustments to exclude any
profits or losses arising on the sale of fixed assets or
businesses or on their permanent diminution or write-off
(including the write-off and amortisation of goodwill))
"PLACE OF PAYMENT" means the principal financial centre of the
country of the currency to be paid (or, if there is more than one
such centre, one of those centres as selected by the Agent) or such
other financial centre as the Borrower, with the consent of the
Agent (such consent not to be unreasonably withheld), may select
"POTENTIAL EVENT OF DEFAULT" means any event or circumstance which,
if it continued after the giving of any notice, the expiry of any
grace period, and/or (as the case may be) the making of any
determination by the Majority Banks, provided for in Clause 20.1,
would become an Event of Default
"PRINCIPAL SUBSIDIARY" means, at any particular time, a member of
the Group (other than the Borrower) whose gross revenues or
operating profits attributable to the Borrower (having regard to its
direct and/or indirect beneficial interest in the shares, or the
like, of that member of the
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Group) represent at least 5% of the consolidated gross revenues or,
as the case may be, operating profits of the Group. For this
purpose:
(i) in the case of a member of the Group which itself has
Subsidiaries and/or Subsidiary Undertakings, the
calculation shall be made by comparing the consolidated
gross revenues or, as the case may be, operating profits
of it and its Subsidiaries and Subsidiary Undertakings
(if any) to those of the Group
(ii) revenues which arise from transactions between members
of the Group and which would be eliminated in the
consolidated accounts of the Group shall be excluded
(iii) the gross revenues or operating profits of a member of
the Group shall be calculated by reference to:
(a) the accounts of that member of the Group (or,
as the case may be, a consolidation of the
accounts of it and its Subsidiaries and
Subsidiary Undertakings (if any)) used for the
purpose of the then latest audited consolidated
accounts of the Group referred to in Clause
17.1.9 (or, as the case may be, delivered to
the Agent under Clause 18) or
(b) if the Person became a member of the Group
after the end of the financial period to which
those consolidated accounts of the Group
relate, the then latest audited accounts of
that member of the Group (or, as the case may
be, a consolidation of the then latest audited
accounts of it and its Subsidiaries and
Subsidiary Undertakings (if any))
(iv) the gross revenues or operating profits of the Group
shall be calculated by reference to the then latest
audited consolidated accounts of the Group referred to
in Clause 17.1.9 (or, as the case may be, delivered to
the Agent under Clause 18), adjusted as appropriate to
reflect the gross revenues or operating profits of any
Person which has become or ceased to be a member of the
Group after the end of the financial period to which
those accounts relate
(v) on a Principal Subsidiary transferring all or
substantially all of its Assets to another member of the
Group, the transferor (if it is not the holding company
of the transferee) shall cease to be a Principal
Subsidiary and (if the transferee is not the Borrower or
a Principal Subsidiary) the transferee shall become a
Principal Subsidiary
(vi) a member of the Group shall (if not already a Principal
Subsidiary) become a Principal Subsidiary on completion
of any other intra-Group transfer or reorganisation if
it would fulfil any of the tests in the first paragraph
of this definition, were all relevant accounts to be
prepared as at the completion of that
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transfer or reorganisation on the basis of the then
latest audited consolidated accounts of the Group
referred to in Clause 17.1.9 (or, as the case may be,
delivered to the Agent under Clause 18), adjusted as
appropriate to reflect the matters referred to in (iv)
above and to reflect all such transfers or
reorganisations after the date of those then latest
audited consolidated accounts of the Group.
Except as provided in (v) above, once a Person has become a
Principal Subsidiary, it shall remain one until it has been
demonstrated to the reasonable satisfaction of the Majority Banks
that it has ceased to fulfil the requirements of this definition
"QUALIFYING LENDER" means any Person:
(a) who:
(i) is a bank within the meaning of Section 840A of
the Income and Corporation Taxes βββ ββββ;
(ii) is beneficially entitled to the principal
amount of and all interest received by it on an
Advance; and
(iii) brings within the charge to United Kingdom
corporation tax all such interest received by
it
except that, if Section 840A or Section 349 of the Income and
Corporation Taxes Act 1988 is repealed, modified, extended or
re-enacted the Agent may at any time and from time to time (after
consultation with the Borrower and the Banks) amend this paragraph
(a) in such manner as it may reasonably determine to be appropriate
by giving notice of the amended paragraph (a) to the Borrower and
the Banks or
(b) is resident (as such term is defined in the
appropriate double taxation treaty) in a country
with which the United Kingdom has a double taxation
treaty giving residents of that country complete
exemption from the imposition of any withholding or
deduction for or on account of United Kingdom Tax on
interest (and which does not carry on business in
the United Kingdom through a permanent establishment
with which the indebtedness under this Agreement in
respect of which the interest is paid is effectively
connected) (a "TREATY LENDER") and for this purpose
"DOUBLE TAXATION TREATY" means any convention or
agreement between the government of the United
Kingdom and any other government for the avoidance
of double taxation and the prevention of fiscal
evasion with
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respect to taxes on income and capital gains and is
beneficially entitled to the principal amount of and all
interest received by it on an Advance
"RATE FIXING DAY" means:
(a) in the case of Sterling, the first day of the relevant
Interest Period or
(b) in the case of any other currency, the second Business
Day before the first day of the relevant Interest Period
or, as the case may be, determined in accordance with
Schedule 13
"REDUCTION DATE" has the meaning given to it in Clause 6.2
"REFERENCE BANKS" means subject to Clause 28.5.1, the principal
London office of the Agent, ING Bank N.V., London Branch, the
principal London office of The Royal Bank of Scotland plc and such
other Bank or Banks as may be agreed between the Agent (acting on
the instructions of the Majority Banks) and the Borrower from time
to time (or, in the absence of such agreement, as the Agent (acting
on the instructions of the Majority Banks) shall designate by notice
to the Borrower)
"REGULATION D COSTS" means any costs under Regulation D of the Board
of Governors of the United States Federal Reserve System
"REQUIRED AMOUNT" means:
(a) in the case of U.S. Dollars, a minimum of U.S.$15,000,000
and a whole multiple of U.S.$5,000,000 (or such other
amount as may be agreed by the Borrower and the Agent)
(b) in the case of Sterling, a minimum of pound
sterling10,000,000 and a whole multiple of pound
sterling5,000,000 (or such other amount as may be agreed
by the Borrower and the Agent)
(c) in the case of an Optional Currency, such amount as is
from time to time agreed by the Borrower and the Agent or,
failing agreement, the equivalent (calculated as at or
about the Relevant Time and rounded on such basis as may
reasonably be determined by the Agent and notified to the
Borrower) of the Required Amount for U.S. Dollars
"RESTATEMENT DATE" means the date on which the Amendment and
Restatement Agreement becomes effective
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"REVOLVING CREDIT FACILITY" means the revolving credit facility
granted by the Revolving Credit Facility Banks to the Borrower under
Clause 2.1.1
"REVOLVING CREDIT FACILITY COMMITMENT" means, in relation to a
Revolving Credit Facility Bank and subject as provided in this
Agreement, the amount set opposite its name under the heading
"REVOLVING CREDIT FACILITY COMMITMENT" at the end of this Agreement
"REVOLVING CREDIT FACILITY REPAYMENT DATE" means, in relation to an
Advance, the last day of the Interest Period for that Advance
"RIGHTS ISSUE" means the rights issue of Stock to be fully
underwritten by the Underwriter pursuant to the Rights Issue
Underwriting Agreement whose terms and conditions are set out in the
Circular
"RIGHTS ISSUE UNDERWRITING AGREEMENT" means the underwriting
agreement in the form of a draft dated 1 September 1997 between the
Borrower, Music (Jersey) Limited and the Underwriter in respect of
the Rights Issue as such draft may be amended but in the case of any
amendments which are in any respect materially adverse to the
interests of the Banks with the prior consent of the Banks to such
amendment
"SHAREHOLDERS' AGREEMENT" means the agreement between the Borrower,
Decimal Music Corporation, Kirsty Inc. and certain shareholders of
Decimal in the form of a draft dated 2 September 1997 under which
those shareholders have agreed to vote in favour of the Merger at
the Decimal shareholder meeting convened to approve the Merger as
such draft may be amended but in the case of any amendments which
are in any respect materially adverse to the interests of the Banks
with the prior consent of the Banks to such amendment
"STERLING" and "Pound sterling" mean the lawful currency of the
United Kingdom for the time being
"STOCK" means the convertible redeemable unsecured loan stock of
Music (Jersey) Limited to be issued in connection with the Rights
Issue, having the rights and being subject to the restrictions
summarised in the Circular
"STOCK OPTION AGREEMENT" means the agreement between the Borrower
and Decimal in the form of a draft dated 2 September 1997 under
which Decimal has granted to the Borrower an irrevocable option to
purchase certain shares of Decimal as such draft may be amended but
in the case of any amendments which are in any respect materially
adverse to the interests of the Banks with the prior consent of the
Banks to such amendment
"STOCK OPTIONS" means the Options referred to in article 4.2(d) of
the Merger Agreement
"SUBSIDIARY" means in relation to any Person (its "HOLDING
COMPANY"), at any particular time, any other Person which is then a
subsidiary (as defined in Sections 736 and 736A of the Companies Act
1985) of that Person or which is a partnership having separate legal
personality which is wholly owned (directly or indirectly) by the
Borrower
"SUBSIDIARY UNDERTAKING" means, in relation to any Person at any
particular time, any other Person which is then a subsidiary
undertaking (as defined in Section 258 of the Companies Act 1985) of
that Person
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"SYNDICATION" means the syndication of the Facilities by the
Arrangers to Qualifying Lenders in accordance with Clause 28.3
"TAKEOVER DOCUMENTS" means the Merger Agreement, the Rights Issue
Underwriting Agreement, the Shareholders' Agreement and the Stock
Option Agreement
"TEST DATE" is defined in Clause 19.6.2
"TREATY LENDER" is defined in paragraph (b) of the definition of
Qualifying Lender
"UNDERWRITER" means Baring Brothers International Limited of ββ
ββββββ ββββ, ββββββ ββββ βββ.
1.2 Construction of Certain References: Except to the extent that the
context requires otherwise, any reference in this Agreement to:
an Act of Parliament or any Section of or other provision of an Act
of Parliament shall be construed, at any particular time, as
including a reference to any modification, extension or re-enactment
thereof then in force and all instruments, orders and regulations
then in force and made under or deriving validity from the relevant
Act or provision
"ACTING IN CONCERT" shall have the meaning attributed to that term
in the City Code on Takeovers and Mergers
an "AFFILIATE" of any Person means any Subsidiary or holding company
of that Person, or any Subsidiary of any such holding company, or
any other Person in which that first Person or any such holding
company or Subsidiary owns at least 20% of the equity share capital
or the like
an "AGENCY" of a state includes any agency, authority, central bank,
department, government, legislature, minister, ministry, official,
or public or statutory Person (whether autonomous or not) of, or of
the government of, that state
a document in an "AGREED FORM" means that document in the form
initialled by or on behalf of the Borrower and the Agent (with such
additions or alterations as may be agreed between the Agent and the
Borrower in writing)
this "AGREEMENT" includes this Agreement as from time to time
amended, supplemented, novated, restated or replaced and any
document which amends, supplements, novates, restates or replaces
this Agreement, in accordance with Clause 28.3 or 29.2
the "ASSETS" of any Person means all or any part of its business,
undertaking, property, assets, revenues (including any right to
receive revenues) and uncalled capital, wherever situated
"BORROWED MONEY" means any Indebtedness (a) for or in respect of
money borrowed or raised (whether or not for cash), by whatever
means (including acceptances, deposits, discounting, factoring,
finance leases, hire purchase, sale-and-lease back,
sale-and-repurchase and any form of off-balance sheet financing),
(b) under any interest rate swap or currency exchange transaction,
forward foreign exchange transaction, cap, collar or option
transaction or any other transaction
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entered into in connection with the management of risks relating to
any of the other items comprised in Borrowed Money (determined,
where applicable, having regard for any netting provisions), (c) for
the purchase price of Assets or services deferred for more than 90
days after the date those Assets or services (or the benefit of
them) are acquired (other than goods or services obtained on normal
commercial terms in the ordinary course of trading) or (d) any
Guarantee in respect of any Indebtedness falling within
(a), (b) or (c) above
"CONSENT" also includes an approval, authorisation, exemption,
filing, licence, order, permission, recording or registration (and
references to obtaining Consents shall be construed accordingly)
a "DIRECTIVE" includes any present or future directive, regulation,
request, requirement, rule or credit restraint programme of any
Agency of any state or of any self-regulating organisation (whether
or not having the force of law (but if not having the force of law,
only if compliance with the Directive is in accordance with the
general practice of Persons to whom the Directive is intended to
apply))
the "EQUIVALENT" in any currency (the "FIRST CURRENCY") of any
amount in another currency (the "SECOND CURRENCY") shall be
construed as a reference to the amount in the first currency which
could be purchased with that amount in the second currency at the
spot rate of exchange at which the Agent would have been prepared
and able to purchase that amount in the first currency for the
second currency in the London foreign exchange market for value as
at the relevant time on the relevant date specified in this
Agreement (or, where no such time and date is specified, for value
at such time and on such date as the Agent may from time to time
reasonably determine to be appropriate in the circumstances)
a "GUARANTEE" also includes an indemnity, and any other obligation
(whatever called) of any Person to pay, purchase, provide funds
(whether by the advance of money, the purchase of or subscription
for shares or other securities, the purchase of Assets or services,
or otherwise) for the payment of, indemnify against the consequences
of default in the payment of, or otherwise be responsible for, any
Indebtedness of any other Person (and "GUARANTEED" and "GUARANTOR"
shall be construed accordingly)
"INDEBTEDNESS" includes any obligation (whether present or future,
actual or contingent, secured or unsecured, as principal, surety or
otherwise) for the payment or repayment of money
a "LAW" includes common or customary law and any constitution,
decree, judgment, legislation, order, ordinance, regulation,
statute, treaty or other legislative measure, in each case of any
jurisdiction whatever (and "LAWFUL" and "UNLAWFUL" shall be
construed accordingly)
any "OBLIGATION" of any Person under this Agreement or any other
agreement or document shall be construed as a reference to an
obligation expressed to be assumed by or imposed on it under this
Agreement or, as the case may be, that other agreement or document
(and "DUE", "OWING", "PAYABLE" and "RECEIVABLE" shall be similarly
construed)
a "PERSON" includes any individual, company, corporation, firm,
partnership, joint venture, undertaking, association, organisation,
trust, state or Agency of a state (in each case, whether or not
having separate legal personality)
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the "RELEVANT TIME" for any action means the time and the date
specified in Schedule 7 for that action
"SECURITY" includes any mortgage, pledge, lien, hypothecation,
security interest or other charge or encumbrance and any other
agreement or arrangement having substantially the same economic
effect (including any "FLAWED ASSET" arrangement but excluding
finance leases) (and "SECURED" shall be construed accordingly)
"TAX(ES)" includes any present or future tax, levy, impost, duty,
charge, fee, deduction or withholding of any nature and whatever
called, by whomsoever, on whomsoever and wherever imposed, levied,
collected, withheld or assessed
"TAX ON OVERALL NET INCOME" of a Person shall be construed as a
reference to Tax (other than Tax deducted or withheld from any
payment) imposed on that Person by the jurisdiction in which its
principal office (and/or, in the case of a Bank, its Facility
Office) is located by reference to (a) the net income, profits or
gains of that Person worldwide or (b) such of its net income,
profits or gains as arise in or relate to that jurisdiction
a "TIME OF THE DAY" is to London time unless otherwise stated
the "WINDING-UP" of a Person also includes the amalgamation,
reconstruction, administration, dissolution, liquidation, merger or
consolidation of that Person, and any equivalent or analogous
procedure under the law of any jurisdiction.
1.3 Calculation of Financial Covenants: Borrowings, EBITDA, Interest
Payable, Interest Receivable, Net Interest Payable and PBIT shall be
calculated and interpreted in accordance with Applicable Accounting
Principles and shall be expressed in Sterling.
1.4 Headings: Headings shall be ignored in construing this Agreement.
2 THE FACILITIES
2.1 AMOUNT:
2.1.1 The Revolving Credit Facility βββββ βββββ to the Borrower an
amortising revolving credit facility of up to U.S.$390,000,000
available in U.S. Dollars and/or Optional Currencies and
2.1.2 The Overdraft Facility Bank grants to the Borrower an
overdraft and ancillary facilities incorporating an
uncommitted money market line in accordance with the terms of
the Overdraft Facility Letter.
2.2 PRO RATA PARTICIPATION IN ADVANCES:
Each Revolving Credit Facility Bank will participate through its
Facility Office in each Advance to be made under the Revolving
Credit Facility in the proportion borne by its Available Revolving
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Credit Facility Commitment to the Available Revolving Credit
Facility when the Agent receives the notice requesting that Advance
(unless between then and the time for making that Advance, its
Available Revolving Credit Facility Commitment is reduced to zero,
in which case the amount of that Advance will be reduced
accordingly).
2.3 PURPOSE: The Borrower shall use the entire proceeds of each Advance
and the Overdraft Facility for its general corporate purposes but
neither the Agent, the Arrangers, the Overdraft Facility Bank nor
any Revolving Credit Facility Bank need check that it does use any
of the Revolving Credit Facility or the Overdraft Facility for any
such purpose.
2.4 CALCULATION OF AVAILABLE REVOLVING CREDIT FACILITY COMMITMENT: In
order to calculate the amount of the Available Revolving Credit
Facility and each Bank's Available Revolving Credit Facility
Commitment in connection with a proposed Advance (whether for the
purpose of Clause 2.2 or 4.1.2):
2.4.1 any Advances with Revolving Credit Facility Repayment Dates on
or before the proposed date of that Advance shall be deemed to
have been repaid and
2.4.2 if any other requests are outstanding for Advances to be made
on or before the proposed date of that Advance, all Advances
to which those requests relate shall be deemed to be
outstanding.
3 CONDITIONS PRECEDENT
3.1 Conditions Precedent to each Advance: Advances will be made by the
Banks to and as requested by the Borrower if the additional
conditions set out in Clauses 3.1.1 to 3.1.3 and 4 are fulfilled.
3.1.1 No event mentioned in Clause 14 occurs or has occurred and is
continuing in relation to that Advance.
3.1.2 All representations and warranties in Clause 17 (except to any
extent waived in accordance with Clause 29.2) are correct on
the date of this Agreement and, in the case of those to be
repeated under Clauses 17.1.18 and 17.3.5, would be correct if
repeated on the proposed date of that Advance by reference to
the circumstances then existing.
3.1.3 No Event of Default or Potential Event of Default has occurred
on or before that date, or will occur as a result of making
that Advance, other than any waived in accordance with Clause
29.2.
3.2 CONDITIONS PRECEDENT TO UTILISATION OF OVERDRAFT FACILITY: The
obligation of the Overdraft Facility Bank to provide the overdraft
is subject to the further condition precedent that the Overdraft
Facility Bank receives from the Borrower the Overdraft Facility
Letter duly executed by
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the Borrower and the Overdraft Facility Bank.
4 DRAWDOWN OF REVOLVING CREDIT FACILITY
4.1 DRAWDOWN REQUEST: Not later than the Relevant Time (or, as the case
may be, such later time as may be acceptable to the Agent and the
Revolving Credit Facility Banks for the purpose of the relevant
request), the Agent has received from the Borrower a notice
substantially in the form set out in Schedule 4 specifying:
4.1.1 the proposed date of that Advance, which must be a Business
Day falling one month or more before the Maturity Date
4.1.2 its amount which must be or produce a Dollar Amount equal to
or less than the Available Revolving Credit Facility, and if
less must be a Required Amount
4.1.3 its Interest Period, which must be in accordance with Clause
8.1
4.1.4 its currency, which must be U.S. Dollars, Sterling or an
Optional Currency
4.1.5 details of the bank (which must be in the Place of Payment for
the relevant currency) and account (if different from that
specified in Clause 16.3.2) to which the Borrower wishes the
proceeds of that Advance to be made available by the Agent.
4.2 NOTIFICATION OF DRAWDOWN REQUESTS: The Agent shall promptly notify
each Revolving Credit Facility Bank of the details of, and the
amount of that Bank's share of, each Advance.
4.3 LIMIT ON NUMBER OF ADVANCES/CURRENCIES: Not more than 5 Advances may
be outstanding at any one time. The Advances may not be denominated
in more than 4 currencies at any one time.
5 OVERDRAFT FACILITY
5.1 UTILISATION: The Overdraft Facility may be used by the Borrower in
accordance with the terms of the Overdraft Facility Letter and shall
include a Sterling overdraft (the "STERLING OVERDRAFT") and an
uncommitted money market line (the "MONEY MARKET LINE") in the
normal way, but the Overdraft Facility Bank shall not be obliged to
permit any, or any further, utilisation of the Overdraft Facility if
an Event of Default or Potential Event of Default has occurred at or
before that time, or will occur as a result of that utilisation,
other than one which has been waived in accordance with Clause 29.2.
5.2 INTEREST: Interest shall accrue on a daily basis on the amount of
the Sterling Overdraft and the Money Market Line utilised at the
beginning of that day at the rate per annum calculated as follows:
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5.2.1 Sterling Overdraft - The aggregate of:
(i) the Overdraft Facility Bank's base rate and
(ii) 1% per annum
5.2.2 Money Market Line - The aggregate of:
(i) Lloyds LIBOR
(ii) the Applicable Margin and
(iii) Mandatory Costs.
Interest shall be debited by the Overdraft Facility Bank to the
relevant current account of the Borrower on the dates which the
Overdraft Facility Bank debits interest on overdrafts in accordance
with the terms of the Overdraft Facility Letter and on the date on
which the Overdraft Facility becomes repayable in accordance with
the terms of the Overdraft Facility Letter.
5.3 CHARGES: The Overdraft Facility Bank shall from time to time, and in
any event on the date on which the Overdraft Facility becomes
repayable, debit to the relevant current account of the Borrower
bank charges in accordance with the terms of the Overdraft Facility
Letter.
5.4 TERMINATION AND REPAYMENT: The Overdraft Facility Bank may terminate
and cancel the Overdraft Facility in accordance with the terms of
the Overdraft Facility Letter. Upon termination and cancellation the
Borrower shall repay the Overdraft Facility together with all unpaid
interest and bank charges due or accrued in respect of the Overdraft
Facility.
5.5 PAYMENTS: On each date on which any sum is due from the Borrower to
the Overdraft Facility Bank in respect of the Overdraft Facility,
the Borrower shall make that sum available to the Overdraft Facility
Bank so as to be received by the Overdraft Facility Bank in Sterling
and in immediately available cleared funds in accordance with the
terms of the Overdraft Facility Letter.
5.6 Interpretation: In the event of any inconsistency between the terms
of this Agreement and the Overdraft Facility Letter in relation to
the Overdraft Facility, the terms of the Overdraft Facility Letter
shall prevail.
6 REPAYMENT AND PREPAYMENT
6.1 REPAYMENT OF ADVANCES: The Borrower shall repay each Advance on its
Revolving Credit Facility Repayment Date, together with all unpaid
interest accrued on that Advance. However, as the facility is
revolving, any amount repaid before the Maturity Date will remain
available for reborrowing on the terms and conditions of this
Agreement.
6.2 REDUCTION OF REVOLVING CREDIT FACILITY: Subject to Clause 7.1, the
Revolving Credit Facility Commitments shall be reduced on the
following dates (the "REDUCTION DATES") by the amount set
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opposite such date below:
REDUCTION DATE REDUCTION
24 November 2000 U.S.$5,000,000
24 November 2001 U.S.$109,000,000
24 November 2002 U.S.$276,000,000
The Borrower shall ensure that the aggregate of the Dollar Amounts
of all Advances outstanding at the close of business in London on
each such Reduction Date do not exceed the Revolving Credit Facility
Commitments as so reduced on each such date. Any such reduction
shall reduce the Revolving Credit Facility Commitment of each
Revolving Credit Facility Bank rateably.
6.3 PREPAYMENT OF ALL BANKS: The Borrower may prepay any Advance or any
part of it in a Required Amount without premium or penalty, in each
case if such Borrower gives to the Agent not less than 10 Business
Days' notice of the Advance to be prepaid and the date and amount of
the prepayment. Any such prepayment must be accompanied by accrued
interest on the amount prepaid and, if made otherwise than on an
Interest Payment Date, by any other sum then due under Clause 22.1
or any other provision of this Agreement. Any amount so prepaid
shall remain available for reborrowing on the terms and subject to
the conditions set out in this Agreement.
6.4 PREPAYMENT OF CERTAIN BANKS: If:
6.4.1 the Borrower becomes obliged to pay any Tax or other amount
for the account of any Bank under Clause 11.2 or 13 and
6.4.2 the Borrower gives to that Bank not less than 10 Business
Days' notice of the date of prepayment, the Borrower may
prepay all (but not part only) of that Bank's share of all
(but not some only) Advances without premium or penalty on the
date of prepayment specified in that notice. Any such
prepayment must be accompanied by all unpaid accrued interest
on that Bank's Advances, all unpaid fees accrued to that Bank
and any other sum then due to that Bank under Clause 22.2 or
any other provision of this Agreement.
6.5 MISCELLANEOUS: Any notice of prepayment given by the Borrower under
this Agreement will oblige the Borrower to prepay in accordance with
that notice. Except as expressly provided in this Agreement, the
Borrower may not repay or prepay all or any part of an Advance.
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7 CANCELLATION
7.1 OF ALL REVOLVING CREDIT FACILITY BANKS: The Borrower may cancel the
Available Revolving Credit Facility, or any part of it which is
U.S.$10,000,000 or a higher whole multiple of U.S.$5,000,000,
without premium or penalty at any time before the Maturity Date by
giving to the Agent not less than 10 Business Days' notice of the
date and amount of the cancellation. Any such partial cancellation
shall reduce each Revolving Credit Facility Bank's Revolving Credit
Facility Commitment rateably.
7.2 OF CERTAIN BANKS: If the events specified in Clauses 6.4.1 and 6.4.2
occur, the relevant Revolving Credit Facility Bank's Commitment
shall be cancelled (without premium or penalty) upon the Agent
receiving the relevant notice under Clause 6.4.2. In addition, if
any event specified in Clause 6.4.1 occurs, the Borrower may cancel
all (but not part only) of that Revolving Credit Facility Bank's
Commitment without premium or penalty at any time before the
Revolving Credit Facility Commitment Termination Date by giving to
that Revolving Credit Facility Bank not less than 10 Business Days'
notice of the date of the cancellation.
7.3 LIMITATION OF CANCELLATION RIGHTS: The Borrower may not cancel all
or any part of the Revolving Credit Facility Commitments except as
expressly provided in this Agreement.
8 INTEREST
8.1 REVOLVING CREDIT FACILITY INTEREST PERIODS: Interest shall be
calculated on each Advance by reference to the Interest Period for
that Advance. Each Interest Period shall be of one, two, three or
six month duration or a Non-standard duration as selected by the
Borrower in the notice of drawdown relating to that Advance, except
as follows:
8.1.1 The Borrower may not select an Interest Period ending after
the Maturity Date.
8.1.2 The selection by the Borrower of an Interest Period of a
Non-standard duration of
(i) less than 6 months shall not be effective if, before the
Relevant Time, the Agent receives from the Majority
Banks a notice to the effect that they do not expect to
be able to fund their share of the Advance for that
Interest Period by obtaining a matching deposit in the
relevant currency in the Inter-bank market at the
relevant time. As soon as practicable after that
deadline, the Agent shall notify the Borrower and the
Majority Banks whether that selection is effective. If
it is not, that Interest Period shall, subject to these
exceptions, be of the alternative duration (if any)
selected by the Borrower in its notice or
(ii) more than 6 months shall not be effective if, before the
Relevant Time, the Agent
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receives from any Bank a notice to the effect that it
does not expect to be able to fund its share of the
Advance for that Interest Period by obtaining a matching
deposit in the relevant currency in the Inter-bank
market at the relevant time. As soon as practicable
after that deadline, the Agent shall notify the Borrower
and the Banks whether that selection is effective. If it
is not, that Interest Period shall, subject to these
exceptions, be of the alternative duration (if any)
selected by the Borrower in its notice.
8.1.3 The Borrower shall select Interest Periods of only 1 month's
duration in the period from the time the date of this
Agreement to the earlier of (i) the date falling three months
after first drawdown and (ii) close of the Syndication and
shall consult with the Arrangers prior to selecting Interest
Periods during such period in the event that a shorter
Interest Period is appropriate to facilitate the Syndication.
8.2 NORMAL INTEREST RATE: The rate of interest applicable to an Advance
for all or any part of a particular Interest Period shall be the
rate per annum (as determined by the Agent) equal to the sum of:
8.2.1 the Applicable Margin
8.2.2 LIBOR and
8.2.3 the Mandatory Costs.
8.3 NOTIFICATION OF INTEREST PERIODS AND RATES: The Agent shall promptly
notify (i) the Banks of the duration of each Interest Period
(including any Interest Period selected by the Agent under Clause
21) and (ii) the Borrower and the Banks of each rate of interest
determined in accordance with Clause 8.2 or 21.
8.4 PAYMENT OF INTEREST: On the last day of each Interest Period, the
Borrower shall pay the unpaid interest accrued during that Interest
Period on the Advance or overdue sum to which it relates at the
rate(s) applicable for that Interest Period and, in the case of an
Interest Period of more than six months, the interest accrued during
the period ending six months after drawdown (and each successive
period of six months during that Interest Period, as the case may
be) shall be paid on the last day of each such six-month period.
9 MULTICURRENCY OPTION
9.1 REVOLVING CREDIT FACILITY REQUEST FOR AN OPTIONAL CURRENCY: Not
later than 4 p.m. on the third Business Day before the first day of
any Interest Period in relation to which the Borrower so requests
that an Advance be denominated in an Optional Currency other than
Sterling, a Revolving Credit Facility Bank may notify the Agent
that:
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9.1.1 that Revolving Credit Facility Bank expects to be unable to
obtain deposits in the relevant currency to fund its share of
the relevant Advance in the London inter-bank market at the
relevant time or
9.1.2 it is impossible, impracticable, unlawful or contrary to a
Directive for that Revolving Credit Facility Bank's share of
that Advance to be denominated in that Optional Currency
during that Interest Period
If the Agent receives any such notice, it shall promptly notify the
Borrower and the Revolving Credit Facility Banks.
9.2 FALLBACK CURRENCY: If in relation to any Interest Period relating to
an Advance in an Optional Currency other than Sterling, the Agent
receives a notice from any Revolving Credit Facility Bank in
accordance with Clause 9.1 that Advance shall during that Interest
Period instead be denominated in U.S. Dollars and in the Dollar
Amount of that Advance.
9.3 AMOUNT OF CURRENCY TO BE MADE AVAILABLE:
The amount to be made available by a particular Bank in response to
a particular notice requesting an Advance shall be:
9.3.1 if the relevant Advance is to be made in Dollars, that Bank's
proportion (determined in accordance with Clause 2) of the
Dollar Amount of that Advance or
9.3.2 if that Advance is to be made in an Optional Currency, that
Bank's proportion (determined in accordance with Clause 2) of
the amount of the relevant Optional Currency specified in that
notice.
10 FEES
10.1 UNDERWRITING AND ARRANGEMENT FEE: The Borrower shall pay to the
Arrangers an underwriting and arrangement fee as stated in a letter
of today's date from the Arrangers to, and countersigned by, the
Borrower.
10.2 AGENCY FEE: The Borrower shall pay to the Agent for its own account
an agency fee as stated in a letter of today's date from the Agent
to, and countersigned by, the Borrower.
10.3 COMMITMENT FEE: The Borrower shall pay in U.S. Dollars a commitment
fee calculated on a daily basis at the rate equal to half the
Applicable Margin on the Dollar Amount of each Revolving Credit
Facility Bank's Available Revolving Credit Facility Commitment on
the amount outstanding on each day during the period beginning on
the date of this Agreement and ending on the Maturity Date. That fee
shall be payable quarterly in arrear from the date of this Agreement
and on the Maturity Date or any earlier date on which that Bank's
Revolving Credit Facility Commitment first
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equals zero.
11 TAXES
11.1 PAYMENTS TO BE FREE AND CLEAR: All sums payable by any of the
Obligors under this Agreement shall be paid free of any restriction
or condition and (except to the extent required by law) free and
clear of and without any deduction or withholding, whether for or on
account of Tax, by way of set-off or otherwise.
11.2 GROSSING-UP OF PAYMENTS:
11.2.1 If any of the Obligors or any other Person (whether or not a
party to, or on behalf of a party to, this Agreement) is
required by law at any time to deduct or withhold any Tax or
other amount from any sum paid or payable by, or received or
receivable from, such Obligor under this Agreement, that
Obligor shall at the same time pay such additional amount as
is necessary to ensure that the Agent or, as the case may be,
the Bank to which that sum is due receives and retains (free
from any liability other than Tax on its own Overall Net
Income) a net sum equal to what it would have received and so
retained had no such deduction or withholding been required or
made. However, if:
(i) on the due date of a payment of interest to a Bank on an
Advance, that Bank is not a Qualifying Lender and
(ii) as a result, such Obligor is required to deduct or
withhold United Kingdom income tax from that payment of
interest or
(iii) in the case of a Treaty Lender, it has failed to
promptly take all necessary steps to obtain the benefit
of such double taxation treaty
that Obligor shall not be so required to pay an additional
amount in respect of any such deduction or withholding unless
it results from the introduction of or any change in, or in
the interpretation or application of, any relevant law or any
relevant practice of the Inland Revenue after this Agreement
is entered into.
11.2.2 If any of the Obligors or the Agent or any Bank (whether or
not a party to, or on behalf of a party to, this Agreement)
must at any time pay any Tax or other amount on, or calculated
by reference to, any sum received or receivable (including any
sum received or receivable under this Clause 11.2.2) by the
Agent or, as the case may be, any Bank under this Agreement
(except for a payment by the Agent or a Bank of Tax on its own
Overall Net Income), that Obligor shall pay or procure the
payment of that Tax or other amount before any interest or
penalty becomes payable or, if that Tax or other amount is
payable and paid by the Agent or any Bank, shall reimburse it
on demand for the
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amount paid by it.
11.2.3 Within 30 days after paying any sum from which it is required
by law to make any deduction or withholding, and within 30
days after the due date of payment of any Tax or other amount
which it is required by Clause 11.2.2 to pay, any of the
Obligors shall deliver to the Agent evidence reasonably
satisfactory to the Agent or, as the case may be, the relevant
Bank of that deduction, withholding or payment and (where
remittance is required) of the remittance thereof to the
relevant taxing or other authority.
11.2.4 As soon as any of the Obligors is aware that any such
deduction, withholding or payment is required (or of any
change in any such requirement), it shall notify the Agent.
11.3 REFUND OF TAX CREDITS: If:
11.3.1 any of the Obligors makes a payment under Clause
11.2.1 or Clause 11.2.2 (a "TAX PAYMENT") in respect of a
payment to a Bank under this Agreement and
11.3.2 that Bank determines that it has obtained a refund
of Tax or obtained and used a credit against Tax on its
Overall Net Income (a "TAX CREDIT") which that Bank is
able to identify as attributable to that Tax Payment
then, if in its absolute discretion it can do so without any adverse
consequences for itself, that Bank shall reimburse that Obligor such
amount as that Bank determines to be such proportion of that Tax
Credit as will leave that Bank (after that reimbursement) in no
better or worse position in respect of its worldwide Tax liabilities
than it would have been in if no Tax Payment had been required. A
Bank shall have 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 11.3 (and, if so, what amount and when). No Bank shall be
obliged to disclose any information regarding its Tax affairs and
computations.
11.4 TAX WARRANTY BY BANKS: Each Bank severally warrants to the Agent
that, in the case of a Bank which is a Bank on the date of this
Agreement, on the date of this Agreement and, in the case of a Bank
which becomes a Bank after the date of this Agreement, on the date
it becomes a Bank it is a Qualifying Lender and shall notify the
Agent promptly on its becoming aware of this warranty ceasing to be
correct.
12 ILLEGALITY
If at any time any Bank determines that it is or will become
unlawful or contrary to any Directive for it to allow all or part of
its Revolving Credit Facility Commitment to remain outstanding, to
make, fund or have outstanding all or part of its Advances and/or to
carry out all or any of its other obligations under this Agreement
then:
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12.1 upon that Bank notifying the Borrower, its Revolving Credit Facility
Commitment (if any) shall be cancelled and
12.2 the Borrower shall prepay that Bank's share of each Advance on the
next Interest Payment Date of that Advance or on such earlier date
(if any) as that Bank shall certify to be necessary to comply with
the relevant law or Directive with all unpaid accrued interest
thereon, all unpaid fees accrued to that Bank and any other sum then
due to that Bank under Clause 22.2 or any other provision of this
Agreement.
13 INCREASED COSTS
13.1 INDEMNITy: If the Agent or, as the case may be, any Bank determines
that, as a result of the introduction of or any change in, or in the
interpretation or application of, any law or Directive or the
introduction of a new currency in substitution for another currency
after the date of this Agreement:
13.1.1 it incurs a cost in maintaining all or any part of its
Revolving Credit Facility Commitment and/or in making,
maintaining or funding all or any part of its share of any
Advance or any overdue sum and/or maintaining the Overdraft
Facility and/or
13.1.2 any sum received or receivable by it under this Agreement or
the effective return to it under this Agreement or the overall
return on its capital is reduced (except on account of Tax on
its Overall Net Income) and/or
13.1.3 it makes any payment (except on account of Tax on its Overall
Net Income) or forgoes any interest or other return on or
calculated by reference to the amount of any sum received or
receivable by it under this Agreement the Borrower shall
indemnify it against that cost, reduction, payment or forgone
interest or other return (except to the extent that it results
from a deduction or withholding of Tax) and, accordingly,
shall from time to time on demand (whenever made) pay to the
Agent for its own account or, as the case may be, for the
account of that Bank the amount certified by it to be
necessary so to indemnify it. For the avoidance of doubt, the
indemnification referred to in the preceding sentence shall
apply to such Regulation D costs, if any, as may be applied to
the Agent or any Bank from time to time.
13.2 CAPITAL ADEQUACY: Under Clause 13.1 but subject to Clause 13.3, a
Bank shall be entitled to claim indemnification not only for a cost,
reduction, payment or forgone interest or other return directly
attributable to this Agreement, its Revolving Credit Facility
Commitment, its share of any Advance or any overdue sum, but also
for that proportion of any cost, reduction, payment or forgone
interest or other return which that Bank determines to be fairly
allocable to this Agreement, its Revolving Credit Facility
Commitment, its share of any Advance or any overdue sum in relation
to any law or Directive applicable to that Bank or affecting the
conduct of that Bank's business or a type of
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business or the manner in which or the extent to which that Bank
allocates capital resources.
13.3 EXCEPTION: Clause 13.1 shall not oblige the Borrower to compensate
any Bank for any cost, reduction, payment or forgone interest or
other return which results from the implementation, as contemplated
on the signing of this Agreement, of the matters set out in the July
1988 report of the Basle Committee on Banking Regulations and
Supervisory Practices entitled "INTERNATIONAL CONVERGENCE OF CAPITAL
MEASUREMENT AND CAPITAL STANDARDS", the Directive of the Council of
the European Communities on a Solvency Ratio for Credit Institutions
(89/647/EEC of 18 December 1989), the Directive of the Council of
the European Communities on Own Funds of Credit Institutions
(89/299/EEC of 17 April 1989) and/or the Directive of the Council of
the European Communities on the Capital Adequacy of Investment Firms
and Credit Institutions (93/6/EEC), in each case as amended before
the date of this Agreement, unless it results from any change after
the signing of this Agreement in, or in the interpretation or
application of, such matters as contemplated on the signing of this
Agreement.
14 CHANGE IN MARKET CONDITIONS
14.1 TRIGGERING EVENTS: If in relation to any Interest Period:
14.1.1 the Agent is unable to determine LIBOR or
14.1.2 the Agent is notified by the Majority Banks that (a) they are
or expect to be unable to obtain matching deposits in the
Inter-bank Market at or about 11 a.m. on the second Business
Day before the proposed date of that Advance in sufficient
amounts to fund their respective shares of that Advance or (b)
the LIBOR fixed for the Interest Period of that Advance does
not reflect the cost to those Banks of obtaining such deposits
the Agent shall promptly notify the Borrower and the Banks and
that Advance shall not be made.
14.2 NEGOTIATION: The Borrower and the Agent (on behalf of and after
consultation with the Banks) shall then negotiate until not more
than 25 days after the Agent gives that notification with a view to
agreeing an alternative basis for calculating the interest payable
on and/or funding Advances. Any alternative basis agreed in writing
by the Agent (on behalf of and with the consent of the Banks) and
the Borrower within that 25 day period shall take effect in
accordance with its terms.
14.3 SUBSTITUTE INTEREST RATE: If an alternative basis for calculating
the interest payable is not agreed in writing pursuant to Clause
14.2, each Bank's share of any outstanding Advance(s) to which that
Interest Period relates shall during that Interest Period bear
interest at the rate per annum equal to the sum of the Applicable
Margin, the Mandatory Costs and the cost to it (expressed as a rate
per annum) of funding its share during that Interest Period by
whatever means it determines to be appropriate. Each Bank shall
certify that cost to the Borrower as soon as practical after the
Agent's
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notification of the event in question (but in any event at least 2
Business Days before the end of that Interest Period).
15 MITIGATION
If any circumstances arise which result, or would on the giving of
notice result, in the Borrower having to make a payment to or for
the account of a Bank under Clause 11.2.1, 11.2.2, 12.2 or 13 or in
a Bank's Revolving Credit Facility Commitment being cancelled under
Clause 12.1, then without in any way limiting, reducing or otherwise
qualifying any of the obligations of the Borrower under Clauses 11
to 14:
15.1 promptly after an officer of that Bank with responsibility for its
participation in this facility becomes aware of the relevant
circumstances and their results, that Bank shall notify the Borrower
and
15.2 in consultation with the Borrower and the Agent, that Bank shall
take all such steps as it determines are reasonably open to it and
as are acceptable to the Borrower and the Agent to mitigate the
effect of those circumstances (such as changing its Facility Office,
restructuring its participation in the facility and/or novating or
assigning some or all of its rights or obligations under this
Agreement to another Person acceptable to the Borrower and willing
to take that novation or assignment).
However, no Bank shall be obliged to take any such steps which in
its opinion would or might reasonably be expected to have an adverse
effect on that Bank.
16 PAYMENTS
16.1 CURRENCY OF PAYMENTS: Each amount to be made available by a Bank in
respect of an Advance shall be made in the currency in which that
Advance is to be made or, as the case may be, denominated during the
relevant Interest Period.
Any payment by any Obligor in respect of principal shall be made in
the currency in which the relevant Advance was made. Any payment in
respect of interest shall be made in the currency in which the sum
on which that interest is payable was denominated during the
Interest Period in respect of which it is payable. The agency fee is
payable in Sterling.
16.2 PAYMENTS THROUGH AGENT: All payments by any Obligor or any Bank
shall be made through the Agent in the relevant currency:
16.2.1 if in U.S. Dollars, in New York same day funds on the due
date by crediting the Agent's account (number: 890-0047-003)
with Bank of New York, New York or such other account and/or
with such other bank in New York City as the Agent shall have
specified
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from time to time to the Person by whom the relevant payment
is to be made and
16.2.2 if in Sterling or an Optional Currency, in immediately
available cleared and freely transferable funds by such time
on the due date, and by crediting such account of the Agent
with such bank in the Place of Payment of the relevant
currency, as the Agent may from time to time designate.
16.3 DISTRIBUTION AND DISBURSEMENT:
16.3.1 DISTRIBUTION TO BANKS: The Agent shall make available to each
Bank before close of business in the Place of Payment on that
date its pro rata share (if any) of any sum so received by the
Agent from an Obligor in the same currency and funds as
received by the Agent to such account of that Bank with such
bank in the Place of Payment of the country of that currency
as it shall have designated to the Agent for that purpose. If
any sum is received by the Agent from an Obligor later than
required by Clause 16.2, the Agent shall make each Bank's
share (if any) available to it as soon as practicable
thereafter.
16.3.2 DISTRIBUTION TO BORROWER: The Agent shall make the amounts
received by it from the Banks available to the Borrower before
close of business in the Place of Payment on that date in the
same currency and funds as received by the Agent as follows:
(i) if Dollars - Misys plc - Account Number ββββββββ, Lloyds
Bank Plc, ββ βββ ββ, ββ βββββββ βββ, ββββββββββ βββ βββ
(ii) if Sterling - Misys plc, Treasury Account - Account
Number ββββββββ, Lloyds Bank Plc, βββ βββββββ βββ,
ββββββββββ, Sort Code 30-00-03
(iii) if an Optional Currency - an account notified to the
Agent in the Place of Payment of the relevant currency.
16.4 NETTING OF PAYMENTS: Notwithstanding Clauses 4.1.5 and 16.1 to 16.3
or any other provision of this Agreement, if on any date an amount
in a currency (the "FIRST AMOUNT") is to be advanced by a Bank under
this Agreement and an amount in the same currency (the "SECOND
AMOUNT") is due from an Obligor to that Bank under this Agreement,
that Bank shall apply the first amount in or towards payment of the
second amount. The relevant Bank shall remain obliged to advance any
excess (or, as the case may be, the Obligor shall remain obliged to
pay any shortfall) in accordance with this Clause 16. Nothing in
this Clause 16.4 shall be effective to create a charge.
16.5 ORDER OF DISTRIBUTION: If the amount received by the Agent from an
Obligor on any date is less than the total sum remaining and/or
becoming due under this Agreement on that date, the Agent shall
apply that amount in or towards payment of the following sums in the
following order:
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16.5.1 first, in or towards payment of any sums then due to the
Agent in its capacity as such
16.5.2 secondly, in or towards payment pro rata of any sums (other
than principal of or interest on the Advances) then due to the
Banks (or any of them)
16.5.3 thirdly, in or towards payment pro rata of any interest then
due on the Advances
16.5.4 fourthly, in or towards payment pro rata of any principal
then due.
Any such applications shall override any purported appropriation by
any Person.
16.6 REFUNDING OF PAYMENTS: The Agent shall not be obliged to (but may)
make available to any Person any sum which it is expecting to
receive for the account of that Person until it has been able to
establish that it has received that sum. However, it may do so if it
wishes. If and to the extent that it does so but it transpires that
it had not then received the sum which it paid out:
16.6.1 the Person to whom the Agent made that sum available shall on
demand refund it to the Agent and
16.6.2 that Person or (at the option of the Agent) the Person by
whom that sum should have been made available shall on demand
pay to the Agent the amount (as certified by the Agent) which
will indemnify the Agent against any funding or other cost,
loss, expense or liability sustained or incurred by it as a
result of paying out that sum before receiving it but without
prejudice to the rights of any party hereto against such
defaulting party.
16.7 NON-BUSINESS DAYS:
16.7.1 If any Interest Payment Date, any Reduction Date, the
Maturity Date or any Revolving Credit Facility Repayment Date
would otherwise fall on a non-Business Day, it shall instead
fall on the next Business Day in the same calendar month (if
there is one) or the preceding Business Day (if there is not).
16.7.2 Any payment to be made by the Borrower (otherwise than on an
Interest Payment Date or the Maturity Date) and which would
otherwise be due on a non-Business Day shall instead be due on
the next Business Day.
17 REPRESENTATIONS AND WARRANTIES
17.1 BY THE OBLIGORS: Each Obligor represents and warrants in
relation to itself, and the Borrower represents and
warrants in relation to each Obligor, to and for the
benefit of each other party to this Agreement as
follows:
17.1.1 STATUS:
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(i) The Borrower is a limited liability company duly
incorporated and validly existing under the
Companies Acts 1948 to 1976 and 1985 and has the
power and authority to own its Assets and to
conduct the business which it conducts.
(ii) Each of the Guarantors is a limited liability
company duly incorporated and validly existing
under the laws of its jurisdiction of
incorporation with the power and authority to own
its own Assets and to conduct the business which
it now conducts.
17.1.2 POWERS: It has the power to enter into and exercise its
rights and perform and comply with its obligations under
this Agreement and the Takeover Documents to which it is
a party.
17.1.3 AUTHORISATION AND CONSENTS: All actions, conditions and
things required to be taken, fulfilled and done
(including the obtaining of any necessary Consents, the
making of registrations and the like) at the time this
representation is made or deemed to be made in order:
(i) to enable it lawfully to enter into, exercise its
rights and perform and comply with its obligations
under this Agreement
(ii) to ensure that those obligations are valid,
legally binding and enforceable
(iii) to ensure that those obligations rank and will at
all times rank in accordance with Clause 19.1
(iv) to make this Agreement admissible in evidence in
the courts of England and
(v) to enable each of the Borrower and Decimal Music
Corporation lawfully to enter into, exercise its
rights and perform and comply with its obligations
under the Takeover Documents to which it is a
party, to ensure that those obligations are
legally binding
have been taken, fulfilled and done.
17.1.4 NON-VIOLATION ETC.:
(i) The entry into, exercise of its rights and/or
performance of or compliance with its obligations
under this Agreement by any Obligor do not and
will not violate, or exceed any borrowing or other
power or restriction granted or imposed by:
(a) any law to which any of them is subject
(b) its constitutional documents or
(c) (to an extent or in a manner which has or
might reasonably be expected
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to have a Material Adverse Effect on any
Obligor) any agreement to which any member
of the Group is a party or which is binding
on any member of the Group or its Assets,
or result in the existence of, or oblige any member of
the Group to create, any Security over its Assets.
(ii) The entry into, exercise of its rights and/or the
performance of or compliance with its obligations
under the Takeover Documents to which it is a
party does not and will not violate (a) any law to
which either the Borrower and Decimal Music
Corporation is subject, or (b) any of the
documents constituting either of them, or (c) any
agreement to which either of them is a party or
which is binding on either of them or their
respective Assets and does not and will not result
in the existence of, or oblige either of them to
create, any Security over those Assets.
17.1.5 OBLIGATIONS BINDING: The obligations of each Obligor
under this Agreement are valid, binding and enforceable.
The obligations of each of the Borrower and Decimal
Music Corporation under the Takeover Documents to which
it is a party are valid, binding and enforceable.
17.1.6 NO DEFAULT: No Event of Default or Potential Event of
Default has occurred, or will occur as a result of
making any Advance, other than any waived in accordance
with Clause 29.2. No member of the Group is in breach of
or default under any agreement relating to Borrowed
Money nor, to an extent or in a manner which has or
could have a Material Adverse Effect, any other
agreement.
17.1.7 EXISTING SECURITY: No Security exists on or over its
Assets or those of any other member of the Group except
as permitted by Clause 19.2.
17.1.8 RANKING OF OBLIGATIONS: The payment obligations of each
Obligor under this Agreement rank at least equally and
rateably in all respects with all its other unsecured
Indebtedness except for such unsecured Indebtedness as
would, by virtue only of the operation of law, be
preferred in the event of its Winding-up.
17.1.9 ACCOUNTS: The Borrower's audited accounts and
consolidated accounts as at 31 May 1997 and the related
directors' and auditors' reports):
(i) include such financial statements as are required
by the laws of England and accounting principles,
standards and practices generally accepted in
England and, save as stated in the notes thereto,
were prepared and audited in accordance with
accounting principles, standards and practices
generally accepted in the United Kingdom and
consistently applied and in accordance with the
Companies βββ ββββ
(ii) together with those notes, give a true and fair
view of its financial condition and
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operations (or, in the case of consolidated
accounts, the consolidated financial condition and
operations of the Group) as at that date and for
the financial year then ended.
17.1.10 NO MATERIAL ADVERSE CHANGE: To the best of its
knowledge and belief, after due enquiry, there has been
no material adverse change in its financial condition or
operations since 31 May 1997, nor in the consolidated
financial condition or operations of the Group since
that date.
17.1.11 LITIGATION: So far as it is aware and save as
disclosed in the Circular, no litigation, arbitration or
administrative proceeding is current, pending or
threatened:
(i) to restrain the entry into, exercise of any of its
rights under and/or performance or enforcement of
or compliance with any of its obligations under
this Agreement or
(ii) which is reasonably likely to be determined
adversely and if so determined would have a
Material Adverse Effect
(iii) against it, Decimal Music Corporation, Music
(Jersey) Limited, Kirsty Inc., the Banks, the
Arrangers or the Agents in connection with the
Acquisition or that might reasonably be expected
to affect the validity of the Takeover Documents.
17.1.12 WINDING-UP: No meeting has been convened for
Winding-up any Obligor, no such step is intended by it
and, so far as it is aware, no petition, application or
the like is outstanding for Winding-up any Obligor
17.1.13 INFORMATION: As at the date hereof and, except insofar
as expressly disclosed in writing by the Borrower to the
Agent prior thereto, immediately prior to the Effective
Time
(i) All statements of fact relating to any member of
the Group contained in the Information Package are
or will be true and accurate in all material
respects and not misleading in any material
respect (in each case as at the date they are or
will be made or expressed to be made) and all
expressions of opinion, intention and expectation
relating to any such member of the Group contained
in the Information Package are or will be fair and
honestly held and made after due and careful
enquiry and consideration (in each case as at the
date they are or will be held or made or expressed
to be held or made).
(ii) To the best of the knowledge, information and
belief of the directors of the Borrower (a) all
statements of fact relating to Decimal, its
directors and its Subsidiaries contained in the
Information Package, are or will be true and
accurate in all material respects and not
misleading in any material respect (in each case
as at the date they are or will be made or
expressed to be made) and (b) all
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expressions of opinion, intention and expectation
of the Borrower relating to Decimal, its directors
and its Subsidiaries and all assumptions relating
to any financial projections contained in the
Information Package, are or will be fair and
honestly held and made after due and careful
enquiry and consideration (in each case as at the
date they are or will be made or expressed to be
made) taking into account the due diligence
exercise undertaken by the Borrower in relation to
Decimal and its Subsidiaries.
(iii) The Borrower is not aware of any material facts or
circumstances relating to the Group or in relation
to Decimal and its Subsidiaries (by reason of its
due diligence exercise or otherwise) which have
not been disclosed in the Information Package and
which, if disclosed, could reasonably be expected
materially and adversely to affect the willingness
of a Person to lend money to the Group.
17.1.14 INTELLECTUAL PROPERTY: To the best of its knowledge
and belief all material intellectual property rights,
licences, consents, exemptions, clearances, filings,
registrations and authorisations which are necessary to
enable each Obligor to carry on its business are in full
force and effect.
17.1.15 COMPLIANCE WITH ENVIRONMENTAL LAWS: Each member of the
Group:
(i) conducts and maintains its business operations so
as to comply with all applicable Environmental Law
(ii) has not given, nor does it have any obligation to
give, nor has it received, any notice or claim or
communication regarding any past, present, planned
or threatened treatment, storage, disposal,
presence, release or spill of any contaminant at,
on, under or from any of its real properties,
including any notice pursuant to any Environmental
Law in each case to the extent that failure to
comply with sub-paragraph (i) above would, or with
sub-paragraph (ii) would not have a Material
Adverse Effect.
17.1.16 TAXES: Each of the Borrower and its Subsidiaries has
filed or caused to be filed all tax returns which, to
the knowledge of the Borrower, are required to be filed
and has paid all taxes shown to be due and payable on
said returns or on any assessments made against it or
any of its property by a government authority (other
than any amount the validity of which is currently being
contested in good faith by appropriate proceedings and
with respect to which reserves in conformity with
Applicable Accounting Principles have been provided in
the books of the Borrower or its Subsidiaries, as the
case may be) to the extent that failure to comply with
this Clause 17.1.16 would have a Material Adverse
Effect.
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17.1.17 PRINCIPAL SUBSIDIARIES: As at the date of this Agreement,
there are no Principal Subsidiaries of the Borrower other than
those set out in Schedule 5.
17.1.18 REPETITION: Each of the representations and warranties in
Clauses 17.1.1 to 17.1.14 (other than 17.1.6, to the extent it
refers to a Potential Event of Default, 17.1.7, 17.1.8,
17.1.9, 17.1.10, 17.1.11, 17.1.12 and 17.1.13) will be correct
and complied with on each date on which an Advance is
requested or made and on the first day of each Interest Period
as if repeated then by reference to the then existing
circumstances.
17.2 QUALIFICATIONS TO WARRANTIES: The representation and warranty in Clause
17.1.5 shall (where applicable) be subject, as to matters of law only,
to the qualifications in paragraphs 5 and 6 of the form of opinion of
Linklaters & Paines set out in Schedule 10 and, in respect of Obligors
incorporated outside of England and Wales, to the similar
qualifications in the legal opinion delivered in respect of such
Obligor under this Agreement.
17.3 UNITED STATES: The Borrower represents and warrants to and for the
benefit of each other party to this Agreement as follows:
17.3.1 COMPLIANCE WITH ERISA:
(i) It and each Subsidiary and ERISA Affiliate of it has
fulfilled all its material contribution obligations
under the minimum funding standards of the USA
Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), and the USA Internal Revenue Code
of 1986, as amended (the "CODE"), with respect to any
employee pension benefit plan covered by Title IV of
ERISA or subject to the minimum funding standards
under Section 412 of the Code maintained by it, that
Subsidiary or ERISA Affiliate or to which it, that
Subsidiary or ERISA Affiliate makes contributions,
has within the previous five years made contributions
or has an obligation to make contributions (a
"PLAN");.
(ii) Each Plan is in compliance in all material respects
with the presently applicable provisions of ERISA and
the Code, and neither it nor any Subsidiary or ERISA
Affiliate of it has incurred or expects to incur any
material liability to the Pension Benefit Guaranty
Corporation (or any entity succeeding to any or all
of its functions under ERISA) or a Plan under Title
IV of ERISA.
(iii) Neither it nor any of its Subsidiaries or ERISA
Affiliates has incurred any material liability to or
on account of a Plan pursuant to the penalty
provisions of Title I or Title IV of ERISA or expects
to incur any such material liability thereunder with
respect to any such Plan.
For the purposes of this Clause 17.3.1:
"ERISA AFFILIATE" means any person (as defined in Section 3(9)
of ERISA) which
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together with any other person, is treated as a "SINGLE
EMPLOYER" within the meaning of Section 414(b) or (c) of the
Code.
17.3.2 INVESTMENT COMPANY ACT: Neither it nor any of its
Subsidiaries is an "INVESTMENT COMPANY" or a "COMPANY
CONTROLLED BY AN INVESTMENT COMPANY" within the
meaning of the United States Investment Company Act
of 1940, as amended.
17.3.3 PUBLIC UTILITY HOLDING COMPANY ACT: Neither it nor
any of its Subsidiaries is a "HOLDING COMPANY" or an
"AFFILIATE" of a "HOLDING COMPANY" within the meaning
of the United States Public Utility Holding Company
Act of 1935, as amended.
17.3.4 USE OF PROCEEDS; MARGIN REGULATIONS: All proceeds of
any Advance shall be used by it for the purposes set
out in this Agreement, and no part of the proceeds of
any Advance will be used for any purpose which
violates, or which would be inconsistent with, the
provisions of the Margin Regulations, to purchase or
carry any Margin Stock or to extend credit to others
for the purpose of purchasing or carrying any Margin
Stock.
For the purposes of this Clause 17.3.4, "MARGIN
STOCK" shall have the meaning provided in Regulation
U of the Board of Governors of the United States
Federal Reserve System.
17.3.5 REPETITION: Each of the representations and
warranties in Clauses 17.3.1 to 17.3.4 will be
correct and complied with on each date on which an
Advance is requested or made and on the first day of
each Interest Period as if repeated then by reference
to the then existing circumstances.
18 INFORMATION
The Borrower undertakes that, so long as any sum remains to be lent or
remains payable under this Agreement:
18.1 PREPARATION OF ACCOUNTS: It will ensure that all accounts to be
delivered by it under this Agreement are prepared in such manner that
Clause 17.1.9 would be complied with if applied to those accounts by
Clause 17.1.18.
18.2 AUDITED ACCOUNTS: As soon as available and in any event within 120 days
after the end of each Financial Year (beginning with the current one),
it will deliver to the Agent enough copies for the Banks of each
Obligor's annual report and audited accounts (both consolidated and
unconsolidated) as at the end of and for that Financial Year, together
with copies of the related directors' and auditors' reports. If any
Obligor is resident in a country where it is not required to produce
audited accounts or where it is not customary for it to do so, that
Obligor may instead produce unaudited accounts and no directors' or
auditors' reports will be required in such circumstances.
18.3 SEMI-ANNUAL INFORMATION: As soon as available and in any event within
90 days after the end of
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the first six months of each of its Financial Years (beginning with the
current one), it will deliver to the Agent enough copies for the Banks
of each Obligor's unaudited interim consolidated accounts as at the end
of and for that six month period.
18.4 INFORMATION TO SHAREHOLDERS OR CREDITORS: As soon as practicable
following the time at which the same is sent to its shareholders (or
any class of its shareholders) or creditors, it will deliver to the
Agent enough copies for the Banks of any circular, document or other
written information sent to its shareholders (or any class of its
shareholders) or creditors as such.
18.5 LITIGATION: It will as soon as practicable deliver to the Agent for
distribution to the Banks details of any litigation, arbitration or
administrative proceeding which is to its knowledge current or pending:
18.5.1 to restrain the entry into, exercise of any of its rights
under and/or performance or enforcement of or compliance with
any of its obligations under this Agreement or
18.5.2 which is reasonably likely to be adversely determined and if
so determined would have a Material Adverse Effect on the
Borrower.
18.6 EVENTS OF DEFAULT: It will notify the Agent of the occurrence of any
Event of Default or Potential Event of Default (and of any action taken
or proposed to be taken to remedy it) promptly after becoming aware of
it. With each financial statement delivered by it under Clause 18.2 or
18.3 and as soon as practicable after any request made by the Agent
(acting reasonably) from time to time, it will deliver to the Agent a
certificate signed on its behalf by a Director confirming that, so far
as it is aware and (if applicable) except as previously notified to the
Agent or waived in accordance with Clause 29.2, no Event of Default or
Potential Event of Default has occurred or (as the case may be) setting
out details of any which has occurred and has not been so notified or
waived and of which it is aware and of any action taken or proposed to
be taken to remedy it.
18.7 COMPLIANCE WITH FINANCIAL RATIOS: With each set of accounts delivered
by it under Clause 18.2 and 18.3 it will deliver to the Agent a
certificate signed on its behalf by a Director substantially in the
form set out in Schedule 11 or in such other form as the Agent may
require.
18.8 PRINCIPAL SUBSIDIARIES: With each set of accounts delivered by it under
Clause 18.2 (and within 14 days after any request made by the Agent
(acting reasonably) from time to time), it will deliver to the Agent a
certificate signed on its behalf by a Director:
18.8.1 listing the Principal Subsidiaries as at the end of the
relevant financial year (or, as the case may be, as at the
date specified in the Agent's request, which date must be not
less than 15 nor more than 45 days before the date of the
request) and
18.8.2 setting out in reasonable detail and in a form satisfactory to
the Agent the computations necessary to justify the inclusions
in, and exclusions from, that list.
18.9 MERGER: It will provide to the Agent:
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18.9.1 details as to the progress of the Merger, and shall, at the
request of the Agent, provide the Agent with such information
in respect of the Merger that the Agent may reasonably request
18.9.2 as soon as practicable upon becoming aware of the same, any
information which is relevant to the Merger or which means
that it is reasonably likely that any condition to the Merger
will not be satisfied.
18.10 OTHER INFORMATION: It will promptly deliver to the Agent for
distribution to the Banks such other information relating to the
financial condition, business, financing or trading position of the
Group or any member of the Group as the Agent (or any Bank through the
Agent) may from time to time reasonably request.
18.11 DISPOSALS: It will notify the Agent promptly on becoming aware of any
Disposal that shall produce Disposal Proceeds in excess of
U.S.$15,000,000.
19 UNDERTAKINGS
The Borrower undertakes that, so long as any sum remains to be lent or
remains payable under this Agreement:
19.1 RANKING OF OBLIGATIONS: Each Obligor's payment obligations under this
Agreement rank and will at all times rank at least equally and rateably
in all respects with all its other unsecured Indebtedness except for
such unsecured Indebtedness as would, by virtue only of the operation
of law, be preferred in the event of its Winding-up.
19.2 NEGATIVE PLEDGE: It will not, and will ensure that no other member of
the Group will, create or have outstanding any Security on or over its
Assets, except for:
19.2.1 (a) an existing cash deposit of A$4.88m with Westpac Banking
Corporation deposited by CHA Computer Solutions Pty Limited
("CHA") as security for a performance bond issued in
connection with a contract between CHA and Unipower Limited
(for The Australian Universities Board) entered into in July
1993 and (b) an existing cash deposit of IRpound sterling1.9m
with Barclays Bank PLC, Dublin Branch as security for loan
notes issued by ACT Group plc on 1 December 1992 (but, in each
case, except with the prior consent of the Majority Banks, the
principal, capital or nominal amount secured by each such
deposit may not be increased beyond the amount secured by that
deposit at the date of this Agreement)
19.2.2 Security existing by virtue of (a) any omnibus guarantee and
set-off agreement entered into by any member of the Group with
Lloyds Bank plc or (b) any right over any account of any
member of the Group with any bank pursuant to which that bank
is entitled to set-
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off against balances standing to the credit of such account
debit balances on accounts of other members of the Group with
that bank, so long as interest charged by that bank in respect
of those debit balances is calculated net of any credit
balances on any account against which that bank has those
rights of set-off
19.2.3 liens arising solely by operation of law (or by an agreement
evidencing the same) in the ordinary course of its business in
respect of Indebtedness which either (a) has been due for less
than 30 days or (b) is being contested in good faith and by
appropriate means
19.2.4 pledges of goods, the related documents of title and/or other
related documents arising or created in the ordinary course of
its business as security only for Indebtedness to a bank or
financial institution directly relating to the goods or
documents on or over which that pledge exists
19.2.5 except where the supplier is another member of the Group,
Security arising out of title retention provisions in a
supplier's standard conditions of supply of goods acquired by
the relevant Person in the ordinary course of its business
19.2.6 any Security existing at the time of acquisition on or over
any Asset acquired by it (otherwise than from another member
of the Group) after the date of this Agreement and not created
in contemplation of or in connection with that acquisition
(but, except with the prior consent of the Majority Banks, the
principal, capital or nominal amount secured by any such
Security and outstanding at the time of acquisition may not be
increased) provided that (except with the prior consent of the
Majority Banks, such consent not to be unreasonably withheld)
any such Security is fully and finally discharged within 9
months after the time of that acquisition unless the Borrower
has demonstrated to the Agent that:
(i) such Subsidiary is not contractually entitled to
repay the Indebtedness secured by such Security and
(ii) it has used reasonable endeavours to procure the full
and final discharge of such Security
19.2.7 in the case of a Person which becomes a member of the Group
after the date of this Agreement, any Security existing on or
over its Assets when it becomes a member of the Group and not
created in contemplation of or in connection with it becoming
a member of the Group (but, except with the prior consent of
the Majority Banks, (a) the principal, capital or nominal
amount secured by any such Security and outstanding when the
relevant Person becomes a member of the Group may not be
increased except by reason of any fluctuation in the amount
outstanding under, and within the limits and in accordance
with the terms of, facilities which exist and are secured by
the relevant Security when it becomes a member of the Group
and (b) no Indebtedness may be secured by any such Security
which is not secured by the relevant Security when the
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relevant Person becomes a member of the Group) provided that
(except with the prior consent of the Majority Banks, such
consent not to be unreasonably withheld) any such Security is
fully and finally discharged within 9 months after the time at
which that Person became a member of the Group unless the
Borrower has demonstrated to the Agent that:
(i) such Subsidiary is not contractually entitled to
repay the Indebtedness secured by such Security and
(ii) it has used reasonable endeavours to procure the full
and final discharge of such Security
19.2.8 any Security created in connection with escrow arrangements
for source codes agreed with the Borrower's customers in the
ordinary course of business
19.2.9 any other Security created or outstanding with the prior
consent of the Majority Banks
19.2.10 any other Security created or outstanding on or over Assets of
any member of the Group provided that the aggregate
outstanding principal, capital or nominal amount secured by
all Security created or outstanding under this exception on or
over Assets of members of the Group must not at any time
exceed pound sterling1,000,000 or its equivalent (as
reasonably determined by the Agent)
19.2.11 Security existing by virtue of the Deposit Agreement
19.3 DISPOSALS:
19.3.1 It will not, and will ensure that no other member of the Group
will, (whether by a single transaction or a number of related
or unrelated transactions and whether at one time or over a
period of time) sell, transfer, lease out, lend or otherwise
dispose of (whether outright, by a sale-and-repurchase or
sale-and-leaseback arrangement, or otherwise and whether to
another member of the Group or any other Person) all or
substantially all of its Assets nor of any part of its Assets
the disposal of which (either alone or when aggregated with
all other disposals required to be taken into account under
this Clause 19.3.1) has or might reasonably be expected to
have a Material Adverse Effect on the Borrower.
19.3.2 The following disposals shall not be taken into account under
Clause 19.3.1:
(i) Disposals in the ordinary course of trading.
(ii) Disposals at arm's length and on normal commercial
terms
(iii) The payment of cash as consideration for the
acquisition of any Asset at arm's length and on
normal commercial terms.
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(iv) The disposal (for a consideration not exceeding a
normal commercial consideration) of Assets by any
member of the Group to the Borrower, or by one
wholly-owned Subsidiary to another, or (provided that
the interest of the Borrower in the transferee is no
less than its interest in the transferor) by any
other Subsidiary to another.
(v) The payment of cash dividends by the Borrower to its
ordinary shareholders from its distributable profits
and reserves in the usual and ordinary course of its
business.
(vi) Disposals of Assets having an aggregate market value
(as reasonably determined by the Agent) of pound
sterling1,000,000 (or its equivalent, as reasonably
determined by the Agent).
(vii) Any disposal which the Majority Banks shall have
agreed shall not be taken into account.
19.4 CHANGE OF BUSINESS: It will ensure that there is no material change in
the nature of its business, or the business of the Group (whether by a
single transaction or a number of related or unrelated transactions,
whether at one time or over a period of time and whether by disposal,
acquisition or otherwise).
19.5 GUARANTEES AND LOANS: It will not, and will ensure that no other member
of the Group will, give any Guarantee of any of the Indebtedness of any
Person (other than a member of the Group or to the extent comprised in
any arrangement referred to in Clause 19.2.2 (a) or (b)) for or in
respect of Borrowed Money or become a creditor in respect of any
Borrowings of any Person (other than a member of the Group or any
trustee of an employee share option scheme provided in the ordinary
course of business for the benefit of employees of any member of the
Group) except in the ordinary course of trading or where the aggregate
principal, nominal or capital amount of such Indebtedness and such
Borrowings does not exceed pound sterling250,000. It will ensure that
no Person gives any Guarantee of or Security for any of the Borrower's
Indebtedness for or in respect of Borrowed Money (other than to the
extent comprised in any arrangement referred to in Clause 19.2.2(a) or
(b)).
19.6 FINANCIAL RATIOS:
19.6.1 At the end of each, and of the first six months of each,
Financial Year of the Borrower the ratio of PBIT to Net
Interest Payable for the twelve month period then ending will
not be less than 4 to 1.
19.6.2 On the date (the "TEST DATE") at the end of each Financial
Year and each financial half-year of the Borrower commencing
with the current one the ratio of Net Borrowings on that date
to Adjusted EBITDA for the twelve month period then ending
will not exceed 3.5 to 1 for the period from first drawdown
until 30 November 1998 and 3 to 1 thereafter.
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19.6.3 If any financial statement delivered or to be delivered to the
Agent under Clause 18.2 or 18.3 is not to be or, as the case
may be, has not been prepared in accordance with the Companies
βββ ββββ (as in effect on the date of this Agreement) and
Applicable Accounting Principles:
(i) The Borrower and the Agent (on behalf of and after
consultation with all the Banks) shall, on the
request of the Agent, negotiate in good faith with a
view to agreeing such amendments to the above
financial ratios and/or the definitions of the terms
used in them as are necessary to give the Banks
comparable protection to that contemplated at the
date of this Agreement.
(ii) If amendments are agreed by the Borrower and the
Majority Banks within 25 days, those amendments shall
take effect in accordance with the terms of that
agreement.
(iii) If such amendments are not so agreed within 25 days,
the Borrower shall:
(a) within 30 days after the end of that 25 day
period and
(b) with all subsequent financial statements to
be delivered to the Agent under Clause 18.2
or 18.3
deliver to the Agent, in reasonable detail and in a
form satisfactory to the Agent, details of all such
adjustments as need be made to the relevant financial
statement to bring it into line with the Companies
βββ ββββ (as in effect on the date of this Agreement)
and Applicable Accounting Principles.
19.7 ACQUISITIONS:
19.7.1 It will not, and will ensure that no other member of the Group
will, during any Financial Year, (whether by a single
transaction or a number of related or unrelated transactions
and whether at one time or over a period of time) acquire
whether by subscription or otherwise any Assets of any Person
(including, without limitation, any business or interest in an
unincorporated firm, undertaking, joint venture, association
or partnership, or any shares or securities convertible into
shares (or any interest therein)) if consolidated Net External
Debt of the Group would increase by more than U.S.$400,000,000
(or its equivalent) at the time of the acquisition or in
aggregate when looking at all other such acquisitions in any
Financial Year of the Borrower without the prior written
consent of the Agent (given on behalf of and after
consultation with all the Banks).
19.7.2 At the time of any acquisition contemplated by this Clause
19.7, the Borrower shall deliver to the Agent a certificate
substantially in the form set out in Schedule 14, signed by a
director of the Borrower, stating that the requirements of
this Clause 19.7 will not
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be breached.
19.7.3 Nothing in this Clause 19.7 shall apply to the Acquisition or
to any transaction contemplated by Clause 19.3.2(iv).
19.8 HEDGING ARRANGEMENTS: It shall consult with the Arrangers regarding
hedging arrangements in respect of ongoing interest rate exposures.
19.9 OFFER PRICE: It shall not offer or pay more than the price per share
specified in a letter dated the date of this Agreement from the Banks
to the Borrower and accepted by the Borrower to any shareholder in
Decimal.
19.10 RIGHTS ISSUE UNDERWRITING AGREEMENT: Except with the prior consent of
the Majority Banks, there will be no amendment, supplement, consent,
agreement under, waiver or breach of any provision of, the Rights Issue
Underwriting Agreement that is material to the interests of the Banks.
It will perform and comply with its obligations under the Rights Issue
Underwriting Agreement.
19.11 COMPLETION OF MERGER: It shall use all reasonable endeavours to ensure
that the Merger is completed in accordance with the Merger Agreement on
or following the date of first drawdown.
19.12 PRIOR APPROVAL OF REFERENCES TO BANKS ETC.: It shall ensure that,
before the issue of any public document or the making of any public
announcement, any reference therein to the Revolving Credit Facility or
all or any of the Banks, the Arrangers or the Agent shall have been
approved by the Arrangers such approval not to be unreasonably
withheld.
19.13 INFORMATION MEMORANDUM AND SYNDICATION: It will cooperate with the
Arrangers or such of its offices/branches as it shall request in the
preparation of the Information Memorandum for the purposes of
syndicating the Facilities and will make available executive management
of the Group at the request of the Arrangers to meet with and make
presentations to prospective participants in the syndication and, once
the Information Memorandum is in final form, it shall be deemed to make
the same representation and warranty in respect of the Information
Memorandum as it has done in respect of the Information Package in
Clause 17.1.13 but where all references in that Clause to the
Information Package shall be read as references to the Information
Memorandum.
19.14 MERGER AGREEMENT: Neither it nor Decimal Music Corporation will grant
any waiver, make any amendment or exercise any other right (other than
termination) under the terms of the Merger Agreement which is material
to the interests of the Banks without the prior consent of the Majority
Banks (such consent not to be unreasonably withheld or delayed).
19.15 ADDITIONAL GUARANTORS: Unless the Borrower demonstrates to the
reasonable satisfaction of the Agent that it is unlawful for a company
to enter into a Guarantor Accession Deed, it will procure that (i) each
company which becomes a member of the Group after the Restatement Date
or (ii) each group of companies which become members of the Group after
the Restatement Date, in each case which results in an increase in
consolidated Net External Debt of the Group of U.S.$200,000,000 (or
equivalent) or more at the time it or they (as the case may be) become
members of the Group, promptly and in any event within 50 Business Days
of becoming a member or members (as the case may be) of the Group,
enters into a Guarantor Accession Deed.
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19.16 LIMIT OF DEBT: It will procure that the aggregate amount of
consolidated Net External Debt of members of the Group that are not
Guarantors does not exceed U.S.$50,000,000 (or equivalent) in aggregate
on the Test Dates. In the event that a Person becomes a member of the
Group by virtue of an acquisition, the Net External Debt of that Person
shall not be included in the aggregate total of Net External Debt of
all members of the Group that are not Guarantors for the purposes of
this Clause 19.16 for a period of 6 months from the date that Person is
acquired.
19.17 AUDITORS: It will ensure that the Group's auditors from time to time
are an internationally recognised firm of independent auditors.
19.18 COMPLIANCE WITH LAWS: It will ensure that each member of the Group will
at all times:
19.18.1 comply in all material respects with all laws and regulations
applicable to it (including Environmental Laws) and which are
necessary for the conduct of its business, trade and ordinary
activities generally
19.18.2 obtain, effect and maintain in full force and effect all
material governmental and regulatory consents, licences,
exemptions, clearances, filings, registrations and
authorisations necessary for the conduct of its business,
trade and ordinary activities generally.
19.19 ACCOUNTING REFERENCE DATE: It will not change its accounting reference
date without the consent of the Agent, such consent not to be
unreasonably withheld.
19.20 INSURANCE: It will maintain and ensure that each of its Subsidiaries
maintains insurances on and in relation to its business and Assets
against such risks and to such extent as it reasonably considers good
business practice for companies carrying on a business such as that
carried on by the relevant Person (including in particular product
liability insurance).
19.21 RIGHTS ISSUE: It will ensure that the proceeds of the Rights Issue net
of costs and expenses will be deposited with Lloyds Bank Plc and used
to settle the foreign exchange options and/or contracts referred in
Clause 11.1.3 of the Bridge Facility and to the extent that there is a
surplus, the balance will be used towards the payment of any costs and
expenses incurred in connection with the Acquisition and then towards
its general corporate purposes.
19.22 CONDITIONS SUBSEQUENT: It will ensure that it, and each Guarantor, has
complied with Clause 3.2 of the Amendment and Restatement Agreement.
20 DEFAULT
20.1 EVENTS OF DEFAULT: The following are Events of Default:
20.1.1 NON-PAYMENT: Any Obligor does not pay in the manner provided
in this Agreement (a) any principal payable under it when due,
unless that Obligor satisfies the Agent that non-payment is
due solely to administrative error (whether by that Obligor or
a bank
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involved in transferring funds to the Agent) and payment is
made within 2 Business Days after notice of that non-payment
has been given to it by the Agent or (b) any other sum payable
under it within 3 Business Days after notice of that
non-payment has been given to it by the Agent.
20.1.2 BREACH OF REPRESENTATION OR WARRANTY: Any representation,
warranty or statement by any Obligor in this Agreement or in
any document delivered under it is not complied with or is or
proves to have been incorrect in any material respect, when
made or deemed repeated.
20.1.3 BREACH OF UNDERTAKING: Clauses 2.3 or 19.2 to 19.7, 19.9,
19.10, 19.14, 19.15 and 19.16 are not complied with or any
condition attached to any waiver or consent given under this
Agreement is not fulfilled.
20.1.4 BREACH OF OTHER OBLIGATION: Any Obligor does not perform or
comply with any one or more of its other obligations under
this Agreement and, if that default is capable of remedy
within 30 days, it is not remedied within 30 days after notice
of that default has been given to it by the Agent.
20.1.5 CROSS DEFAULT: Any other Indebtedness of any Obligor or any
Principal Subsidiary for or in respect of Borrowed Money, or
any other Indebtedness of any of them to a bank or financial
institution, is or is declared to be or is capable of being
rendered due and payable before its normal maturity by reason
of any actual or potential default, event of default or the
like (however described) or is not paid when due nor within
any applicable grace period in any agreement relating to that
Indebtedness or, as a result of any actual or potential
default, event of default or the like (however described) any
facility relating to any such Indebtedness is or is declared
to be or is capable of being cancelled or terminated before
its normal expiry date or any Person otherwise entitled to use
any such facility is not so entitled. However, no Event of
Default will occur under this Clause 20.1.5 unless and until
the aggregate principal, nominal or capital amount of the
Indebtedness (whether of one or more Persons) in respect of
which one or more of the events mentioned above in this Clause
20.1.5 has/have occurred equals or exceeds pound
sterling1,000,000 or its equivalent (as reasonably determined
by the Agent).
20.1.6 INSOLVENCY: Any Obligor or any Principal Subsidiary is (or is,
or could be, deemed by law or a court to be) insolvent or
unable to pay its debts, stops, suspends or threatens to stop
or suspend payment of all or a material part of (or of a
particular type of) its Indebtedness, begins negotiations or
takes any other step with a view to the deferral, rescheduling
or other readjustment of all of (or all of a particular type
of) its Indebtedness (or of any part which it will or might
otherwise be unable to pay when due), proposes or makes a
general assignment or an arrangement or composition with or
for the benefit of the relevant creditors or a moratorium is
agreed or declared in respect of or affecting all or a
material part of (or of a particular type of) the Indebtedness
of that Obligor or any Principal Subsidiary.
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20.1.7 ENFORCEMENT PROCEEDINGS: A distress, attachment, execution or
other legal process is levied, enforced or sued out on or
against the Assets of any Obligor or any Principal Subsidiary
and is not discharged or stayed within 14 days.
20.1.8 SECURITY ENFORCEABLE: Any Security on or over the Assets of
any Obligor or any Principal Subsidiary becomes enforceable.
However, the exercise of a lien arising solely by operation of
law (or by an agreement evidencing the same) in the ordinary
course of business shall not constitute an Event of Default if
the indebtedness in respect of which that lien is being
exercised either (a) has been due for less than 30 days or (b)
is being contested in good faith by appropriate means.
20.1.9 WINDING-UP: Any step (not being merely vexatious or frivolous
and not discharged or stayed within 7 days of first being
taken) is taken by any Person with a view to, or any order is
made or resolution passed for, the Winding-up of any Obligor
or any Principal Subsidiary, or any of them ceases or
threatens to cease to carry on all or a material part of its
business, except for the purpose of and followed by a
reconstruction, amalgamation, reorganisation, merger or
consolidation on terms approved by the Majority Banks before
that step is taken.
20.1.10 CHANGE OF CONTROL: Control (as defined in Section 416(2) of
the Income and Corporation Taxes Act 1988) of the Borrower is
acquired (or is deemed by Section 416(2) to be held) by any
Person, or any group of connected persons (within the meaning
of Section 839 of that Act), or any Persons acting in concert,
which at the date of this Agreement do(es) not have (and would
not be so deemed to have) such control.
20.1.11 CONSENTS: Any action, condition or thing (including the
obtaining of any necessary Consent) at any time required to be
taken, fulfilled or done for any of the purposes stated in
Clause 17.1.3 is not taken, fulfilled or done, or any such
Consent ceases to be in full force and effect without
modification or any condition in or relating to any such
Consent is not complied with (unless that Consent or condition
is no longer required or applicable).
20.1.12 ILLEGALITY: It is or will become unlawful for the Obligors to
perform or comply with any one or more of its obligations
under this Agreement (unless the Majority Banks determine that
the UNLAWFULNESS OF THE RELEVANT OBLIGATION(S) IS IMMATERIAL).
20.1.13 GUARANTEE: ANY GUARANTEE OF A GUARANTOR IS NOT (OR IS CLAIMED
BY ANY OBLIGOR NOT TO BE) IN FULL FORCE AND EFFECT.
20.1.14 LITIGATION: Any litigation, arbitration or administrative
proceeding has commenced which is reasonably likely to be
determined adversely and if so determined would have a
Material Adverse Effect on the Borrower.
20.1.15 ANALOGOUS EVENTS: Any event occurs which, under the law of any
relevant jurisdiction, has an analogous or equivalent effect
to any event mentioned in Clause 20.1.6, 20.1.7 or 20.1.9.
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20.1.16 ERISA: (i) Any Plan which is covered by Title IV of ERISA but
which is not a multiemployer plan (as that term is defined in
Section 4001(a)(3) of ERISA) shall terminate under s.4001(c)
or s.4002 of ERISA, (ii) any Obligor or any entity, whether or
not incorporated, which is under common control with any other
Obligor within the meaning of Section 4001 (a)(14) of ERISA)
shall, or is, in the reasonable opinion of the Majority Banks,
likely to, incur any liability in connection with a withdrawal
from, or the insolvency or reorganisation (as those terms are
defined in Section 4245 and Section 4241 respectively of
ERISA) of, a multiemployer plan or (iii) any other event or
condition shall occur or exist with respect to a Plan; and in
each case in clauses (i), (ii) and (iii) above, such event or
condition, together with all other such events or conditions,
if any, would have a Material Adverse Effect.
20.1.17 BREACH OF TAKEOVER DOCUMENTS: The Borrower does not perform or
comply with any one or more of its obligations under the
Takeover Documents.
20.1.18 MATERIAL ADVERSE CHANGE: Any event(s) occur(s) or
circumstances arise as a consequence of which the Obligors
taken together will or might reasonably be expected to not (or
will or might reasonably be expected to be unable to) perform
or comply with any one or more of its obligations under this
Agreement.
20.2 CANCELLATION/ACCELERATION: If at any time and for any reason (and
whether within or beyond the control of any party to this Agreement)
any Event of Default has occurred (other than any Event of Default
which the Borrower has demonstrated to the Majority Banks has been
remedied) then at any time thereafter, whether or not any Event of
Default is continuing, the Agent, if so instructed by the Majority
Banks, shall by notice to the Borrower declare:
20.2.1 the Revolving Credit Facility Commitments to be cancelled,
whereupon they shall be cancelled; and/or
20.2.2 all Advances, all unpaid accrued interest and fees and any
other sum then payable under this Agreement to be immediately
due and payable, whereupon they shall become so due and
payable; and/or
20.2.3 demand that all or part of the Advances be payable on demand,
whereupon they shall immediately become payable on demand.
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21 DEFAULT INTEREST
21.1 INTEREST ON OVERDUE SUMS: If the Borrower does not pay any sum payable
under this Agreement when due, it shall pay interest on the amount from
time to time outstanding in respect of that overdue sum for the period
beginning on its due date and ending on the date of its receipt by the
Agent (both before and after judgment) in accordance with this Clause
21. For the purpose of this Clause 21, if any payment is received by
the Agent on the due date, but too late to be made available by the
Agent on that due date to the Person(s) entitled to it under Clause
16.3, that payment shall be deemed to be received on the next Business
Day (but the Agent will give credit to the Borrower for any interest
earned by the Agent on the relevant sum pending distribution to such
Person(s)).
21.2 DEFAULT INTEREST PERIODS AND RATES: Interest under this Clause 21 shall
be calculated by reference to successive Interest Periods, each of
which (other than the first, which shall begin on the due date) shall
begin on the last day of the previous one. Each such Interest Period
shall be of 3 months or such shorter period as the Agent may from time
to time select and the rate of interest applicable for all or any part
of a particular Interest Period shall be the rate per annum equal to
the sum of 1% and the rate which would be applicable to that overdue
sum for (or, as the case may be, for that part of) that Interest Period
under Clause 8.4 if that overdue sum were a non-overdue Advance, except
as follows:
21.2.1 Subject to Clauses 21.2.2 and 21.2.3, until the third Business
Day after the Agent first becomes aware of the relevant
default, the Agent may require that each Interest Period
relating to the relevant overdue sum shall be an "OVERNIGHT"
period beginning on one Business Day and ending on the next.
The rate of interest for a particular "OVERNIGHT" period shall
be the rate per annum equal to the sum of 1%, the Applicable
Margin, the Mandatory Costs and LIBOR for that Interest
Period.
21.2.2 If the overdue sum is of principal of an Advance and becomes
due before the Revolving Credit Facility Repayment Date (as
appropriate) of that Advance, the first Interest Period
applicable to that overdue sum shall end on that Repayment
Date and the rate of interest applicable to that sum for that
Interest Period shall be the rate per annum equal to the sum
of 1% and the rate applicable to it immediately before it
became due.
21.2.3 If any event mentioned in Clause 14.1 occurs in relation to
any Interest Period applicable to an overdue sum, the rate of
interest payable on each Person's share of that sum for all or
any part of that Interest Period shall be the sum of 1%, the
Applicable Margin, the Mandatory Costs and the cost to that
Person (as certified by it and expressed as a rate per annum)
of funding its share during that Interest Period by whatever
means it determines to be appropriate.
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21.2.4 Any Interest Period which would otherwise end on a
non-Business Day shall instead end on the next Business Day in
the same calendar month (if there is one) or the preceding
Business Day (if there is not).
21.3 PAYMENT AND COMPOUNDING OF DEFAULT INTEREST: Interest accrued under
this Clause 21 shall be due
on demand by the Agent but, if not previously demanded, shall be paid
when due in accordance with Clause 8.4 If not paid when due, the
interest shall be added to the overdue sum and itself bear interest
accordingly.
22 INDEMNITIES
22.1 MISCELLANEOUS INDEMNITIES: The Borrower shall on demand indemnify the
Agent and each Bank against any funding or other cost, loss, expense or
liability sustained or incurred by it as a result of:
22.1.1 an Advance not being made or the Overdraft Facility not being
made available by reason of non-fulfilment of any of the
conditions in Clause 3 and 4, as the case may be, or the
Borrower purporting to revoke a notice requesting an Advance
22.1.2 the occurrence or continuance of any Event of Default or
Potential Event of Default
22.1.3 the receipt or recovery by any party (or the Agent on its
behalf) of all or any part of an Advance or overdue sum
otherwise than on the Revolving Credit Facility Repayment
Date, as the case may be, Repayment Date of that Advance or
the last day of an Interest Period relating to that overdue
sum or
22.1.4 any Bank's Revolving Credit Facility Commitment being
cancelled as provided in the first sentence of Clause 7.2.
22.2 BROKEN FUNDING COSTS: In the case of Clauses 22.1.1 and 22.1.3 above,
the amount payable shall in any event include the amount (if any) by
which:
22.2.1 the amount of interest which the relevant Person is able to
obtain by placing an amount equal to its share of the relevant
Advance or overdue sum on deposit in the Inter-bank Market,
for the remainder of the relevant Interest Period, as soon as
reasonably practicable after it becomes aware that the
relevant Advance is not being made or (as the case may be) of
the relevant event referred to in Clause 22.1.1 or 22.1.3
is less than:
22.2.2 the amount of interest which, in accordance with the expressed
terms of this Agreement, would otherwise be payable to that
Person on its share of that Advance for its Interest Period
(as the case may be) on the relevant amount for the remainder
of the relevant
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Interest Period.
22.3 CURRENCY INDEMNITY:
22.3.1 In respect of any sum payable by the Borrower under or in
connection with this Agreement including damages, the currency
specified in Clause 16.1 in respect of that sum (the "CURRENCY
OF ACCOUNT") shall be the sole currency of account and
payment.
22.3.2 Any amount received or recovered in a currency other than the
relevant Currency of Account (whether as a result of, or of
the enforcement of, a judgment or order of a court of any
jurisdiction, in the Winding-up of the Borrower or otherwise)
by the Agent or any Bank in respect of any sum expressed to be
due to it from the Borrower under this Agreement shall only
discharge the Borrower to the extent of the amount in that
Currency of Account which the recipient is able, in accordance
with its usual practice, to purchase with the amount so
received or recovered in that other currency on the date of
that receipt or recovery (or, if it is not practicable to make
that purchase on that date, on the first date on which it is
practicable to do so).
22.3.3 If that amount in that Currency of Account is less than the
amount expressed to be due to the recipient under this
Agreement, the Borrower shall indemnify it against any loss
sustained by it as a result. In any event, the Borrower shall
indemnify the recipient against the cost of making any such
purchase. For the purpose of this Clause 22.3, it will be
sufficient for the Agent or Bank, as the case may be, to
demonstrate that it would have suffered a loss had an actual
exchange or purchase been made.
22.4 TRANSACTION INDEMNITY:
22.4.1 The Borrower agrees to indemnify and hold the Arrangers, the
Banks and the Agent and their respective directors, officers
and agents (the "INDEMNIFIED PARTIES") harmless from and
against any and all claims, damages, liabilities, taxes, costs
and expenses (including reasonable and proper legal fees,
travel and other expenses and disbursements) which may be
incurred by or asserted against the Indemnified Parties in
connection with or arising out of any investigation,
litigation or proceeding relating to this Agreement or the
financing of the Merger (except for any arising out of such
Indemnified Party's gross negligence or wilful default)
whether or not the Indemnified Parties are parties thereto,
and will pay all costs and expenses of the Indemnified Parties
(including all reasonable legal and proper fees, expenses and
disbursements) incurred or sustained by the Indemnified
Parties in connection with the same whether or not the
Facilities are utilised or the Merger is completed.
22.4.2 Any party that proposes to assert the right to be indemnified
under this Clause 22.4 will, promptly after receipt of notice
of commencement of any action, suit or proceeding
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against such party in respect of which a claim is to be made
against the Borrower under this Clause 22.4 notify the
Borrower of the commencement of such action, suit or
proceeding, enclosing a copy of all papers served, but the
omission so to notify the Borrower of any such action, suit or
proceeding shall not relieve the Borrower from any liability
that it may have to any Indemnified Party unless the Borrower
is effectively precluded from exercising any of its material
rights to contest such claim as a result of such omission to
notify.
22.4.3 In case any such action, suit or proceeding shall be brought
against any Indemnified Party and notification has been made
to the Borrower of the commencement thereof, the Borrower
shall be entitled to participate in such action, suit or
proceeding.
22.5 INDEMNITIES SEPARATE: Each of the indemnities in this Agreement
constitutes a separate and independent obligation from the other
obligations in this Agreement, shall give rise to a separate and
independent cause of action, shall apply irrespective of any indulgence
granted by the Agent and/or any Bank and shall continue in full force
and effect despite any judgment, order, claim or proof for a liquidated
amount in respect of any sum due under this Agreement or any other
judgment or order.
23 GUARANTEE
23.1 GUARANTEE: Each Guarantor unconditionally and irrevocably guarantees
that, if for any reason the Borrower does not pay any sum payable by it
under this Agreement by the time, on the date and otherwise in the
manner specified in this Agreement (whether on the normal due date, on
acceleration or otherwise), that Guarantor will pay that sum before
close of business in the Place of Payment for the relevant currency on
that date.
23.2 GUARANTOR AS PRINCIPAL DEBTOR: As between each Guarantor and (apart
from the Borrower) the other parties to this Agreement but without
affecting the Borrower's obligations, each Guarantor shall be liable
under this Clause 23 as if it were the sole principal debtor and not
merely a surety. Accordingly, each Guarantor shall not be discharged,
nor shall its liability be affected, by anything which would not
discharge it or affect its liability if it were the sole principal
debtor including:
23.2.1 any time, indulgence, concession, waiver or consent at any
time given to the Borrower or any other Person
23.2.2 any amendment or supplement to any other Clause of this
Agreement or to any Security or other Guarantee
23.2.3 the making or absence of any demand on the Borrower or any
other Person for payment
23.2.4 the enforcement or absence of enforcement of this Agreement or
of any Security or other
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Guarantee
23.2.5 the taking, existence or release of any Security or other
Guarantee
23.2.6 the Winding-up of the Borrower or any other Person, or any
step being taken for any such Winding-up or
23.2.7 the illegality, invalidity or unenforceability of, or any
defect in, any provision of this Agreement or any Security or
other Guarantee or any of the obligations of any of the
parties under or in connection with this Agreement or any
Security or other Guarantee.
23.3 GUARANTOR'S OBLIGATIONS CONTINUING: Each Guarantor's obligations under
this Agreement are and will remain in full force and effect by way of
continuing security until no sum remains to be lent under this
Agreement and the Agent and Banks have irrevocably received or
recovered all sums payable under this Agreement. Furthermore, those
obligations of the Guarantors are additional to, and not instead of,
any Security or other Guarantee at any time existing in favour of any
Person, whether from the Guarantors or otherwise, and may be enforced
without first having recourse to the Borrower, any other Person, any
Security or any other Guarantee. Each Guarantor irrevocably waives all
notices and demands of any kind.
23.4 EXERCISE OF GUARANTOR'S RIGHTS: So long as any sum remains to be lent
or remains payable under this Agreement:
23.4.1 any right of each Guarantor, by reason of the performance of
any of its obligations under this Clause 23, to be indemnified
by the Borrower, to prove in respect of any liability in the
Winding-up of the Borrower or to take the benefit of or
enforce any Security or other Guarantee shall (and shall only)
be exercised and enforced in such manner and on such terms as
the Agent (acting on instructions from the Majority Banks) may
require and
23.4.2 any amount received or recovered by a Guarantor (a) as a
result of any exercise of any such right or (b) in the
Winding-up of the Borrower shall be held in trust for the
Agent, and the Banks and immediately paid to the Agent
provided that nothing in this Clause 23.4.2 shall be effective
to create a charge.
23.5 AVOIDANCE OF PAYMENTS: Each Guarantor shall on demand indemnify the
Agent, and each Bank against any funding or other cost, loss, expense
or liability (including loss of Applicable Margin) sustained or
incurred by the Agent or, as the case may be, that Bank as a result of
it being required for any reason (including any bankruptcy, insolvency,
Winding-up or similar law of any jurisdiction) to refund all or part of
any amount received or recovered by it in respect of any sum payable by
the Borrower under this Agreement and shall in any event pay to the
Agent or, as the case may be, the relevant Bank on demand the amount so
refunded by it.
23.6 SUSPENSE ACCOUNTS: For the purpose of enabling the Agent or any Bank to
maximise its recoveries
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in any actual or potential Winding-up, any amount received or recovered
by the Agent or any Bank (otherwise than as a result of a payment by
the Borrower to the Agent) in respect of any sum payable by the
Borrower under this Agreement may be placed by the recipient in an
interest bearing suspense account. That amount may be kept there (with
any interest earned being credited to that account) unless and until
the recipient is satisfied that it is not obliged to pay any further
sum under this Agreement and that it has irrevocably received or
recovered its share of the Advances, all interest accrued thereon and
any other sums payable to it under this Agreement.
23.7 INDEMNITY: As separate, independent and alternative stipulations, each
Guarantor unconditionally and irrevocably agrees:
23.7.1 that any sum which, although expressed to be payable by the
Borrower under this Agreement, is for any reason (whether or
not now existing and whether or not now known or becoming
known to any party to this Agreement) not recoverable from
that Guarantor on the basis of a guarantee shall nevertheless
be recoverable from it as if it were the sole principal debtor
and shall be paid by it to the Agent on demand and
23.7.2 as a primary obligation to indemnify the Agent and each Bank
against any loss suffered by it as a result of any sum
expressed to be payable by the Borrower under this Agreement
not being paid by the time, on the date and otherwise in the
manner specified in this Agreement or any payment obligation
of the Borrower under this Agreement being or becoming void,
voidable or unenforceable for any reason (whether or not now
existing and whether or not now known or becoming known to any
party to this Agreement), the amount of that loss being the
amount expressed to be payable by the Borrower in respect of
the relevant sum.
23.8 ADDITIONAL GUARANTORS: The Borrower may nominate any of its
Subsidiaries incorporated in an OECD country as a Guarantor for the
purposes of this Agreement by so notifying the Agent in writing. Upon
receipt by the Agent of a Guarantor Accession Deed duly executed by a
Guarantor and upon the Agent notifying the Borrower in writing that it
has received documentation complying with Schedule 8 in respect of a
Guarantor, such Guarantor shall acquire all the rights and assume all
the obligations of a Guarantor hereunder and thereafter shall be
treated as a Guarantor for all purposes under this Agreement.
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24 THE AGENT
24.1 Appointment of Agent: Each Bank irrevocably appoints the Agent to act
as its agent for the purpose of this Agreement and authorises it to
perform the functions specifically delegated to it by this Agreement
and such other functions as are reasonably incidental. However, the
Agent may not begin any legal action or proceeding in the name of a
Bank without its consent. The relationship between the Agent and the
Banks is of agent and principal only. The Agent shall not be a trustee
or fiduciary for any Bank, nor an agent, trustee or fiduciary for the
Borrower under or in relation to this Agreement.
24.2 AGENT'S DUTIES: The Agent shall:
24.2.1 promptly send to each Bank details of each communication
received by it from the Borrower under this Agreement, except
that details of any communication relating to a particular
Bank shall be sent to that Bank only
24.2.2 promptly send to each Bank a copy of any legal opinion
delivered under this Agreement and of any document or
information received by it under Clause 18
24.2.3 subject to the other provisions of this Clause 24, act in
accordance with any instructions from the Majority Banks and
24.2.4 have only those obligations and responsibilities, of a solely
mechanical and administrative nature, expressly specified in
this Agreement.
24.3 AGENT'S RIGHTS: The Agent may:
24.3.1 perform any of its functions under this Agreement by or
through its personnel or agents
24.3.2 refrain from exercising any right, power or discretion under
this Agreement until it has received instructions from the
Majority Banks as to whether (and, if so, how) it is to be
exercised and shall in all cases be fully protected when
acting, or (if so instructed) refraining from acting, in
accordance with instructions from the Majority Banks
24.3.3 treat (a) the Bank which makes available any share of an
Advance as the Person entitled to repayment of that share
unless all or part of it has been novated (or the Agent has
received notice of assignment of all or part of it) in
accordance with Clause 28.3 and (b) the office notified by a
Bank to the Agent for this purpose before the signing of this
Agreement (or, as the case may be, set out in the relevant
Novation Notice or notice of assignment) as its Facility
Office unless the Agent has received from that Bank a notice
of change of Facility Office in accordance with Clause 28.4.
The Agent may act on any such notice until it is superseded by
a further notice
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24.3.4 refrain from disclosing any document or information if such
disclosure (and may refrain from doing anything else which)
would or might in its opinion be contrary to any law or
Directive, be a breach of any duty of secrecy or
confidentiality or otherwise render it liable to any Person
and may do anything which is in its opinion necessary to
comply with any law or Directive
24.3.5 assume that no Event of Default or Potential Event of Default
has occurred unless an officer of the Agent, in performing the
Agent's functions under this Agreement, acquires actual
knowledge to the contrary and
24.3.6 refrain from taking any step (or further step) to protect or
enforce the rights of any Person under this Agreement until it
has been indemnified (or received confirmation that it will be
so indemnified) and/or secured to its satisfaction against any
and all costs, losses, expenses or liabilities (including
legal fees) which it would or might sustain or incur as a
result.
24.4 RIGHTS OF AGENT AND ARRANGERS: The Agent and each Arranger (and, in the
case of Clauses 24.4.4 and 24.4.5, each of its Affiliates) may:
24.4.1 rely on any communication or document believed by it to be
genuine
24.4.2 rely as to any matter of fact which might reasonably be
expected to be within the knowledge of the Borrower on a
statement by or on behalf of the Borrower
24.4.3 obtain and pay for such legal or other expert advice or
services as may to it seem necessary or desirable and rely on
any such advice
24.4.4 retain for its own benefit and without liability to account
any fee or other sum receivable by it for its own account and
24.4.5 accept deposits from, lend money to, provide any advisory or
other services to or engage in any kind of banking or other
business with any party to this Agreement or any Affiliate of
any party (and, in each case, may do so without liability to
account). Without prejudice to the generality of this Clause
24.4.5, neither the Agent nor any of its Affiliates shall have
any duty to disclose or act on or take into account any
document or information of which any of them has knowledge or
notice or otherwise becomes aware in the course of doing
anything permitted by this Clause 24.4.5 and, in performing
its duties, obligations and responsibilities as Agent, the
Agent shall be entitled to ignore any such document or
information which is not publicly available.
24.4.6 act as agent or trustee or in a fiduciary or other capacity on
behalf of any other group of banks or financial institutions
providing facilities to any member or members of the Group or
any associated company of any such member without regard to
the effect of exercising or omitting to exercise its rights
discretions powers and duties in such capacity in the
interests of the Banks and to act or omit to act in such
capacity as freely in all respects as if the Agent had not
been appointed to act as agent for the Banks and
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24.4.7 subscribe for, hold or be or become beneficially entitled to,
or dispose of, shares or securities, or options or other
rights to and interests in shares or securities in any member
or members of the Group or any associated company of any such
member (and, in each case, may do so without liability to
account).
24.5 EXONERATION OF AGENT AND ARRANGERS: Neither the Agent nor the Arrangers
nor any of their personnel or agents shall be:
24.5.1 responsible for the adequacy, accuracy, completeness or
reasonableness of any representation, warranty, statement,
projection, assumption or information in any Information
Memorandum, this Agreement or any notice or other document
delivered under or in connection with this Agreement whether
given orally or in writing
24.5.2 responsible for the execution, delivery, validity, legality,
adequacy, enforceability or admissibility in evidence of this
Agreement or any such notice or other document
24.5.3 obliged to enquire as to the occurrence or continuation of an
Event of Default or Potential Event of Default or
24.5.4 liable for anything done or not done by it or any of them
under or in connection with this Agreement save in the case of
its or their own gross negligence or wilful misconduct.
24.6 AGENT/ARRANGERS AS BANK: The Agent and each Arranger shall have the
same rights and powers with respect to its Revolving Credit Facility
Commitment and share of the Advances (if any) as any other Bank and may
exercise those rights and powers as if it were not also acting as Agent
and/or Arranger.
24.7 NON-RELIANCE ON AGENT/ARRANGERS: Each Bank confirms that it has itself
been, and will at all times continue to be, solely responsible for
making its own independent investigation and appraisal of the business,
financial condition, prospects, creditworthiness, status and affairs of
the Borrower, the Group or any member of the Group and has not relied,
and will not at any time rely, on the Agent and/or the Arrangers and/or
any other Bank:
24.7.1 to provide it with any information relating to the business,
financial condition, prospects, creditworthiness, status or
affairs of the Borrower, the Group, any member of the Group or
any other Person, whether coming into its possession before or
after the making of any Advance (except, in the case of the
Agent, as stated in Clause 24.2) or
24.7.2 to check or enquire into the adequacy, accuracy, completeness
or reasonableness of any representation, warranty, statement,
projection, assumption or information at any time provided by
or on behalf of the Borrower, the Group, any member of the
Group or any other Person under or in connection with this
Agreement (whether or not that information has been or is at
any time circulated to it by the Agent), including any
contained in any Information Memorandum or
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24.7.3 to assess or keep under review the business, financial
condition, prospects, creditworthiness, status or affairs of
the Borrower, the Group, any member of the Group or any other
Person.
24.8 INDEMNITY TO ARRANGERS AND AGENT: To the extent that the Borrower does
not do so on demand or is not obliged to do so, each Bank shall on
demand indemnify the Arrangers and the Agent in the proportion borne by
its Advances to all the Advances at the relevant time (or, if there are
then no Advances, in the proportion borne by its Revolving Credit
Facility Commitment to the total Revolving Credit Facility Commitments
or, if its Revolving Credit Facility Commitment has been cancelled, in
the proportion borne by its Revolving Credit Facility Commitment to the
total Revolving Credit Facility Commitments immediately before being
cancelled) against any cost, expense or liability mentioned in Clause
27 or sustained or incurred by the Agent in complying with any
instructions from the Majority Banks or otherwise sustained or incurred
by the Arrangers and the Agent in connection with this Agreement or its
duties, obligations and responsibilities under this Agreement
(including any costs and expenses incurred by the Arrangers and the
Agent in connection with the preparation, printing, negotiation, entry
into or advertising of any Information Memorandum and this Agreement).
24.9 RESIGNATION OF AGENT: Notwithstanding the irrevocable appointments in
Clauses 24.1 and 24.10, the Agent may resign at any time (after
consultation with the Borrower) if it gives at least 7 days' notice to
the Borrower and the Banks. However, no resignation shall be effective
until the successor has been appointed and accepted its appointment in
accordance with this Clause 24.9. The Agent may in its notice of
resignation appoint any of its Affiliates with an office in London as
its successor. If it does not do so, the Majority Banks may appoint a
successor. If the relevant successor has not been so appointed and
accepted its appointment within 15 days after the date of the notice of
resignation, the resigning Agent may appoint any reputable bank or
financial institution with an office in London (whether or not an
Affiliate of the Agent) to be its successor. Any appointment of a
successor must be in writing, signed by the Person(s) appointing that
successor and delivered to that successor. Any acceptance of such
appointment must be in writing, signed by the Person appointed and
delivered to the Person(s) appointing that successor. The other parties
to this Agreement shall be promptly informed of the acceptance by a
successor Agent. Upon the successor accepting its appointment, the
resigning Agent shall be automatically discharged from any further
obligation under this Agreement and its successor and each of the other
parties to this Agreement shall have the same rights and obligations
among themselves as they would have had if the successor had been the
original Agent party to this Agreement. The resigning Agent shall
provide its successor with (or with copies of) such of its records as
its successor requires to carry out its functions under this Agreement.
24.10 NOVATION NOTICE: The Borrower, each Obligor and each Arranger and Bank
(except for a Bank voluntarily seeking the relevant novation in
accordance with Clause 28.3) irrevocably authorise the Agent to sign
each Novation Notice on their behalf.
24.11 CONFIDENTIAL INFORMATION:
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24.11.1 In acting as Agent for the Banks, the Capital Markets unit of
Lloyds Bank Plc shall be treated as a separate entity from any
other of the divisions of the Agent or its subsidiaries and,
without detracting from the generality of the foregoing, in
the event that any of the
Agent's divisions (including its Capital Markets unit) or
similar units or subsidiaries should act for the Borrower or
any member of the Group in any capacity whether as bankers or
otherwise in relation to any other matter, any information
given by the Borrower or member of the Group to such
divisions, similar units or subsidiaries shall be treated as
confidential and the Agent shall as between itself and the
Banks not be obliged to disclose the same to any Bank or any
other person.
24.11.2 Notwithstanding anything to the contrary expressed or implied
herein and without prejudice to the generality of Clause
24.11.1 the Agent shall as between itself and the Banks not be
obliged to disclose to any Bank or other person any
information supplied by the Borrower or member of the Group to
it in its capacity as Agent for the Banks which is identified
by the Borrower or that member of the Group at the time of
supply as being confidential and supplied solely for the
purpose of evaluating in consultation with the Agent whether
any waiver or amendment might be required to any of the
provisions contained herein provided that nothing in this
Clause 24.11.2 shall apply to any information supplied by the
Borrower pursuant to Clause 18.
24.11.3 For the purposes of this Agreement the Agent shall be deemed
not to have any actual knowledge or actual notice of the
contents of any information obtained by it or supplied to it
by or on behalf of the Borrower or any member of the Group
other than the contents of information obtained or supplied to
it as Agent for the Banks under this Agreement and which
information the Agent is not obliged to keep confidential
pursuant to Clause 24.11.1.
25 SET-OFF/PRO RATA SHARING
25.1 SET-OFF: Each of the Obligors authorises any other party to this
Agreement to apply (without prior notice) any credit balance (whether
or not then due) to which it is at any time beneficially entitled on
any account at, any sum held to its order by and/or any liability to it
of, any office of that party in or towards satisfaction of any sum then
due from it to that party under this Agreement and unpaid and, for that
purpose, to convert one currency into another (but so that nothing in
this Clause 25.1 shall be effective to create a charge). No party shall
be obliged to exercise any of its rights under this Clause, which shall
be without prejudice and in addition to any right of set-off,
combination of accounts, lien or other right to which it is at any time
otherwise entitled (whether by operation of law, contract or
otherwise).
25.2 PRO RATA SHARING: If at any time the proportion received or recovered
(whether by direct payment,
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by exercise of any right of set-off, combination of accounts or lien,
or otherwise) by any Bank in respect of the total sum which has become
due to it from an Obligor under this Agreement before that time exceeds
the proportion received or recovered by the Bank(s) receiving or
recovering the smallest proportion (if any), then:
25.2.1 within 2 Business Days after receiving a request from the
Agent, that Bank shall pay to the Agent an amount equal to the
excess
25.2.2 the Agent shall promptly distribute that payment as if it were
made by the Borrower and
25.2.3 as between that Obligor, and the Banks, that excess amount
shall be treated as having been paid to the Banks to which
(and in the proportions in which) it is distributed under
Clause 25.2.2, rather than as having been paid to that Bank.
Within 2 Business Days after any Bank receives or recovers any such sum
(except for a sum received or recovered in respect of the Overdraft
Facility) otherwise than by payment through the Agent, that Bank shall
notify the Agent of the amount and currency so received or recovered,
how it was received or recovered and whether it represents principal,
interest or other sums. If all or part of any amount so received or
recovered by that Bank has to be refunded by it (with or without
interest), each Bank to whom any part of that amount has been
distributed shall (within 2 Business Days after receiving a request
from that Bank) in turn pay to that Bank its proportionate share of the
amount to be refunded and of any interest required to be paid by that
Bank on that amount in respect of all or any part of the period from
the date of the relevant distribution to the date of that payment to
that Bank.
Any amount received or recovered by a Bank under a novation,
assignment, sub-participation (or the like) shall be ignored for the
purpose of this Clause 25.2 (except to the extent, if any, that such
amount is received or recovered from or is, to that Bank's knowledge,
funded by the Obligor, or any other member of the Group). Furthermore,
a Bank shall not be obliged to share any amount which it has received
or recovered as a result of taking legal proceedings with any other
Bank which had an opportunity to participate in those legal proceedings
but did not do so and did not take separate legal proceedings.
26 EXPENSES AND STAMP DUTY
26.1 EXPENSES AND STAMP DUTY: Whether or not any Advance is made, the
Borrower shall pay:
26.1.1 Initial Expenses: on demand, all reasonable costs and expenses
(including Taxes thereon and legal fees) properly incurred by
the Agent or the Arrangers in connection with the preparation,
printing, negotiation, entry into or advertising of the
Information Memorandum, the Syndication and this Agreement
and/or any amendment of, supplement to or waiver or consent in
respect of this Agreement requested by or on
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behalf of the Borrower (whether or not entered into or given)
26.1.2 Enforcement Expenses: on demand, all costs and expenses
(including Taxes thereon and legal fees) incurred by the Agent
in the administration of, or by the Agent or any Bank in
protecting or enforcing (or attempting to protect or enforce)
any right under, this Agreement and/or any such amendment,
supplement, waiver or consent and
26.1.3 STAMP DUTY: promptly, and in any event before any interest or
penalty becomes payable, any stamp, documentary, registration
or similar Tax payable in connection with the entry into,
registration, performance, enforcement or admissibility in
evidence of this Agreement and/or any such amendment,
supplement, waiver or consent, and shall indemnify the Agent
and the Banks against any liability with respect to or
resulting from any delay in paying or omission to pay any such
Tax.
26.2 OTHER EXPENSES: The Borrower shall also, from time to time on demand of
the Agent, reimburse it, at such hourly and/or daily rates as it shall
from time to time notify to the Borrower, in respect of management time
and/or other resources used by it in connection with any such
amendment, supplement, waiver or consent, or complying with any
instructions from the Majority Banks, or the protection or enforcement
or attempted protection or enforcement of any right under this
Agreement and/or any such amendment, supplement, waiver or consent.
27 CALCULATIONS AND EVIDENCE
27.1 BASIS OF CALCULATION: All interest shall accrue from day to day and
shall be calculated on the basis of a year of 360 days (or 365 days in
the case of Sterling) and the actual number of days elapsed.
27.2 LOAN ACCOUNTS: The entries made in the accounts maintained by each Bank
in accordance with its usual practice shall be prima facie evidence of
the existence and amounts of the obligations of the Borrower recorded
in them.
27.3 CERTIFICATES: A certificate by the Agent, either Arranger, the
Overdraft Facility Bank or any Bank as to any sum payable to it under
this Agreement, and any other certificate, determination, notification
or the like of the Agent, either Arranger, the Overdraft Facility Bank
or any Bank or the Majority Banks provided for in this Agreement, shall
be conclusive save for manifest error. Any such certificate as to any
sum shall set out the basis of computation of that sum in reasonable
detail but shall not be required to disclose any information reasonably
considered to be confidential.
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28 NOVATION
28.1 BENEFIT AND BURDEN OF THIS AGREEMENT: This Agreement shall benefit and
bind the parties, any New Bank in respect of which a Novation Notice
becomes effective in accordance with Clause 28.3, their permitted
assignees and their respective successors. Any reference in this
Agreement to any party shall be construed accordingly.
28.2 BORROWER: The Borrower may not assign or transfer all or part of its
rights or obligations under this Agreement.
28.3 BANKS:
28.3.1 Any Bank may at any time novate all or part of its share of an
Advance or its Revolving Credit Facility Commitment to any
Qualifying Lender which is an Affiliate of that Bank without
the consent of any party or to any other Qualifying Lender
with the consent of the Borrower (which consent shall be
deemed to have been given unless, within 7 days of being
requested to consent, the Borrower refuses its consent on
reasonable grounds stated in its refusal). However, no consent
shall be needed after any notice is sent under Clause 20.2.1
or 20.2.2. Any such novation shall be made by delivering to
the Agent a duly completed and executed Novation Notice
whereupon, subject to the terms of that Novation Notice:
(i) to the extent that in that Novation Notice the
relevant Bank seeks to novate its share of an Advance
and/or its Revolving Credit Facility Commitment, the
Borrower and that Bank shall each be released from
further obligations to each other and their
respective rights against each other shall be
cancelled (such rights and obligations being referred
to as "DISCHARGED RIGHTS AND OBLIGATIONS")
(ii) the Borrower and the relevant New Bank shall each
assume new obligations towards each other and/or
acquire new rights against each other which differ
from the discharged rights and obligations only
insofar as the Borrower and that New Bank have
assumed and acquired the same in place of the
Borrower and that Bank and
(iii) the New Bank and the other parties to this Agreement
(other than the Borrower) shall acquire the same
rights and assume the same obligations between
themselves as at the date of novation as they would
have acquired and assumed had that New Bank been an
original party to this Agreement as a Bank with the
rights and/or obligations acquired or assumed by it
as a result of that novation (and, to that extent,
the original Bank and those other parties shall each
be released from further obligations to each other).
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28.3.2 Each Novation Notice or notice of assignment sent to the Agent
shall be accompanied by a transfer fee payable to the Agent by
the Bank seeking the novation or, as the case may be, making
the assignment. Until further notice, that fee (which will be
subject to review by the Agent from time to time) will be
pound sterling 950 for each novation or assignment.
28.4 FACILITY OFFICES: The initial Facility Office of each Bank has been
notified by that Bank to the Agent. Any Bank may at any time change its
Facility Office in relation to all or a specified part of its Revolving
Credit Facility Commitment and/or Advances by notifying the Agent of
the fax number and address of its new Facility Office. The Facility
Office must be in the United Kingdom.
28.5 REFERENCE BANKS:
28.5.1 If a Reference Bank ceases to have a London office or novates
or assigns all its rights and obligations under this Agreement
or if the Revolving Credit Facility Commitment of any
Reference Bank is cancelled under Clause 7.2 or if its
Advances are prepaid under Clause 6.4 or 12, it shall be
replaced as a Reference Bank by such other Bank with an office
in London as the Agent (after consultation with the Borrower)
shall designate by notice to the Borrower and the Banks.
28.5.2 If a Reference Bank does not supply a quotation required from
it in order to determine LIBOR pursuant to this Agreement,
LIBOR shall be determined on the basis of the quotations
supplied by the remaining Reference Banks.
28.6 DISCLOSURE OF INFORMATION: The Agent or any Bank may disclose to an
actual or potential New Bank, assignee approved by the Borrower for the
purposes of Clause 28.3.1, sub-participant or the like or any other
Person approved by the Borrower (such approval not to be unreasonably
withheld or delayed) such information about the Borrower or any other
Person as it may think fit
28.7 CONFIDENTIALITY: The Agent, the Arrangers and each Bank agree to
maintain the confidentiality of any information (other than information
which is publicly available other than by a breach of this provision)
received by it under this Agreement about any member of the Group and
shall only disclose such information to another Person (other than the
Agent or another Bank) if that Person agrees to maintain the
confidentiality of any such information by an agreement in writing
addressed to the Borrower, except where the Agent, such Arranger, such
Bank or such Person is required to disclose that information:
28.7.1 in connection with any legal proceedings arising out of or in
connection with this Agreement; or
28.7.2 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
28.7.3 pursuant to any law or regulation in accordance with which
that Bank is required to act;
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or
28.7.4 to any governmental, banking or taxation authority of
competent jurisdiction; or
28.7.5 to its auditors or legal or other professional advisers.
29 REMEDIES, WAIVERS, AMENDMENTS AND CONSENTS
29.1 NO IMPLIED WAIVERS, REMEDIES CUMULATIVE: No failure on the part of the
Agent or any Bank to exercise, and no delay on its part in exercising,
any right or remedy under this Agreement will operate as a waiver
thereof, nor will any single or partial exercise of any right or remedy
preclude any other or further exercise of that or any other right or
remedy. The rights and remedies provided in this Agreement are
cumulative and not exclusive of any other rights or remedies (whether
provided by law or otherwise).
29.2 AMENDMENTS, WAIVERS AND CONSENTS: Any provision of this Agreement may
be amended or supplemented only if the Borrower and the Majority Banks
so agree in writing and any Event of Default, Potential Event of
Default, provision or breach of any provision of this Agreement may be
waived before or after it occurs only if the Majority Banks so agree in
writing but:
29.2.1 an amendment, supplement or waiver which puts one or more
Banks in a better or worse position than one or more other
Banks or changes or relates to (a) the amount of the Available
Revolving Credit Facility or any Bank's Revolving Credit
Facility Commitment or Available Revolving Credit Facility
Commitment (b) the Maturity Date, (c) the amount or currency
of the Advances, (d) the amount or date of any repayment, (e)
the length of Interest Periods, (f) a reduction in the amount
or a change in the date(s) of payment of any fee payable under
Clause 11, (g) the currency of any payment, (h) the definition
of "APPLICABLE MARGIN", "LIBOR" or "MAJORITY BANKS", (i) any
provision expressed to require the consent of all the Banks
(whether or not containing any other exceptions) or (j) this
Clause 29.2, shall require the agreement of all the Banks and
(in the case of an amendment or supplement) the Borrower also
and
29.2.2 an amendment, supplement or waiver which changes or relates to
the rights and/or obligations of the Agent shall require its
agreement also.
Any consent by the Agent or any Bank or the Majority Banks under this
Agreement must also be in writing. Any such waiver or consent may be
given subject to any conditions thought fit by the Person giving it and
shall be effective only in the instance and for the purpose for which
it is given.
29.3 Single European Currency: Paragraphs 2 to 12 of Schedule 13 (Single
European Currency) shall come into effect on the Commencement Date (as
defined in that Schedule). However, to the extent that any provision in
those paragraphs relates to any state (or currency of a state) which is
not a
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participating member state on the Commencement Date, that provision
shall come into effect on the date on which that state becomes a
participating member state.
30 COMMUNICATIONS
30.1 ADDRESSES: Each communication under this Agreement shall be made by fax
or otherwise in writing. Each communication or document to be delivered
to any party under this Agreement shall be sent to it at the fax number
or address, and marked for the attention, if any, from time to time
designated by it to the Agent (or, in the case of the Agent, by it to
each other party) for the purpose of this Agreement. The initial fax
number, address and marking (if any) so designated by each Obligor and
the Agent are set out under its name at the end of this Agreement. Any
communication or document from or to each Obligor shall be sent to, by
or through the Agent.
30.2 DEEMED DELIVERY: Any communication from an Obligor shall be
irrevocable, and shall not be effective until received by the Agent.
Any other communication to any Person shall be conclusively deemed to
be received by that Person:
30.2.1 if sent by fax between 9 a.m. and 5 p.m. (local time in the
place to which it is sent) on a working day in that place,
when sent or, if sent by fax at any other time, at 9 a.m.
(local time in the place to which it is sent) on the next
working day in that place or
30.2.2 in any other case, when left at the address required by Clause
30.1 or within 2 such working days after being put in the post
postage prepaid and addressed to it at that address.
For this purpose, working days are days other than Saturdays, Sundays
and bank holidays.
31 PARTIAL INVALIDITY
The illegality, invalidity or unenforceability of any provision of this
Agreement under the law of any jurisdiction shall not affect its
legality, validity or enforceability under the law of any other
jurisdiction nor the legality, validity or enforceability of any other
provision.
32 NATURE OF RIGHTS AND OBLIGATIONS
32.1 LIABILITY SEVERAL: The liability of the Banks is several. No
party to this Agreement shall be responsible for the
obligations of any other party. The failure of a Bank to
perform its obligations shall not release any other party from
its obligations.
32.2 RIGHTS SEVERAL: The rights of the Banks are also several. The
amount at any time owing by the Borrower to any party under
this Agreement shall be a separate and independent debt from
the
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amount owing to any other party.
32.3 CONTINUATION OF CERTAIN OBLIGATIONS: The obligations of any party under
or in respect of Clauses 11, 13, 21, 22, 24.8, 25, 26, 28.6 and 28.7
shall continue even after all the Revolving Credit Facility Commitments
have terminated and all the Advances have been repaid or prepaid.
33 COUNTERPARTS
This Agreement may be signed in any number of counterparts, all of
which taken together and when delivered to the Agent shall constitute
one and the same instrument. Any party may enter into this Agreement by
signing any such counterpart.
34 GOVERNING LAW AND JURISDICTION
34.1 GOVERNING LAW: This Agreement shall be governed by and construed in
accordance with the laws of England.
34.2 ENGLISH COURTS: For the benefit of the Agent, the Arrangers, the
Overdraft Facility Bank and each Bank, all the parties irrevocably
agree that the courts of England are to have jurisdiction to settle any
disputes which may arise out of or in connection with this Agreement
and that, accordingly, any legal action or proceedings arising out of
or in connection with this Agreement ("PROCEEDINGS") may be brought in
those courts and each Obligor irrevocably submits to the jurisdiction
of those courts.
34.3 U.S. COURTS: Without prejudice to Clause 34.2, each Obligor further
irrevocably agrees that any Proceedings may be brought in any New York
State or United States Federal court sitting in New York City and
submits to the non-exclusive jurisdiction of each such court.
34.4 OTHER COMPETENT JURISDICTION: Nothing in this Clause 34 shall limit the
right of the Agent, the Arrangers, the Overdraft Facility Bank and/or
any Bank to take Proceedings against an Obligor in any other court of
competent jurisdiction nor shall the taking of Proceedings in one or
more jurisdictions preclude the Agent, the Arrangers, the Overdraft
Facility Bank and/or any Bank from taking Proceedings in any other
jurisdiction, whether concurrently or not.
34.5 VENUE: Each Obligor irrevocably waives any objection which it may at
any time have to the laying of the venue of any Proceedings in any
court referred to in this Clause 34 and any claim that any such
Proceedings have been brought in an inconvenient forum. Each party
irrevocably waives all right to trial by jury in any Proceedings.
34.6 SERVICE OF PROCESS:
34.6.1 Each Obligor irrevocably appoints Kirsty Inc. and its
successors (of ββ ββββββββ, βββ βββββ, βββ ββββ, β.β. βββββ,
β.β.β.) to receive, for it and on its behalf, service of
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process in any Proceedings in New York. Each Obligor not
incorporated in England irrevocably appoints the Borrower to
receive for it and on its behalf service of process in any
proceedings in England. Such service shall be deemed completed
on delivery to the relevant process agent (whether or not it
is forwarded to and received by the Borrower). If for any
reason Kirsty Inc. ceases to be able to act as such or no
longer has an address New York, as the case may be, each
Obligor irrevocably agrees to appoint a substitute process
agent acceptable to the Agent, and to deliver to the Agent a
copy of the new agent's acceptance of that appointment, within
30 days.
34.6.2 Each Obligor irrevocably consents to any process in any
Proceedings anywhere being served by mailing a copy by
registered or certified prepaid airmail post to it in
accordance with Clause 30. Such service shall become effective
28 days after mailing.
34.6.3 Nothing shall affect the right to serve process in any other
manner permitted by law.
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SCHEDULE 1
INFORMATION PACKAGE
Accountant's Report
Circular
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SCHEDULE 2
MANDATORY COSTS
1 Mandatory Costs in relation to any Interest Period (or part of an
Interest Period) relating to any particular Advance or overdue sum will
be determined by the Agent on the basis of calculations made by each
Reference Bank as at 11 a.m. on the first day of that Interest Period.
2 Mandatory Costs will be the percentage rate per annum determined by the
Agent to be the arithmetic mean (rounded up to 4 decimal places) of the
respective rates notified by each Reference Bank to the Agent at its
request as the rate resulting from the application of whichever of the
following formulae is appropriate:
in relation to Advances or overdue sums denominated in Sterling:
in relation to Advances or overdue sums denominated in any other
currency:
where on the day of application of a formula:
X is the percentage of Eligible Liabilities (in excess of any
stated minimum) by reference to which such Reference Bank is
required under or pursuant to the Bank of England Act 1998
(the "ACT") to maintain cash ratio deposits with the Bank of
England
L is the percentage rate per annum at which Sterling deposits
for the relevant period are offered by such Reference Bank to
leading banks in the London inter-bank market at or about 11
a.m. on that day
F is the rate of charge payable by such Reference Bank to the
Financial Services Authority (the "FSA") pursuant to the
relevant paragraph of the Fees Regulations (but where, for
this purpose, the figure at the relevant paragraph shall be
deemed to be zero) and expressed in pounds per pound
sterling 1 million of the Fee Base of such Reference Bank
S is the level of Special Deposits, expressed as a percentage
of Eligible Liabilities, which such Reference Bank is
required to maintain by the Bank of England (or any other
United Kingdom Agency)
D is the percentage rate per annum payable by the Bank of
England to such Reference Bank on Special Deposits
X, L, S and D are to be expressed in the formula as numbers and not as
percentages. A negative result obtained from subtracting D from L shall
be counted as zero.
3 For the purposes of this Schedule:
"ELIGIBLE LIABILITIES" and "SPECIAL DEPOSITS" have the meanings given
to them under or pursuant to the Act, or by the Bank of England (as may
be appropriate), on the day of application of the formula.
74
76
"FEE BASE" has the meaning given to it for the purposes of, and shall
be calculated in accordance with, the Fees Regulations.
"FEES REGULATIONS" means, as appropriate, either:
(a) the Banking Supervision (Fees) Regulations 1998 or
(b) such regulations as are from time to time in force, relating
to the payment of fees for banking supervision, in respect of
periods subsequent to 31 March 1999.
4 Each Reference Bank shall use reasonable endeavours to supply to the
Agent on request the percentage rate per annum so calculated by it on
any date. If any Reference Bank does not do so on request of the Agent,
the Agent shall determine the relevant Mandatory Costs on the basis of
the quotations supplied by the remaining Reference Banks. If no
Reference Bank supplies a quotation on request of the Agent, then the
Agent, in consultation with the Borrower, shall select suitable Banks
to supply quotations, if no, or only one suitable Bank supplies a
quotation then instead of Mandatory Costs being payable in respect of
the relevant period, each Bank shall be entitled to claim compensation
under Clause 13 (Increased Costs).
5 If there is any change in circumstance (including the introduction of
alternative or additional requirements and/or any change in the
interpretation or application of any requirement) which in the
reasonable opinion of the Agent renders or will render the method of
calculating Mandatory Costs wholly or partly inappropriate or
inapplicable, the Agent may (after consultation with the Borrower and
the Banks) vary the method of calculating Mandatory Costs by notifying
the Borrower and the Banks of the new method. Any such variation shall,
save for manifest error, be conclusive and binding on all parties and
shall apply from the date specified in that notification.
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77
SCHEDULE 3
NOVATION NOTICE
To: Lloyds Bank Plc
St. George's House
ββ βββ βββ
β-β βββββββββ
ββββββ ββββ βββ
Attention: [ ]
MISYS PLC CREDIT AGREEMENT
DATED 5 September 1997 (the "AGREEMENT")
1 This Novation Notice relates to the Agreement. Terms defined in the
Agreement have the same meaning in this Novation Notice.
2 The undersigned Existing Bank:
2.1 confirms that, to the extent details appear below under the heading
"RIGHTS AND/OR OBLIGATIONS TO BE NOVATED", those details accurately
summarise the rights and/or obligations which are to be novated and
which are, upon delivery of this Novation Notice to the Agent (but
subject to 3 below), cancelled and discharged in accordance with Clause
28.3 of the Agreement and
2.2 confirms that any consent of the Borrowers required in accordance with
Clause 28.3 of the Agreement has been obtained to this novation.
3 The undersigned New Bank agrees that it assumes and acquires new rights
and/or obligations in accordance with Clause 28.3 of the Agreement on
and with effect from - 199- [subject only to the Agent's having
received tested telex confirmation from - that the sum of - has been
credited to the Existing Bank's account with - for value that date].
4 The undersigned New Bank:
4.1 confirms that it is a Qualifying Lender
4.2 confirms that, until further notice, its Facility Office and details
for communications are as set out below
4.3 agrees to perform and comply with the obligations expressed to be
imposed on it by Clause 28.3 of the Agreement as a result of this
Novation Notice taking effect and
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78
4.4 if not already a Bank, irrevocably appoints the Agent to act as its
agent as provided in the Agreement and agrees to be bound by the
Agreement (including, but not limited to, Clause 24 and particularly,
but not limited to, Clauses 24.5, 24.7 and 24.8).
5 The above confirmations and agreements are given to and for the benefit
of and made with each of the other parties to the Agreement.
6 This Novation Notice shall be governed by and construed in accordance
with the laws of England.
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79
EXISTING BANK
Name:
By:
Authorised Signatory
Date: 19
NEW BANK
Name:
By:
Authorised Signatory
Date: 19
FACILITY OFFICE
Address:
Fax No:
Telex No:
Attention:
RIGHTS AND/OR OBLIGATIONS TO BE NOVATED
1 Existing Bank's Revolving Credit Facility Commitment to be novated:
U.S.$
2 Existing Bank's share(s) of Advance(s) to be novated:
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80
SCHEDULE 4
NOTICE REQUESTING ADVANCE
To: Lloyds Bank Plc
Attention: [Insert name of relevant Department or title of relevant
officer]
CREDIT AGREEMENT DATED 5 SEPTEMBER 1997
We refer to the above Agreement between, among others, ourselves and
Banks and yourselves as Agent. Terms defined in that Agreement have the
same meaning in this notice.
We give you notice that we wish an Advance to be made as follows:
Amount:
Currency:
Date: (or, if that is not a Business Day, the next Business Day)
INTEREST [one][two][three][six][other][or, if election not effective, - months]
PERIOD
The proceeds of the Advance are to be made available by credit to [the
account of -] at -.
[No Event of Default or Potential Event of Default has occurred and is
continuing, or will occur as a result of making this Advance. All
representations and warranties in Clause 17.1 of the Agreement (except
those not to be repeated in accordance with their respective terms
pursuant to Clauses 17.1.18 and 17.3.5) have been complied with and
would be correct in all material respects if repeated today by
reference to the circumstances now existing.]
Dated -
By:
Authorised signatory
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81
SCHEDULE 5
PRINCIPAL SUBSIDIARIES
Kindle Banking Systems Ltd
Midas Kapiti International Limited
Misys Financial Systems Limited
Kapiti Limited
Midas Kapiti International PTE Ltd
ACT Financial Systems Limited
Kindle Group Ltd
Misys International SA
Misys Overseas Limited
Misys Holdings Limited
Countrywide Holding (UK) plc
Midas Kapiti Germany GmbH
Midas Kapiti International Limited (Hong Kong)
Quotient SA
FIT SNC
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SCHEDULE 6
BORROWER'S CONFIRMATION OF UNCONDITIONALITY
I refer to the Credit Agreement dated 5 September 1997 between Misys plc
(the "BORROWER"), the Arrangers and Banks named in it and yourselves as
Agent (the "AGREEMENT"). Terms defined and references construed in the
Agreement have the same meaning and construction in this Certificate.
To: Lloyds Bank Plc - 1997
as Agent for the Banks
I am a Director of Misys plc and hereby certify as follows:
1 I am duly authorised to give this Certificate.
2 Admission of the Stock: I confirm that Admission of the Stock occurred
on [ ] 1997
3 Closing of the Merger Agreement: Misys plc is not aware of any reason
that would prohibit or delay the consummation of the Merger Agreement
or why the Effective Time will not occur tomorrow. All conditions other
than Article 8.2(e) to the Merger Agreement have been satisfied and the
filing of the certificates of Merger with the Secretary of the State of
North Carolina is expected to be made tomorrow.
This Certificate may be relied on by the Agent, the Arrangers and each
Bank.
......................................................................
DIRECTOR
FOR AND ON BEHALF
OF MISYS PLC
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83
SCHEDULE 7
TIMETABLES
Under "RELEVANT TIME", numbers indicate numbers of Business Days. See
Clause 1 for meaning.
The activity described under "ACTION" is a summary only. Reference
should be made to the relevant Clause, which will prevail in the case
of any inconsistency.
References to time are to London time, except where otherwise
indicated:
"D" = Date on which the Advance is to be made
"B" = Borrower
"A" = Agent
"BK" = Bank
A Drawdown under Revolving Credit Facility in Sterling
RELEVANT TIME ACTION CLAUSE REFERENCES
D - 1 Drawdown request to A 4.1
10 a.m.
D - 2 A calculates Dollar Amount as 1.1 (definition of "DOLLAR
11.00 a.m. a.m. on D-2 AMOUNT")
D - 1 A notifies Bks of request 4.2
12 p.m.
D - 1 Bks may object to Term other 8.1.51,
3 p.m. 2, 3 or 6 months
D - 1 A notifies B and Bks of any of any 8.1.5
5 p.m. objections
D LIBOR set 1.1 (definition of "RATE FIXING
11 a.m. DAY")
Bks put A in funds 16.2
D A makes funds available to B 16.3.2
Close of business
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84
D Drawdown under Revolving Credit Facility in Dollars or an Optional Currency
RELEVANT TIME ACTION CLAUSE REFERENCES
D - 3 Drawdown request to A 4.1 and 9.3
10 a.m.
D - 3 If Optional Currency, A calcu1ates 1.1 (definition of "REQUIRED
11.00 a.m. Dollar Amount AMOUNT")
D - 3 A notifies Bks of request 4.2
12 p.m.
D - 3 Bks may object to Optional Currency 9.3
3 p.m. requested by B
D - 3 A notifies B and Bks of any objection 9.3
5 p.m.
D - 2 LIBOR set 1.1 (definition of "RATE FIXING
11 a.m. DAY")
D Bks put A in funds 16.2.1
11 a.m. New York
City time
(for Dollars)
Customary time in 16.2.2
Place of Payment
(for Optional
Currency)
D A makes funds available to B 16.3.2
Close of business
(in Place of
Payment)
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85
SCHEDULE 8A
FORM OF GUARANTOR ACCESSION DEED
To: Lloyds Bank Plc
From: [Subsidiary] - 1997
Dear Sirs
1 We refer to the agreement (as from time to time amended, varied,
novated or supplemented, the "CREDIT AGREEMENT") dated 5 September 1997
and made between Misys plc (the "BORROWER"), as borrower, Baring
Brothers Limited (trading as ING Barings) and Lloyds Bank Plc (trading
as Lloyds Bank Capital Markets) as arrangers, Lloyds Bank Plc as agent
and the financial institutions named therein as Banks. Terms defined in
the Credit Agreement shall have the same meaning in this deed. This
deed is supplemental to the Credit Agreement.
2 [Subsidiary] hereby agrees to be a Guarantor pursuant to Clause 19.15
of the Credit Agreement and accordingly undertakes henceforth to
perform all the obligations expressed to be undertaken under the Credit
Agreement by a Guarantor in all respects as if it had been an original
party thereto.
3 [Subsidiary's] administrative details are as follows:
Address:
Telephone No:
Telex No:
Telefax No:
4 This deed shall be governed by and construed in all respects in
accordance with English law.
IN WITNESS WHEREOF this deed has been executed the day and year first
before written.
THE COMMON SEAL of
[Subsidiary]
was hereunto affixed
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86
in the presence of:
[or Executed as a deed
Director
Director/Secretary]
85
87
SCHEDULE 8B
FORM OF GUARANTOR ACCESSION DEED (FRENCH GUARANTOR)
To: Lloyds Bank Plc
From: [Subsidiary] - 1997
Dear Sirs
1 We refer to the agreement (as from time to time amended, varied,
novated or supplemented, the "CREDIT AGREEMENT") dated 5 September 1997
and made between Misys plc (the "BORROWER"), as borrower, Baring
Brothers Limited (trading as ING Barings) and Lloyds Bank Plc (trading
as Lloyds Bank Capital Markets) as arrangers, Lloyds Bank Plc as agent
and the financial institutions named therein as Banks. Terms defined in
the Credit Agreement shall have the same meaning in this deed. This
deed is supplemental to the Credit Agreement.
2 Subject to paragraph 3 below [Subsidiary] hereby agrees to be a
Guarantor pursuant to Clause 19.15 of the Credit Agreement and
accordingly undertakes henceforth to perform all the obligations
expressed to be undertaken under the Credit Agreement by a Guarantor in
all respects as if it had been an original party thereto.
3 "The liability of [Subsidiary] under the guarantee under Clause 23 of
the Credit Agreement is limited to the amount constituting 70% of the
net asset value of [Subsidiary] as shown in its most recent audited
accounts on the date of implementation of such guarantee.
4 [Subsidiary's] administrative details are as follows:
Address:
Telephone No:
Telex No:
Telefax No:
5 This deed shall be governed by and construed in all respects in
accordance with English law.
IN WITNESS WHEREOF this deed has been executed the day and year first
before written.
THE COMMON SEAL of
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88
[Subsidiary]
was hereunto affixed
in the presence of:
[or Executed as a deed
Director
Director/Secretary]
87
89
SCHEDULE 8C
Form of Guarantor Accession Deed (German Guarantor)
To: Lloyds Bank Plc
From: [Subsidiary] - 1997
Dear Sirs
1 We refer to the agreement (as from time to time amended, varied,
novated or supplemented, the "Credit Agreement") dated 5 September 1997
and made between Misys plc (the "BORROWER"), as borrower, Baring
Brothers Limited (trading as ING Barings) and Lloyds Bank Plc (trading
as Lloyds Bank Capital Markets) as arrangers, Lloyds Bank Plc as agent
and the financial institutions named therein as Banks. Terms defined in
the Credit Agreement shall have the same meaning in this deed. This
deed is supplemental to the Credit Agreement.
2 [Subsidiary] hereby agrees to be a Guarantor pursuant to Clause 19.15
of the Credit Agreement and accordingly undertakes henceforth to
perform all the obligations expressed to be undertaken under the Credit
Agreement by a Guarantor in all respects as if it had been an original
party thereto to the extent not violating sections 30 and 31 of the Act
on Limited Liability Companies (Gesetz betreffend die Gesellschaften
mit besehrankter Haftung)
3 [Subsidiary's] administrative details are as follows:
Address:
Telephone No:
Telex No:
Telefax No:
4 This deed shall be governed by and construed in all respects in
accordance with English law.
IN WITNESS WHEREOF this deed has been executed the day and year first
before written.
THE COMMON SEAL of
[Subsidiary]
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90
was hereunto affixed
in the presence of:
[or Executed as a deed
Director
Director/Secretary]"
89
91
SCHEDULE 9
DOCUMENTS TO ACCOMPANY FORM OF GUARANTOR ACCESSION DEED
1 A copy, certified a true copy by a duly authorised officer of the
proposed Guarantor, of the [Memorandum and Articles of Association]
[constitutional documents] of such proposed Guarantor.
2 A copy, certified a true copy by a duly authorised officer of the
proposed Guarantor, of a Board Resolution and a Shareholder Resolution
of such proposed Guarantor approving the execution and delivery of a
Guarantor Accession Deed, the accession of such proposed Guarantor to
this Agreement and the performance of its obligations under this
Agreement and authorising a person or persons (specified by name or
office) on behalf of such proposed Guarantor to sign such Guarantor
Accession Deed and any other documents to be delivered by such proposed
Guarantor pursuant thereto.
3 A certificate of a duly authorised officer of the proposed Guarantor
setting out the names and signatures of the person or persons mentioned
in the resolution referred to in paragraph (2) above.
4 A copy of its latest financial statements.
5 Legal opinion of legal counsel in a form satisfactory to the Agent.
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SCHEDULE 10
FORM OF LINKLATERS & PAINES OPINION
Lloyds Bank Plc
ββ. ββββββ'β βββββ
ββ βββ βββ
6-8 Eastcheap
London EC3M 1LL
(the "AGENT")
Baring Brothers Limited
ββ ββββββ ββββ
ββββββ
ββββ βββ
(together with Lloyds Bank Plc, the "ARRANGERS")
and
ING Bank N.V., London Branch
ββ ββββββ ββββ
ββββββ
ββββ βββ
(together with Lloyds Bank Plc, the "BANKS")
- September 1997
Dear Sirs
1 We have acted as your English legal advisers in connection with a
credit agreement dated 5 September 1997 (the "AGREEMENT") between Misys
plc (the "BORROWER"), the Arrangers, the Agent and the Banks named in
it and have taken instructions solely from you. Terms defined in the
Agreement have the same meaning in this opinion.
2 This opinion is limited to English law as applied by the English courts
and is given on the basis that it will be governed by and construed in
accordance with English law.
3 For the purpose of this opinion, we have examined the documents listed
in the Schedule to this letter. We have assumed that the Agreement has
been validly signed and delivered by the Borrower and is within the
capacity and powers of, and has been validly authorised, signed and
delivered by,
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93
each party other than the Borrower.
4 In our opinion:
(a) The Borrower is a company incorporated in England under the
Companies Acts 1948 to 1976 and 1985.
(b) The Borrower has corporate power to enter into and to perform
its obligations under the Agreement and has taken all
necessary corporate action (other than an increase in the
borrowing powers of the Borrower contained in a special
resolution of the Borrower referred to in paragraph 6(g)
below) to authorise borrowings under the Agreement and to
authorise its signing, delivery and performance of the
Agreement.
(c) The Agreement constitutes valid, binding and enforceable
obligations of the Borrower.
5 The term "ENFORCEABLE" as used above means that the obligations assumed
by the Borrower under the Agreement are of a type which the English
courts enforce. It does not mean that those obligations will
necessarily be enforced in all circumstances in accordance with their
terms. In particular:
(d) Enforcement may be limited by bankruptcy, insolvency,
liquidation, reorganisation and other laws of general
application relating to or affecting the rights of creditors.
(e) Enforcement may be limited by general principles of equity -
for example, equitable remedies may not be available where
damages are considered by the court to be an adequate remedy.
(f) Claims may become barred under the Limitation βββ ββββ or may
be or become subject to set-off or counterclaim.
(g) Where obligations are to be performed in a jurisdiction
outside England, they may not be enforceable in England to the
extent that performance would be illegal under the laws of
that jurisdiction.
(h) An agreement to negotiate (such as that in Clause 14.2 of the
Agreement) is unenforceable, but this does not affect the
enforceability of those
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94
provisions of the Agreement as to the consequences of any
failure to negotiate or agree on the relevant matter.
6 This opinion is subject to the following qualifications:
(a) So far as they relate to United Kingdom stamp duties, the
undertakings and indemnities given by the Borrower in Clause
26.1.3 of the Agreement may be void under Section 117 of the
Stamp βββ ββββ. However, no United Kingdom stamp duty is
payable in respect of the signing and delivery of the
Agreement.
(b) A certificate, determination, notification, opinion or the
like might be held by the English courts not to be conclusive
if it could be shown to have an unreasonable or arbitrary
basis or in the event of manifest error despite any provision
in the Agreement to the contrary.
(c) Any term of an agreement may be amended orally by the parties
despite provisions such as Clause 29.2 of the Agreement.
(d) Interest provided for under Clause 21 of the Agreement may not
be recoverable if it amounts to a penalty under English law.
(e) An English court may refuse to give effect to Clause 26.1.2 of
the Agreement in respect of the costs of unsuccessful
litigation brought before an English court or where the court
has itself made an order for costs.
(f) Clause 31 of the Agreement may not be effective - it depends
on the nature of the illegality, invalidity or
unenforceability in question.
(g) We express no opinion as to compliance or otherwise with the
financial limitations on borrowings by the Borrower contained
in Article 87 of the Borrower's Articles of Association.
However, we note that a special resolution is to be proposed
at an extraordinary general meeting of the Borrower to be held
on [22] September 1997 to authorise borrowings under the
Agreement.
7 This opinion is addressed to you solely for the benefit of you and the
Banks and solely in connection with the Agreement. It is not to be
transmitted to anyone else nor is it to be relied upon by anyone else
or for any other purpose or quoted or referred to in any public
document or filed
93
95
with anyone without our express consent.
Yours faithfully
Linklaters & Paines
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96
SCHEDULE 1
1 A signed copy of the Agreement.
2 A certificate of the Borrower dated - September 1997, together with the
documents stated in paragraphs 2, 3 and 4 of that certificate as being
delivered with it.
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SCHEDULE 11
FORM OF COMPLIANCE CERTIFICATE
To: Lloyds Bank Plc
(as Agent for the Banks
participating in the Credit
Agreement referred to
below)
Director's Certificate
[Date]
I refer to the agreement (as from time to time amended, varied, novated
or supplemented, the "CREDIT AGREEMENT") dated 5 September 1997 and
made between Misys plc (the "BORROWER"), as borrower, Baring Brothers
Limited (trading as ING Barings) and Lloyds Bank Plc (trading as Lloyds
Bank Capital Markets) as arrangers, Lloyds Bank Plc as agent and the
financial institutions named therein as Banks. Terms defined in the
Credit Agreement shall have the same meaning herein and references to
Clauses are to Clauses in the Credit Agreement. The financial
information given below is derived from the [audited accounts] [interim
accounts] [management accounts] for the period [-].
1 FINANCIAL INFORMATION
I confirm that as at the Test Date dated [ ]
(a) Reported consolidated operating profit before tax for the most
recently completed twelve month period was [pound sterling-]
(b) Exceptional items in accordance with Financial Reporting
Standard 3 for the most recently completed twelve month period
were; positive [pound sterling-] and negative [pound
sterling-]
(c) Net Interest payable was [pound sterling-]
(d) Adjustments to ensure that consolidated profit conforms with
the definition of "HEADLINE EARNINGS" as described in
paragraphs 21 and 22 of the Statement of Investment Practice
No. 1 published by the Institute of Investment Management and
Research were - and therefore PBIT for the most recently
completed twelve month period was [pound sterling-]
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98
(e) Depreciation and amortisation for the most recently completed
twelve month period was [pound sterling-] and therefore EBITDA
was [pound sterling-]
(f) EBITDA (on an annualised basis) for Subsidiaries acquired
during the most recent twelve month period was [pound
sterling-], EBITDA (on an annualised basis) for Subsidiaries
disposed of during the most recent twelve month period was
[pound sterling-] and therefore Adjusted EBITDA for the most
recently completed twelve month period was [pound sterling-];
Earnings denominated in currencies other than Sterling were
translated in accordance with paragraph (g) below
(g) The exchange rates on the Test Date for the purpose of
Adjusted EBITDA were -
(h) Borrowings at the Test Date were [pound sterling-]
(i) Cash and Cash Equivalents at the Test Date was [pound
sterling-]
(j) Excluded Cash at the Test Date was [pound sterling-]
(k) Net Borrowings at the Test Date were [pound sterling-]
(l) Interest Payable for the most recently completed twelve month
period was [pound sterling-]
(m) Interest Receivable for the most recently completed twelve
month period was [pound sterling-]
(n) Net Interest Payable for the most recently completed twelve
month period was [pound sterling-]
(o) A reconciliation between the profit before interest and tax
figure in the relevant accounts and PBIT is attached
(p) A reconciliation between the profit before interest and tax
figure in the relevant accounts and EBITDA is attached
(q) The amount of Indebtedness referred to in paragraph (iv) of
the definition of "BORROWINGS" is [pound sterling-].
2 RATIOS
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99
------------------------------------------------------------------------------
(i) CURRENT PERIOD (ii) PREVIOUS PERIOD
------------------------------------------------------------------------------
Covenant Actual Covenant Actual
------------------------------------------------------------------------------
PBIT to Net Interest Payable
(Clause 19.6.1)
------------------------------------------------------------------------------
Net Borrowings to Adjusted
EBITDA (Clause 19.6.2)
------------------------------------------------------------------------------
Net Borrowings to Adjusted
EBITDA (Applicable Margin)
------------------------------------------------------------------------------
Signed:_______________________________
Director
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SCHEDULE 12
FORM OF ESCROW LETTER
[On the letterhead of ING Barings/Lloyds Bank]
Misys plc
ββββββββ βββββ
ββββββ βββ
βββββββ ββββββ
ββββββββββββββ
ββββ βββ
and
[Paying Agent]
(the "PAYING AGENT")
- 1997
Dear Sirs
We refer to the Credit Agreement (the "AGREEMENT") dated 5 September
1997 between Misys plc (the "BORROWER"), Baring Brothers Limited
(trading as ING Barings) and Lloyds Bank Plc (trading as Lloyds Bank
Capital Markets) as Arrangers, Lloyds Bank Plc as Agent and ING Bank
N.V., London Branch and Lloyds Bank Plc (the "BANKS").
For the purpose of this letter the "EFFECTIVE TIME" means the time of
filing the Articles of Merger referred to in [-] with the Secretary of
State of North Carolina in accordance with the North Carolina Business
Corporation Act as notified to you by [-].
1 The Borrower agrees that it will drawdown funds under the Agreement
amounting to U.S.$[-] (the "FUNDS") on the date the Effective Time is
expected to occur (the "RELEVANT DATE") but prior to the occurrence of
the Effective Time and that these will be paid to the Paying Agent at
[account details].
2 The Paying Agent agrees that:
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101
(a) upon receipt it will hold the Funds in a separate designated
account;
(b) if the Effective Time occurs before 12 noon (New York City
time) on the business day following the Relevant Date, the
Funds will be held to the Borrower's order; and
(c) if the Effective Time does not occur by 12 noon (New York City
time) on the business day following the Relevant Date, the
Funds will be held to the Banks' order and paid on such
business day to:
[Lloyds Bank Plc]
[account details]
Please indicate your acceptance by countersigning the enclosed copy of
this letter.
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102
Yours faithfully
ING BANK N.V., LONDON BRANCH LLOYDS BANK PLC
By: By:
Agreed:
Misys plc
By:
Date:
Agreed:
[Paying Agent]
By:
Date:
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103
SCHEDULE 13
SINGLE EUROPEAN CURRENCY
1 EMU DEFINITIONS: FOR THE PURPOSES OF THIS SCHEDULE AND CLAUSE 29.3:
"COMMENCEMENT DATE" means the date of commencement of the third stage
of EMU (currently expected to be 1 January 1999) or on which
circumstances arise which (in the opinion of the Agent) have
substantially the same effect and result in substantially the same
consequences as commencement of the third stage of EMU as contemplated
by the Treaty on European Union
"EMU" means Economic and Monetary Union as contemplated by the Treaty
on European Union.
"EMU LEGISLATION" means legislative measures of the Council of the
European Union for the introduction of, changeover to or operation of a
single or unified European currency (whether or not known as the euro),
being in part the implementation of the third stage of EMU
"EURO" means the single currency of participating member states to be
introduced on the Commencement Date
"EURO UNIT" means the currency unit of the euro as defined in the EMU
legislation
"NATIONAL CURRENCY UNIT" means the unit of currency (other than the
euro unit) of a participating member state
"PARTICIPATING MEMBER STATE" means each state so described in any EMU
legislation and
"TREATY ON EUROPEAN UNION" means the Treaty of Rome of 25 March 1957,
as amended by the Single ββββββββ βββ ββββ and the Maastricht Treaty of
7 February 1992.
2 Redenomination: Each obligation under this Agreement denominated in a
national currency unit shall be redenominated into the euro unit in
accordance with EMU legislation.
3 Advances: Any new Advance in the currency of a participating member
state shall be denominated in the euro unit. For the avoidance of
doubt, the Borrower may continue to request Advances to be made in
national currency units until such time as such currencies cease to be
freely available in the London inter-bank market.
4 Business Days: In relation to any amount denominated or to be
denominated in the euro unit or a national currency unit, any reference
to a Business Day shall be construed as a reference to a day (other
than a Saturday or Sunday) on which:
(i) such clearing or settlement system as the Agent may from time
to time nominate for the purpose of clearing or settling
payments in euro under
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this Agreement is operating and
(ii) banks are open for business generally (including dealings in
foreign exchange and foreign currency deposits) in the euro
unit in London and on which the Trans-European Automated
Real-time Gross Express Transfer system (TARGET) is operating.
5 Rate Fixing Days: In relation to any period for which an interest rate
is to be determined under this Agreement in respect of an amount
denominated or to be denominated in the euro unit or a national
currency unit, "RATE FIXING DAY" means the day on which quotations
would ordinarily be provided in the London inter-bank market for
deposits in the relevant unit for delivery on the first day of that
period. If for any such period quotations would ordinarily be provided
on more than one day, the Rate Fixing Day for that period shall be
whichever of those days is from time nominated by the Agent after
consultation with the Borrower if reasonably practicable and (having
regard to any convention or practice in the London inter-bank market).
6 Basis of Calculation: In relation to the currency of any state which
becomes a participating member state, if the basis of calculation of
interest or commitment fee specified in this Agreement (the "SPECIFIED
BASIS") is determined by the Agent (acting reasonably) to be
inconsistent with any convention or practice in the London inter-bank
market for the calculation of interest or, as the case may be, that fee
in respect of the euro, the specified basis shall be replaced by that
convention or practice (as determined by the Agent (acting reasonably))
with effect from the date on which that state becomes a participating
member state. However, if any Advance is outstanding in the currency of
that state immediately prior to that date, such replacement shall only
take effect in relation to that Advance in respect of any period after
its then current Interest Period.
7 Place of Payment: In relation to a payment in the euro unit or a
national currency unit, the "PLACE OF PAYMENT" shall be such financial
centre in such participating member state (or in London) as the Agent
(acting reasonably) shall from time to time nominate for this purpose.
8 Payments by the Agent to the Banks: Any amount payable by the Agent to
any Bank under this Agreement in the currency of a participating member
state shall be paid in the euro unit to such account with such bank in
the Place of Payment as that Bank shall from time to time nominate for
this purpose.
9 Payments System and the Agent: In relation to any payment by the Agent
in the euro unit (whether it has received or expects to receive payment
in the euro unit or a national currency unit), the Agent shall not be
liable to any Obligor or any Bank for any delay, or the consequences of
any delay, in the crediting to any account of any amount required by
this Agreement to be paid by the Agent if the Agent shall have taken
all relevant steps to achieve, on the date required by this Agreement,
the payment of that amount in immediately available, freely
transferable, cleared funds in the euro unit to the account with such
bank in the Place of Payment as the relevant Obligor or Bank shall have
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nominated for this purpose. In this paragraph 9, "ALL RELEVANT STEPS"
means all such steps as may be prescribed from time to time by the
regulations or operating procedures of such clearing or settlement
system as the Agent may from time to time nominate for the purpose of
clearing or settling payments in euro under this Agreement.
10 Rounding and other Consequential Changes: Without prejudice and in
addition to any method of conversion or rounding prescribed by any EMU
legislation:
(i) each reference in this Agreement to a minimum amount (or an
integral multiple of any amount) in a national currency unit
to be paid to or by the Agent (including in relation to the
amount of an Advance, a cancellation or a prepayment) shall be
replaced by a reference to such reasonably comparable and
convenient amount in the euro unit as the Agent may from time
to time specify and
(ii) save as expressly provided in this Schedule, this Agreement
(including the timetables in Schedule 7 shall be subject to
such changes as the Agent may from time to time specify to be
necessary to reflect the introduction of, changeover to or
operation of the euro in any participating member state and/or
to reflect any convention or practice in the London inter-bank
market,
but nothing in this paragraph 10, nor any change pursuant to paragraph
10(ii), shall reduce or increase any actual or contingent liability of
any party under this Agreement.
11 Increased Costs: The Borrower shall from time to time on demand
(whenever made) pay to the Agent for its own account or, as the case
may be, for the account of the Arranger or the relevant Bank the amount
certified by it to be necessary to indemnify it against any cost,
reduction, payment or forgone interest or other return which:
(i) is of a type referred to in Clause 13.1.1, 13.1.2 or 13.1.3
(Increased Costs Indemnity) and
(ii) results from the introduction of, changeover to or operation
of the euro in any participating member state
except as provided in Clause 13.2 (Exceptions) and except to the extent
that it is compensated for by Mandatory Costs.
12 EMU Legislation: Despite paragraphs 2 (Redenomination) and 8 (Payments
by the Agent to the
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Banks), if and to the extent that any EMU legislation provides that an
amount which is:
(i) denominated either in the euro unit or in the national
currency unit of a participating member state and
(ii) payable within that participating member state by crediting an
account of the creditor
can be paid by the debtor either in the euro unit or in that national
currency unit, any party to this Agreement due to make such a payment
may pay any such amount either in the euro unit or in that national
currency unit.
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SCHEDULE 14
FORM OF CERTIFICATE RELATING TO ACQUISITIONS
To: Lloyds Bank Plc
(as Agent for the banks
participating in the Credit Agreement
referred to below)
Certificate[Date]
I refer to the agreement (as from time to time amended, varied,
restated or supplemented (the "CREDIT AGREEMENT") dated 5 September
1997 and made between Misys plc (the "BORROWER") as borrower, Baring
Brothers Limited (trading as ING Barings) and Lloyds Bank Plc (trading
as Lloyds Bank Capital Markets) as arrangers, Lloyds Bank Plc as agent
and the financial institutions and banks referred as Banks therein.
Terms defined in the Credit Agreement shall have the same meaning
herein and references to Clauses are to Clauses in the Credit
Agreement.
I confirm that the requirements of Clause 19.7 of the Credit Agreement
will not be breached as a result of the acquisition(s) contemplated at
the date of this certificate
Signed:
..........................................
Director
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This Agreement has been entered into on the date stated at the
beginning.
MISYS PLC
as Borrower
ββββββββ βββββ
ββββββ βββ
βββββββ ββββββ
ββββββββββββββ
ββββ βββ
Fax No: βββββ ββββββ
Attention: Group Treasurer
BARING BROTHERS LIMITED
as Arranger
ββ ββββββ ββββ
ββββββ ββββ βββ
Fax No: ββββ βββ ββββ
Attention: Director, Acquisition Finance and Debt Advisory Group
LLOYDS BANK PLC
as Arranger
St George's House
ββ βββ βββ
β-β βββββββββ
ββββββ ββββ βββ
Fax No: ββββ βββ ββββ
Attention: Capital Markets Group
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109
LLOYDS BANK PLC
as Agent
Loans Administration ββββββββββ
ββββ βββββ
ββββ ββββββ
βββββββ
βββ βββ
Fax No: ββββ βββ ββββ
Telex No: 888301
Attention: Loans Administration
LLOYDS BANK PLC
as Overdraft Facility Bank
Loans Administration ββββββββββ
ββββ βββββ
ββββ ββββββ
βββββββ
βββ βββ
Fax No: ββββ βββ ββββ
Telex No: 888301
Attention: Loans Administration
THE REVOLVING CREDIT FACILITY BANKS
REVOLVING CREDIT FACILITY
COMMITMENT
ING Bank N.V., London Branch U.S.$46,271,186.43
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110
Lloyds Bank Plc U.S.$ 46,271,186.43
Bank of Montreal U.S.$ 33,050,847.47
Banque Paribas U.S.$ 26,440,677.96
Bayerische Landesbank U.S.$ 33,050,847.47
The Chase Manhattan Bank U.S.$ 26,440,677.96
COMMERZBANK AG U.S.$ 26,440,677.96
NATIONSBANK β.β. β.β.$ 26,440,677.96
NATIONAL WESTMINSTER BANK PLC U.S.$ 33,050,847.47
THE ROYAL BANK OF SCOTLAND U.S.$ 33,050,847.47
PLC
SCOTIABANK EUROPE PLC U.S.$ 33,050,847.47
WACHOVIA BANK, β.β. β.β.$ 26,440,677.96
------- -------------------
Totals U.S.$390,000,000
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SCHEDULE 4
GUARANTORS
Kindle Banking Systems Ltd
Midas Kapiti International Limited
Misys Financial Systems Limited
Kapiti Limited
Midas Kapiti International PTE Limited
ACT Financial Systems Limited
Midas Kapiti International SA
Countrywide Insurance Marketing Limited
Midas Kapiti Germany GmbH
Midas Kapiti International Ltd
Quotient SA
The Frustrum Group Inc.
Medic Computer Systems Inc.
Midas Kapiti International Pty Limited
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112
This Agreement has been entered into on the date stated at the
beginning.
THE BORROWER
MISYS PLC
ββββββββ βββββ
ββββββ βββ
βββββββ ββββββ
ββββββββββββββ ββββ βββ
Fax No: 01386 871 045
Attention: Group Treasurer
By: β. βββββ
The Guarantors
KINDLE BANKING SYSTEMS LTD
By: β. βββββ
MIDAS KAPITI INTERNATIONAL LIMITED
By: β. βββββ
MISYS FINANCIAL SYSTEMS LIMITED
By: β. βββββ
KAPITI LIMITED
By: β. βββββ
MIDAS KAPITI INTERNATIONAL PTE LIMITED
By: β. βββββ
ACT FINANCIAL SYSTEMS LIMITED
By: β. βββββ
MIDAS KAPITI INTERNATIONAL SA
By: β. βββββ
COUNTRYWIDE INSURANCE MARKETING
LIMITED
By: β. βββββ
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113
MIDAS KAPITI GERMANY GMBH
By: β. βββββ
MIDAS KAPITI INTERNATIONAL LTD
By: β. βββββ
QUOTIENT SA
By: β. βββββ
THE FRUSTRUM GROUP INC.
By: β. βββββ
MEDIC COMPUTER SYSTEMS INC.
By: β. βββββ
MIDAS KAPITI INTERNATIONAL PTY LIMITED
By: β. βββββ
The Arrangers
BARING BROTHERS LIMITED
ββ ββββββ ββββ
ββββββ ββββ βββ
Fax No: 0171 767 7071
Attention: Director, Acquisition Finance
By: βββββ ββββ
LLOYDS BANK PLC CAPITAL MARKETS
St George's House
ββ βββ βββ
β-β βββββββββ
ββββββ ββββ βββ
Fax No: 0171 661 4677
Attention: Capital Markets Group
By: M.J.E. DUTFIELD
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114
THE ACQUISITION FACILITY BANKS AND THE REVOLVING
CREDIT FACILITY BANKS
ING BANK N.V., LONDON BRANCH
By: βββββ ββββ
LLOYDS BANK PLC
By: M.J.E. DUTFIELD
BANK OF MONTREAL
By: ββββ βββββββ
BANQUE PARIBAS
By: M.J.E. DUTFIELD
BAYERISCHE LANDESBANK
By: M.J.E. DUTFIELD
THE CHASE MANHATTAN BANK
By: βββββββ ββββββ
COMMERZBANK AG
By: ββββββββ ββββββββ
BERND MEIST
NATIONSBANK N.A.
By: β. ββββ
NATIONAL WESTMINSTER BANK PLC
By: M.J.E. DUTFIELD
THE ROYAL BANK OF SCOTLAND PLC
By: J.H.M. HARE
SCOTIABANK EUROPE PLC
By: β. βββββββ
WACHOVIA BANK, N.A.
By: M.J.E. DUTFIELD
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115
THE OVERDRAFT FACILITY BANK
LLOYDS BANK PLC
Loans Administration Department
Commercial Banking,
Corporate Office,
Victoria Square House
Birmingham
Fax No: 0121 625 3607
Attention: ββββ βββββ
By: M.J.E. DUTFIELD
The Agent
LLOYDS BANK PLC CAPITAL MARKETS
Loans Administration ββββββββββ
ββββ βββββ
ββββ ββββββ
βββββββ βββ βββ
Fax No: 0117 923 3317
Attention: Loans Administration
By: M.J.E. DUTFIELD
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116
CREDIT AGREEMENT
dated 5 September 1997
(as amended by the Supplemental Credit Agreement
dated 24 November 1997 and the Second Supplemental Credit
Agreement dated 19 June 1998)
as further amended and restated on - 1998
MISYS PLC
as Borrower
ING BARINGS
LLOYDS BANK CAPITAL MARKETS
as Arrangers
THE BANKS AND FINANCIAL INSTITUTIONS
NAMED HEREIN
LLOYDS BANK PLC
as Overdraft Facility Bank
LLOYDS BANK CAPITAL MARKETS
as Agent
Ref: JMS/JLM
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117
TABLE OF CONTENTS
1 Interpretation 10
2 The Facilities 22
3 Conditions Precedent 23
4 Drawdown of Revolving Credit Facility 23
5 Overdraft Facility 24
6 Repayment and Prepayment 25
7 Cancellation 26
8 Interest 26
9 Multicurrency Option 27
10 Fees 28
11 Taxes 28
12 Illegality 29
13 Increased Costs 30
14 Change in Market Conditions 31
15 Mitigation 31
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118
16 Payments 32
17 Representations and Warranties 33
18 Information 38
19 Undertakings 39
20 Default 44
21 Default Interest 47
22 Indemnities 48
23 Guarantee 49
24 The Agent 51
25 Set-Off/Pro Rata Sharing 55
26 Expenses and Stamp Duty 56
27 Calculations and Evidence 56
28 Novation 57
29 Remedies, Waivers, Amendments and Consents 58
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119
30 Communications 59
31 Partial Invalidity 59
32 Nature of Rights and Obligations 59
33 Counterparts 60
34 Governing Law and Jurisdiction 60
SCHEDULE 1
Information Package 62
SCHEDULE 2
Mandatory Costs 63
SCHEDULE 3
Novation Notice 65
SCHEDULE 4
Notice requesting Advance 67
SCHEDULE 5
Principal Subsidiaries 68
SCHEDULE 6
Borrower's Confirmation of Unconditionality 69
SCHEDULE 7
Timetables 70
SCHEDULE 8A
Form of Guarantor Accession Deed 72
SCHEDULE 8B
Form of Guarantor Accession Deed (French Guarantor) 73
SCHEDULE 8C
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120
Form of Guarantor Accession Deed (German Guarantor) 74
SCHEDULE 9
Documents to Accompany Form of Guarantor Accession Deed 75
SCHEDULE 10
Form of Linklaters & Paines Opinion 76
SCHEDULE 11
Form of Compliance Certificate 79
SCHEDULE 12
Form of Escrow Letter 81
SCHEDULE 13
Single European Currency 83
SCHEDULE 14
Form of Certificate relating to acquisitions 86
119