Exhibit 4.16
2
DATED 21 January
2003
(1) EBOOKERS PLC (as the
Principal Borrower)
- and -
(2) BARCLAYS BANK PLC
(as Bank)
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FACILITIES AGREEMENT
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CONTENTS
1. DEFINITIONS AND INTERPRETATION............................................................................1
2. THE FACILITIES............................................................................................1
3. PURPOSE...................................................................................................1
4. CONDITIONS OF UTILISATION.................................................................................2
5. CONDITIONS SUBSEQUENT.....................................................................................3
6. UTILISATION...............................................................................................4
7. REPAYMENT.................................................................................................7
8. PREPAYMENT AND CANCELLATION...............................................................................8
9. INTEREST.................................................................................................10
10. INTEREST PERIODS.........................................................................................13
11. ALTERNATIVE INTEREST RATES...............................................................................13
12. FEES14
13. TAX GROSS-UP AND INDEMNITIES.............................................................................15
14. INCREASED COST...........................................................................................16
15. OTHER INDEMNITIES........................................................................................18
16. COSTS AND EXPENSES.......................................................................................19
17. REPRESENTATIONS..........................................................................................19
18. INFORMATION UNDERTAKINGS.................................................................................20
19. FINANCIAL CONDITION......................................................................................24
20. NEGATIVE UNDERTAKINGS....................................................................................29
21. POSITIVE OBLIGATIONS.....................................................................................34
22. EVENTS OF DEFAULT........................................................................................41
23. CHANGES TO THE OBLIGORS..................................................................................42
24. ASSIGNMENT AND TRANSFER..................................................................................43
25. PAYMENT MECHANICS........................................................................................43
26. SET-OFF..................................................................................................45
27. NOTICES..................................................................................................45
28. CALCULATIONS AND CERTIFICATES............................................................................46
29. PARTIAL INVALIDITY.......................................................................................47
30. REMEDIES AND WAIVERS.....................................................................................47
31. COUNTERPARTS.............................................................................................47
32. GOVERNING LAW............................................................................................47
33. ENFORCEMENT..............................................................................................47
34. THIRD PARTY RIGHTS.......................................................................................48
35. CONFLICT.................................................................................................48
SCHEDULE 1...................................................................................................49
Conditions precedent.....................................................................................49
Part 1...................................................................................................49
Conditions precedent to Exchange.........................................................................49
Part 2...................................................................................................51
Conditions Precedent to Completion.......................................................................51
SCHEDULE 2...................................................................................................54
Requests.................................................................................................54
Part 1...................................................................................................54
Utilisation Request......................................................................................54
Part 2...................................................................................................56
Selection Notice applicable to Loans.....................................................................56
SCHEDULE 3...................................................................................................57
Mandatory Cost formulae..................................................................................57
SCHEDULE 4...................................................................................................59
Form of Accession Letter.................................................................................59
SCHEDULE 5...................................................................................................60
Form of Compliance Certificate...........................................................................60
schedule 6...................................................................................................61
Group Structure..........................................................................................61
SCHEDULE 7...................................................................................................63
Definitions and Interpretations..........................................................................63
SCHEDULE 8...................................................................................................79
Representations and Warranties...........................................................................79
SCHEDULE 9...................................................................................................84
Events of Default........................................................................................84
SCHEDULE 10..................................................................................................88
Permitted Bonds..........................................................................................88
SCHEDULE 11..................................................................................................89
Permitted Bank Accounts..................................................................................89
THIS AGREEMENT is made on 21 January 2003
BETWEEN
(1) EBOOKERS PLC (the "Principal Borrower"); and
(2) BARCLAYS BANK PLC (the "Bank").
IT IS AGREED as follows:
4. DEFINITIONS AND INTERPRETATION
In this Agreement certain words and expressions shall have application as
defined in schedule 7 hereto.
5. THE FACILITIES
5.1 The Facilities
Subject to the terms of this Agreement the Bank agrees to make
available to the Principal Borrower:
5.1.1 the Revolving Credit Facility A;
5.1.2 the Term Loan Facility B,
and the Bank agrees to make available to the Borrowers the Guarantee
Facility C.
6. PURPOSE
6.1 Purpose
6.1.1 The Principal Borrower shall apply all amounts borrowed by it
under Revolving Credit Facility A and the Term Loan Facility B
towards:
(i) refinancing the consideration payable by the Principal
Borrower in respect of the Acquisition and costs and
expenses incurred in connection thereto; and
(ii) discharging a portion of the existing Financial Indebtedness
of the Target Group incurred prior to the Completion Date
(and as further described in the Funds Flow Statement).
6.1.2 The Borrowers shall utilise the Guarantee Facility C solely for
the bond and guarantee requirements of the Group.
6.1.3 Each Borrower undertakes that none of the Facilities shall be
used in any way which would be illegal under, or would cause the
invalidity or unenforceability in whole or in part of any Finance
Document under any applicable law (including, without limitation,
section 151 of the Act).
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7. CONDITIONS OF UTILISATION
7.1 Initial conditions precedent
The obligations of the Bank shall not become effective until
the Bank shall first have received (or waived in writing the
requirement to receive), in form and substance to it, all of
the documents and other evidence listed in part 1 of schedule
1 (Conditions Precedent to be satisfied before Exchange). The
Bank shall promptly notify the Principal Borrower upon being
so satisfied.
7.2 Further conditions precedent
7.2.1 The obligations of the Bank to make any Advance or to
permit any other Utilisation of the Facilities are subject
to the further conditions precedent that on the date of the
Utilisation Request and on the proposed Utilisation Date:
(a) the Bank shall have first received (or waived in
writing the requirement to receive) in form and
substance satisfactory to it, all of the documents and
other evidence listed in part 2 of schedule 1; and
(b) in respect of the Utilisation of the Revolving Credit
Facility A, the Term Loan Facility B and the Guarantee
Facility C made on the Completion Date and to enable
Completion to occur, no Keystone Event of Default is
continuing or would result from the proposed
Utilisation;
(c) in respect of any proposed Utilisation of the Guarantee
Facility C, the Bank being satisfied with the terms and
conditions of any Bank Guarantee;
(d) in respect of any proposed Utilisation of any Facility
other than the Utilisation of the Revolving Credit
Facility A, the Term Loan Facility B and the Guarantee
Facility C made on the Completion Date and other than a
Rollover Loan:
(i) no Default is continuing or would result from the
proposed Utilisation; and
(ii) the Repeating Representations to be made by each
Obligor are true in all respects.
7.3 Lapse
If the conditions precedent referred to in clauses 7.1 and
7.2.17.2.1(a) above have not been satisfied on or before
3.00pm on the date which is 40 days after the Exchange Date,
then unless otherwise agreed in writing between the Bank and
the Principal Borrower:
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7.3.1 the Principal Borrower shall pay on demand to the Bank all
reasonable costs and proper expenses incurred by the Bank and
agreed by the Principal Borrower in connection with the Finance
Documents prior to such date; and
7.3.2 save as referred to in clause 7.3.1 and save for any outstanding
liability under clause 15.1.1 all other terms of this Agreement
shall lapse and be of no further force and effect and the parties
shall be under no further obligation to each other in respect of
this Agreement.
7.4 Keystone Event of Default
Until Completion has occurred, notwithstanding any Default
occurring and notwithstanding any provision in any Finance
Document to the contrary the Bank shall only be entitled to
refuse to make the Revolving Credit Facility A, the Term Loan
Facility B and Guarantee Facility C available if the
conditions of clauses 7.1 and 7.2.17.2.1(a) and 7.2.17.2.1(b)
have not been satisfied or the provisions of clause 7.3 apply.
8. CONDITIONS SUBSEQUENT
8.1 Registration of share transfers
The Principal Borrower shall do, and shall procure to be done,
after the Completion Date all and any acts and things
necessary to ensure that:
8.1.1 the stamp duty payable on the transfer(s) of the Target
Shares (if any), is duly paid;
8.1.2 the transfer(s) referred to in clause 8.1.1 are, as soon as
possible after the Completion Date, registered in the name
of the Principal Borrower; and
8.1.3 new share certificate(s) in respect of such shareholding(s)
are issued in the name of the Principal Borrower and,
thereafter, delivered to the Bank to be held as security
pursuant to the Guarantee and Share Pledge.
8.2 Overseas Share Pledges and Guarantees
The Principal Borrower shall procure that as soon as
practicable following the Completion Date and in any event
within one month of the Completion Date:
8.2.1 the Bank has received a first ranking share pledge over the
entire issued share capital of each of La Compaigne Des Voyages
SA, Oy ebookers Finland Limited, Airways MIC AB, Reisbureau Nova
BV and Mr Jet AB together with a legal opinion in respect
thereof. Such share pledges shall be based on the law of the
country in which such company is incorporated, be in form and
substance satisfactory to the Bank (acting reasonably) and impose
obligations no more onerous than those set out in the Share
Pledges (unless the Bank receives legal advice that additional
obligations are necessary to enable it to have a valid, binding
and first ranking share pledge under the relevant local law);
3
8.2.2 each Group Company in Schedule 6 which is not a Dormant Group
Company or already party to the Guarantee or incorporated in
India or Mauritius shall have executed and delivered to the Bank
a Deed of Accession (Guarantee) (together with a legal opinion in
respect thereof where such Group Company is La Compaigne Des
Voyages SA, Oy ebookers Finland Limited, Airways MIC AB,
Reisbureau Nova BV and Mr Jet AB).
The accompanying legal opinions shall be in form and substance
satisfactory to the Bank (acting reasonably) and from a law
firm satisfactory to the Bank (acting reasonably).
8.3 Insurance Recommendations
The Principal Borrower shall procure that as soon as
practicable following the Completion Date and in any event
within two months of the Completion Date, the Group has
implemented all the material recommendations and suggestions
made in the Insurance Report regarding improvements to the
Group's insurance cover. The Principal Borrower shall keep the
Bank informed of the progress of such implementation promptly
following request from the Bank.
8.4 Action Plan
The Principal Borrower shall supply to the Bank within one
month of the Completion Date, its written plan for integration
of the Target Group into the Group.
8.5 Data Protection Act
The Principal Borrower shall procure that as soon as
practicable following the Completion Date and in any event
within 30 days of the Completion Date, Bridge the World Travel
Service Limited is registered under the Data Protection Xxx
0000.
9. UTILISATION
9.1 Delivery of a Utilisation Request
A Borrower may utilise any Facility by delivery to the Bank of
a duly completed Utilisation Request not later than the
11.00am on the Business Day of the proposed utilisation of the
Facility.
9.2 Completion of a Utilisation Request
9.2.1 Each Utilisation Request is irrevocable and will not be regarded
as having been duly completed unless:
9.2.1.1 it identifies the Facility to be utilised;
9.2.1.2 the proposed Utilisation Date is a Business Day within
the Commitment Period applicable to that Facility;
9.2.1.3 the amount of the Utilisation complies with clause 9.3
(Currency and amount);
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9.2.1.4 the proposed Interest Period complies with clause 13
(Interest Periods).
9.2.2 Subject to clause 9.2.3 only one Loan or Bank Guarantee may be
requested in each Utilisation Request.
9.2.3 On the date of first Utilisation of the Term Loan Facility B,
the Principal Borrower shall be deemed to have issued a
Utilisation Request in respect of, and made a Utilisation of, the
Guarantee Facility C such that all Existing Barclays Facilities
which consist of guarantees, bonds and securities issued by the
Bank will, from such date, be treated as having been issued under
the Guarantee Facility C and any terms or provisions relating to
their issue previously agreed between the Bank and the relevant
Group Company shall terminate (save for any rights or obligations
of the parties in relation to such guarantees, bonds and sureties
which accrued or arose prior to the date of first utilisation of
the Term Loan Facility B, which rights and obligations shall
continue in full force and effect). This provision shall not
affect the rights or obligations of the Bank or any Group Company
to any person to whom the relevant guarantee, bond or surety was
issued under the Existing Barclays Facilities.
9.3 Currency and amount
9.3.1 The currency specified in a Utilisation Request must be in
Sterling.
9.3.2 The amount of the proposed Utilisation must not exceed the
Available Facility for the proposed Utilisation.
9.3.3 No more than ten utilisations of the Revolving Credit Facility A
may be outstanding at any one time and each utilisation must be
in a minimum amount of (pound)250,000 (or if greater, an integral
multiple of (pound)50,000).
9.3.4 The Term Loan Facility B may only be drawndown once and in a
minimum amount of(pound)1,000,000.
9.4 Counter-Indemnity from the Obligors
9.4.1 Each of the Obligors unconditionally and irrevocably agrees and
undertakes to the Bank that:
(i) it will pay to each of the Bank forthwith on demand, an
amount in Sterling equal to all payments demanded, made,
suffered or incurred by the Bank (whether by direct payment
or by way of set-off counterclaim or otherwise) under or in
respect of each Bank Guarantee; and
(ii) it will at all times reimburse and indemnify, the Bank, and
notwithstanding the insufficiency, illegality or
unenforceability of any Bank Guarantee or the Guarantee
Facility C from and against all actions, proceedings,
claims, liabilities, damages, losses, costs, charges and
expenses whatsoever in relation to or arising out of each
Bank Guarantee.
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9.4.2 Notification
The Principal Borrower will as soon as practicable
inform the Bank of all facts or circumstances of
which it is or becomes aware which are reasonably
likely to result in any demand being made on the Bank
under any Bank Guarantee.
9.4.3 No Obligation to make Enquiry on Payment
Provided that the demand has been made, or is
purported to be made, in accordance with the terms of
the relevant Bank Guarantee, the Bank shall at all
times be entitled to make any payment under the
relevant Bank Guarantee for which a demand or claim
has been made without any further investigation or
enquiry and need not concern itself with the
propriety of any demand or claim made under and in
the manner required by the terms of the Bank
Guarantee and any beneficiary of the relevant Bank
Guarantee shall be entitled to make demands or
receive payments thereunder accordingly. It shall not
be a defence to any demand or claim made of an
Obligor, nor shall any Obligor's obligations
hereunder be impaired by the fact (if it be the
case), that the Bank was or might have been justified
(in the absence of wilful default or gross negligence
by the Bank) in refusing payment, in whole or in
part, of the amounts so demanded or claimed.
9.4.4 Certificate
A certificate of the Bank as to the amount paid out
by or of any liability of the Bank under any Bank
Guarantee shall, save for manifest error, be binding
upon the Obligors for the purposes of this Agreement
and be prima facie evidence of such liability or the
payment of such amounts in any legal action or
proceedings arising in connection herewith.
9.4.5 Continuing Obligations
9.4.5.1 The obligations and liability of the Obligors under this
clause 9.4 shall not be affected or impaired by:
(i) any waiver or time or indulgence granted to or by the Bank;
(ii) any release or dealings with any rights or Security of the
Bank;
(iii) any invalidity of any Bank Guarantee and the Guarantee
Facility C;
(iv) any variation or extension of any Bank Guarantee or the
Guarantee Facility C; or
(v) any other circumstances which might but for this provision
affect or impair or exonerate or discharge the Obligors from
such obligations or liability.
9.4.5.2 The indemnity contained in this clause 9.4 shall constitute
and be a continuing security to the Bank and shall be in addition
to, and shall not prejudice or be prejudiced by, any other
Security, guarantee, indemnity, lien or other right of the Bank.
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10. REPAYMENT
10.1 Repayment of the Revolving Loan
The Principal Borrower shall ensure that each Revolving Credit
Advance shall be repaid in full at the end of its Interest
Period (but such Revolving Credit Advance may be repaid by a
Rollover Loan) and that the Revolving Loan is repaid in full
on the Termination Date relating thereto. For the avoidance of
doubt subject to the other terms of this Agreement any amount
repaid under the Revolving Credit Facility A before the expiry
of the Commitment Period for the Revolving Credit Facility A
may be redrawn.
10.2 Repayment of Term Loan B
10.2.1 The Principal Borrower shall repay the Term Loan B in full in
the amounts and on the repayment dates set out below:
Term Loan Facility B Repayment Date Repayment Amounts
(pound)
31 July 2004 1,875,000
31 January 2005 1,875,000
31 July 2005 1,875,000
31 January 2006 1,875,000
31 July 2006 1,875,000
31 January 2007 1,875,000
31 July 2007 1,875,000
31 January 2008 1,875,000
TOTAL 15,000,000
10.2.2 The Principal Borrower may not reborrow any part of Term Loan
Facility B which is repaid.
10.3 Review of Guarantee Facility C
Each Bank Guarantee shall be reviewed by the Bank on each
anniversary of the date it was issued and on such date the
Bank shall be entitled:
10.3.1 if the relevant Borrower so requests, to continue to provide
such Bank Guarantee for a further period of 12 months; or
7
10.3.2 after giving not less than 20 Business Days prior notice to the
Principal Borrower (such notice to expire on such anniversary),
to cancel the Bank Guarantee (or if the Bank Guarantee continues
beyond such anniversary, to require cash cover in respect of the
Bank's ongoing liabilities (actual and contingent) under such
Bank Guarantee).
11. PREPAYMENT AND CANCELLATION
11.1 Mandatory prepayment
11.1.1 Change of Control, De-Listing or Sale
(a) If at any time there occurs any of the following:
(i) any person or group of persons Acting in Concert gains
Control of the Principal Borrower;
(ii) the shares of the Principal Borrower cease to be listed
on the official list of the London Stock Exchange plc
or trading in such shares is suspended for more than 5
Business Days (otherwise then pursuant to a suspension
affecting the whole of the market); or
(iii) a Sale;
(b) the Principal Borrower shall promptly notify the Bank upon
becoming aware of that event; and
(c) the Bank shall be entitled (within one month of that event
occurring or, if later, upon the Principal Borrower
informing the Bank pursuant to clause 11.1.1(b)) to
immediately cancel the Facilities and declare all
outstanding Utilisations, together with accrued interest,
and all other amounts accrued under the Finance Documents,
immediately due and payable, whereupon the Facilities will
be cancelled and all such outstanding amounts will become
immediately due and payable by the Borrowers.
11.1.2 Net Proceeds
(a) If no Event of Default is continuing at such time any Net
Proceeds under clause (ii) (b) of that definition as exceed,
in aggregate, the sum of (pound)500,000, received by a
member of the Group shall be:
(i) initially paid to the Net Proceeds Account; and
(ii) in the 6 month period following their deposit, (if
applicable) used to restore, replace or repair the
loss, destruction or damage which lead to the claim
being made and such insurance monies paid,
and if an Event of Default is continuing at
such time or any of such Net Proceeds are
not used for restoration, replacement or
repair within such 6 month period, such Net
Proceeds shall be applied in accordance with
clause 11.1.2(b) (and for the avoidance of
doubt if an Event of Default is continuing
at such time, the initial sum of
(pound)500,000 referred to above shall be
applied in accordance with clause 11.1.2(b)
and not merely the excess over
(pound)500,000).
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(b) Subject to clause 11.1.2(a), if any Net Proceeds are
received by any member of the Group, the Principal
Borrower, unless the Bank otherwise consents in
writing, shall apply, or shall procure that there shall
be applied, an amount equal to the Net Proceeds arising
from the relevant disposal or recovery in or towards
prepayment of outstanding Utilisations in accordance
with this clause 11, provided that the foregoing shall
not apply to Net Proceeds arising from any disposal
permitted under the terms of clauses 23.2.1 to 23.2.6
and 23.2.8.
11.2 Voluntary prepayment of Facilities
The Principal Borrower may, if it gives the Bank not less than
5 Business Days prior notice, prepay the whole or any part of
the Term Loan Facility B and Revolving Credit Facility A (but,
if in part, a minimum amount of (pound)250,000 or, if greater,
an integral multiple of (pound)50,000).
11.3 Prepayment Fee
If the Principal Borrower prepays any of the Facilities on or
prior to the first anniversary of first Utilisation from the
proceeds of a refinancing by any financial institution other
than the Bank then the Principal Borrower shall pay to the
Bank a prepayment fee equal to 1% of the amount prepaid.
11.4 Voluntary cancellation
The Principal Borrower may, if it gives the Bank not less than
5 Business Days prior notice, cancel the whole or any part
(but, if in part, a minimum of (pound)250,000 or, if greater,
an integral multiple of (pound)50,000) of an Available
Facility.
11.5 Application of prepayments
Unless otherwise stated in this Agreement or otherwise agreed, all
prepayments shall be applied:
11.5.1 first, pro rata against the Scheduled Repayments;
11.5.2 second, once the Term Loan Facility B has been repaid in full
against the Revolving Loans (and the Revolving Credit Facility A
shall be cancelled by an equivalent amount to such prepayment);
and
11.5.3 third, once the Revolving Loans have been repaid in full to
provide cash cover in respect of any Bank Guarantees.
11.6 Cancellation at end of Commitment Period
At the end of the Commitment Period for the Revolving Credit
Facility A an amount equivalent to the Available Revolving
Credit Facility A shall be automatically cancelled and in
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respect of the Term Loan Facility B after first drawdown of
the Term Loan Facility B an amount equal to the Available Term
Loan Facility B shall be automatically cancelled. Any
cancellation of the Term Loan Facility B shall reduce the
Scheduled Repayments on a pro rata basis.
11.7 Restrictions
11.7.1 Any notice of cancellation or prepayment given by any Party
under this clause 11 shall be irrevocable and, unless a contrary
indication appears in this Agreement, shall specify the date or
dates upon which the relevant cancellation or prepayment is to be
made and the amount of that cancellation or prepayment.
11.7.2 Any prepayment under this Agreement shall be made together with
accrued interest on the amount prepaid and, subject to any Break
Costs and subject to clause 11.3 (unless otherwise specified),
without premium or penalty.
11.7.3 The Principal Borrower shall not repay or prepay all or any
part of the Loans or cancel all or any part of the Facilities
except at the times and in the manner expressly provided for in
this Agreement.
11.7.4 No amount of the Facilities cancelled under this Agreement may
be subsequently reinstated.
11.8 The euro
If Sterling is, or is to be, replaced by euro, the Bank may
notify the Principal Borrower of any amendments to this
Agreement which the Bank (acting reasonably and after prior
consultation with the Principal Borrower) considers necessary
to reflect that replacement and to put each party in the same
position, so far as possible, that they would have been in, if
no such replacement had occurred. Upon delivery of any such
notification, this Agreement shall be deemed to be amended in
accordance with the terms thereof.
12. INTEREST
12.1 Calculation of interest
Subject to the terms of this Agreement, the rate of interest
on each Advance for each Interest Period is the percentage
rate per annum which is the aggregate of:
(a) the applicable Margin;
(b) LIBOR; and
(c) Mandatory Cost, if any.
12.2 Payment of interest
12.2.1 The Principal Borrower shall pay accrued interest on each
Advance on the last day of each Interest Period (and, if the
Interest Period is longer than six Months, on the dates
falling at six-monthly intervals after the first day of the
Interest Period).
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12.3 Default interest
12.3.1 If an Obligor fails to pay any amount payable by it under
a Finance Document on its due date, interest shall accrue on
the overdue amount from the due date up to the date of
actual payment (both before and after judgment) at a rate
which, subject to clause 12.3.2 below is 1 per cent higher
than the rate which would have been payable if the overdue
amount had, during the period of non-payment, constituted a
Loan in the currency of the overdue amount for successive
Interest Periods, each of a duration selected by the Bank
(acting reasonably). Any interest accruing under this clause
12.3 shall be immediately payable by the Obligor on demand
by the Bank.
12.3.2 If any overdue amount consists of all or part of a Loan
which became due on a day which was not the last day of an
Interest Period relating to that Loan:
(a) the first Interest Period for that overdue amount shall
have a duration equal to the unexpired portion of the
current Interest Period relating to that Loan; and
(b) the rate of interest applying to the overdue amount
during that first Interest Period shall be 1 per cent
higher than the rate which would have applied if the
overdue amount had not become due.
12.3.3 Default interest (if unpaid) arising on an overdue amount
will be compounded with the overdue amount at the end of
each Interest Period applicable to that overdue amount but
will remain immediately due and payable.
12.4 Reduction of Margin
The Margin (and references in clauses 12.4 to 12.7 of this
Agreement to the Margin shall mean the Margin for all the
Facilities) shall be 2.25% per annum, provided that, if after
receipt by the Bank of the Monthly Management Accounts for the
period to 30 June 2003 (or any subsequent Monthly Management
Accounts for periods ending on 30 June or 31 December
thereafter) evidence that all or any of the Margin Reduction
Targets set out below have been achieved as at the end of the
period in relation to which such Monthly Management Accounts
have been prepared:
Margin Reduction Target 1
EBIT is not less than(pound)3,500,000
Margin Reduction Targets 2
Senior Debt: EBIT ratio is 3.0:1; and
EBIT is not less than(pound)16,500,000
the Margin shall reduce as follows:
12.4.1 in the case of Margin Reduction Target 1 being achieved,
the Margin shall reduce to 1.75% per annum; and
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12.4.2 in the case of Margin Reduction Targets 2 being achieved
(and for the avoidance of doubt, both tests must be achieved
for a reduction to apply), the Margin shall reduce to 1.5%
per annum,
unless, in each case an Event of Default has occurred and is
continuing (which has not been waived by the Bank in writing).
12.5 Increase of Margin following non-achievement
12.5.1 Following any reduction in the Margin in accordance with the
provisions of clause 12.4, if any subsequent Monthly Management
Accounts ending on 30 June or 31 December in any ARP evidence
that the Margin Reduction Target (which had previously been
achieved, and which had resulted in a reduction in the Margin in
accordance with the provisions of clause 12.4) has not been
achieved as at the date of, and by reference to, such Monthly
Management Accounts then the Margin shall increase or decrease
(as the case may be) to the level which corresponds to the Margin
Reduction Target which has been achieved as at the date of, and
by reference to, such Monthly Management Accounts provided that,
if no Margin Reduction Target is achieved, the Margin shall be
2.25% per annum.
12.5.2 If the consolidated Audited Accounts for the Group indicate
that the relevant Margin reduction should not have been made at
any time, an additional charge for the relevant period of the
reduced Margin shall be payable by the Borrowers (as appropriate)
within five days after receipt by the Principal Borrower of
notice from the Bank (such notice to state the amount due, the
amount due to be in an aggregate amount equal to the interest
payments that would have been paid at the higher Margin less an
aggregate amount equal to the relevant interest payments actually
paid during the relevant period).
12.6 Increase in Margin on default
At any time following a reduction in the Margin pursuant to
the provisions of clause 12.4, the Margin shall, immediately
upon the occurrence of an Event of Default which is
continuing, and which has not been waived by the Bank in
writing, increase to 2.25% until such Event of Default has
been waived or remedied, whereupon the Margin shall
immediately reduce to the rate which prevailed immediately
before such Event of Default occurred or the rate determined
pursuant to the latest Monthly Management Accounts ending on
30 June or 31 December in any ARP pursuant to clause 12.4,
whichever is the most recent.
12.7 Timing of reduction, increase and restitution
Any decrease, increase or restitution of the Margin pursuant
to the provisions of clauses 12.4 and 12.5 shall take effect
from the beginning of the first Interest Period which
commences after the date on which the relevant accounts
evidence that the Margin Reduction Target has been, or as the
case may be, has not been achieved.
12.8 Basis of calculation
12.8.1 Interest shall be calculated on the number of days elapsed and
a year of 365 days.
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12.8.2 The financial covenants and the Monthly Management Accounts
used to determine whether or not a Margin Reduction Target has
been achieved shall be calculated in accordance with the
provisions of clause 22 (Financial Condition)
13. INTEREST PERIODS
13.1 Selection of Interest Periods
13.1.1 The Principal Borrower may select an Interest Period for a
Loan in the Utilisation Request for that Loan or (if the
Loan has already been borrowed) in a Selection Notice.
13.1.2 Each Selection Notice for a Loan is irrevocable and must
be delivered to the Bank by the Principal Borrower not later
than 11.00 am on the first day of the proposed Interest
Period.
13.1.3 If the Principal Borrower fails to deliver a Selection
Notice to the Bank in accordance with clause 13.1.2, the
relevant Interest Period will be one Month.
13.1.4 Subject to this clause 13, the Principal Borrower may
select an Interest Period of 1, 3 or 6 Months or any other
period agreed between the Principal Borrower and the Bank.
13.1.5 An Interest Period for a Loan shall not extend beyond the
Termination Date applicable to its Facility.
13.1.6 Each Interest Period for a Loan shall start on the
Utilisation Date or (if already made) on the last day of its
preceding Interest Period.
13.2 Non-Business Days
If an Interest Period would otherwise end on a day which is
not a Business Day, that Interest Period will instead end on
the next Business Day in that calendar Month (if there is one)
or the preceding Business Day (if there is not).
14. ALTERNATIVE INTEREST RATES
14.1 Notification to the Principal Borrower of market disruption
If, in relation to any Advance and any proposed Interest
Period, the Bank determines (which determination shall be
conclusive and binding on all parties hereto), that, by reason
of circumstances affecting the London inter-bank market
generally, adequate and fair means do not exist for
ascertaining LIBOR applicable to such Advance for the relevant
Interest Period, the Bank shall promptly give written notice
of such determination to the Principal Borrower.
14.2 Consequence of market disruption
If the Bank gives a notice under clause 14.1:
14.2.1 the Interest Period in respect of such Advance shall be 1
month;
13
14.2.2 the Bank and the Principal Borrower shall negotiate in good
faith with a view to agreeing a substitute basis for determining
the rate of interest applicable to such Advance; and
14.2.3 if such agreement is not reached within 14 days , then, during
such Interest Period, the rate of interest applicable to such
Advance shall be the rate per annum which is the aggregate sum of
(a) the Applicable Margin and (b) the rate per annum determined
by the Bank which fairly expresses the cost to the Bank of
funding such Advance from whatever sources it may reasonably
select (and which cost of funds may include a Mandatory Cost).
14.3 Right to Prepay
If any of the Borrowers becomes obliged pursuant to clause 14
(Alternative Interest Rates) to make any additional payments,
then, for so long as the circumstances giving rise to such
payment continue, the Borrowers may prepay and/or cash
collateralise in accordance with clause 11.2 (Voluntary
Prepayment of Facilities) the whole but not a part of the
Facilities together with all accrued interest and all other
sums payable hereunder for the account of the Bank. If such
prepayment of an Advance would fall on a day which is not the
last day of the Interest Period for such Advance, the
Principal Borrower may direct the Bank to hold such prepayment
in a suspense account with the Bank until the end of the
relevant Interest Period, whereupon the prepayment shall be
applied towards repayment of the relevant Advance.
14.4 Break Costs
Each Borrower shall, within three Business Days of demand by
the Bank (which demand shall specify the amount due and the
basis of its calculation), pay to the Bank its Break Costs
attributable to all or any part of a Loan or Unpaid Sum being
paid by that Borrower on a day other than the last day of an
Interest Period for that Loan or Unpaid Sum.
15. FEES
15.1 Facility fees
The Principal Borrower shall pay to the Bank:
15.1.1 a facility fee equal to 1.0% of the Revolving Credit Facility A
and the Term Loan Facility B, all to be payable to the Bank on
the date of this Agreement; and
15.1.2 a facility fee equal to 0.5% of the Revolving Credit Facility A
and the Term Loan Facilities to be payable to the Bank on the
Completion Date,
PROVIDED THAT if Completion does not occur by the end of the
Commitment Period for the Term Loan Facility B the Bank shall,
on request from the Principal Borrower, promptly reimburse
half of the fee received by it pursuant to clause 15.1.1 minus
the Bank's reasonable costs and expenses incurred up to the
end of such Commitment Period in connection with the Finance
Documents in accordance with clause 7.3.1 unless the reason
Completion did not occur was because the Resolutions were not
14
passed (in which event, for the avoidance of doubt, the Bank
shall be under no obligation to return any of the fee received
by it pursuant to clause 15.1.1).
15.2 Commitment fee
The Principal Borrower shall pay to the Bank a fee in Sterling
computed at the rate of fifty per cent (50%) per annum of the
applicable Margin on the Available Revolving Credit Facility
A, for the period from the date of this Agreement until the
earlier of the end of the relevant Commitment Period for such
Facility and the date such Facility has been utilised in full,
payable on the last day of each Quarterly Period in arrears.
15.3 Guarantee fee
The Principal Borrower shall pay to the Bank a fee in Sterling
computed at a rate per annum equal to the Margin for the
Guarantee Facility C in respect of the liability (both actual
and contingent) of the Bank under each outstanding Bank
Guarantee. Such fee shall be payable on the Bank's standard
quarterly accounting dates (as notified to the Principal
Borrower on request) in arrears following the date such Bank
Guarantee is issued until the Bank Guarantee has terminated
and the Bank no longer has any liability (both actual and
contingent) thereunder.
16. TAX GROSS-UP AND INDEMNITIES
16.1 Grossing up of payments
If any Borrower is compelled by law to withhold or deduct any
Taxes from any sum payable hereunder:
16.1.1 the sum so payable by such Borrower shall be increased so as to
result in the receipt by the Bank of a net amount equal to the
full amount expressed to be payable hereunder; and
16.1.2 such Borrower shall, as soon as reasonably practicable, deliver
to the Bank an original receipt (or a certified copy thereof)
evidencing the payment by such Borrower to the appropriate
authority of all amounts so required to be withheld or deducted,
provided that increased amounts shall only be payable by any
Borrower to the Bank under this clause 16.1 if and so long as
the Bank is, and continues to be, a Qualifying Bank.
16.2 Tax credit
If any Borrower pays any such additional amount as is referred
to in clause 16.1 in respect of any such deduction or
withholding and the Bank determines that it has received a
credit or refund for any Tax payable by it, or similar benefit
by reason of such deduction or withholding, the Bank will (to
the extent that it can do so without prejudice to the
retention of such credit or refund and to the extent that it
is not unlawful or contrary to any official directive for it
to do so) reimburse such Borrower with such amount (if any) as
the Bank determines (acting reasonably) will leave the Bank in
no better or worse position than it would have been in if such
Borrower had not been required to make such deduction or
withholding. The Bank shall have an absolute discretion as to
the order and manner in which it claims any credit or refund
available to it and, in no circumstances, shall the Bank be
obliged to disclose to any Borrower or to any other person any
information regarding its Tax affairs or Tax computations.
15
16.3 Repayment after grossing up
Without prejudice to the rights of the Bank under this clause
16.3, if at any time any Borrower is required to make any
payment pursuant to clause 16.1, for so long as the
circumstances giving rise to such payment continue, such
Borrower may, on giving the Bank not less than 5 Business
Days' irrevocable notice in writing:
16.3.1 cancel the liability of the Bank to continue its participation
in the Loans and the Facilities; and/or
16.3.2 prepay, without penalty or fee (including any Prepayment Fee),
the whole (but not part only) of the Facilities together in each
case with all accrued interest thereon and all other sums due and
payable hereunder (including, without limitation, any break
funding costs payable pursuant to clause 14) under the terms of
the Finance Documents.
16.4 Filings
If any Borrower or other Chargor is required by law (or would
in the absence of any appropriate filing be required) to make
a deduction or withholding for or on account of Taxes or any
other deduction contemplated by this clause 16, that Borrower
or other Chargor shall promptly file all forms and documents
which the appropriate Taxes authority may reasonably require
in order to enable that Borrower or other Chargor to make
relevant payments under the Finance Documents without having
to make that deduction or withholding.
17. INCREASED COST
17.1 Compensation for increased costs
If as a result of:
17.1.1 the enactment or making of or any change in any applicable law
or regulation (including, without limitation, any rule and
regulation of a recognised self -regulating organisation of which
the Bank is a member (as that term is defined in the Financial
Services and Markets Act 2000)), or directive, or in the
interpretation thereof by any governmental authority charged with
the administration of any such law, regulation or directive,
otherwise than a law, regulation or directive or the
interpretation thereof, in so far as, in each case, the same
relates to Taxes; or
17.1.2 compliance by the Bank with any request (whether or not having
the force of law, provided that, in the case of any request which
does not have the force of law, it is usual for the Bank to
comply with such request) of any central bank, or other
comparable governmental authority or agency, or the imposition or
modification of any reserve requirements applicable to the Bank,
16
including any requirement which affects the manner in which the
Bank allocates capital resources to its commitments, including
its commitments hereunder to provide the Loans (or any of them)
(other than any such requirement the cost of compliance with
which is recoverable under the Mandatory Costs at that time); or
17.1.3 the subjection of the Bank to any Tax in respect of making
available or continuing to make available the Facilities (or any
of them) or any change in the basis of Taxation of any payment
made, or to be made, to the Bank under this Agreement (except, in
each case, for Tax on the overall net income or profits of the
Bank),
which occurs or takes effect after the date hereof and as a
result thereof any of the following consequences occurs:
(a) the Bank incurs an additional cost as a result of its having
entered into any of the Finance Documents, or performing its
obligations thereunder, or as a result of maintaining the
availability of the Facilities (or any of them) and is not
compensated for in accordance with the terms of clause 13; or
(b) any sum received, or receivable, by the Bank under any of the
Finance Documents, or the effective return to it thereunder, is
reduced (except on account of Tax on its overall net income or
profit); or
(c) the Bank having by law to make any payment (except on account of
Tax on its overall net income or profits), or forego any interest
or return calculated by reference to any amount received or
receivable by it under the Finance Documents,
then each relevant Borrower shall indemnify the Bank on demand
against such the amount of such increased costs, reduction,
payment or foregone interest or other return (without
prejudice to the obligations of the Bank to mitigate its loss)
except where the Bank is compensated under clause 16 (Taxes)
or where such increased costs were caused by any breach by the
Bank of any law or regulation.
17.2 Repayment after increased cost
Without prejudice to the rights of the Bank under this clause
17.2, at any time after receipt of any such demand in
accordance with the provisions of clause 17.1, and so long as
the circumstances giving rise to such increased cost or
diminished return continue, each relevant Borrower may, upon
giving not less than five Business Days' irrevocable notice in
writing to the Bank, cancel the liability of the Bank to make
available the Facilities or to permit any Utilisation of the
Facilities, whereupon the relevant Borrowers shall prepay,
without fee or penalty, the whole (but not part only) of the
Facilities (and provide cash cover in respect of the Guarantee
Facility C) together with, in each case, accrued interest
thereon and all other sums due to the Bank including, without
limitation, any break funding costs payable pursuant to clause
14 under the terms of the Finance Documents (PROVIDED THAT,
the Principal Borrower shall not be obliged to pay the
prepayment fee under clause 8.3 if such increased cost or
diminished return affects only the Bank (and not, for example
all UK clearing banks or the banking market generally).
17
17.3 Mitigation
The Bank shall take all reasonable steps to mitigate any
circumstances which arise and which result in any amount
becoming payable under or pursuant to, or cancelled pursuant
to any of clauses 16 (Tax Gross-up and Indemnities) or 17
(Increased cost).
18. OTHER INDEMNITIES
18.1 Currency indemnity
18.1.1 If any sum due from an Obligor under the Finance Documents
(a "Sum"), or any order, judgment or award given or made in
relation to a Sum, has to be converted from the currency
(the "First Currency") in which that Sum is payable into
another currency (the "Second Currency") for the purpose of:
(a) making or filing a claim or proof against that Obligor;
(b) obtaining or enforcing an order, judgment or award in
relation to any litigation or arbitration proceedings,
that Obligor shall, as an independent obligation,
within three Business Days of demand, indemnify the
Bank against any cost, loss or liability arising out
of or as a result of the conversion including any
discrepancy between (i) the rate of exchange used to
convert that Sum from the First Currency into the
Second Currency and (ii) the rate or rates of
exchange available to that person at the time of its
receipt of that Sum.
18.1.2 Each Obligor waives any right it may have in any
jurisdiction to pay any amount under the Finance Documents
in a currency or currency unit other than that in which it
is expressed to be payable.
18.2 Other indemnities
18.2.1 The Principal Borrower shall (or shall procure that an
Obligor will), within three Business Days of demand,
indemnify the Bank against any cost, loss or liability
incurred by the Bank as a result of:
(a) the occurrence of any Default;
(b) a failure by an Obligor to pay any amount due under a
Finance Document on its due date;
(c) funding, or making arrangements to fund, its
participation in a Utilisation requested by a Borrower
in a Utilisation Request but not made by reason of the
operation of any one or more of the provisions of this
Agreement (other than by reason of wilful default or
gross negligence by the Bank alone);
(d) a Utilisation (or part of a Utilisation) not being
prepaid in accordance with a notice of prepayment given
by a Borrower or the Principal Borrower.
18
The Principal Borrower's liability in each case
includes any Break Costs and any loss or expense on
account of funds borrowed, contracted for or utilised
to fund any amount payable under any Finance
Document, any guarantee, any amount repaid or any
Loan.
19. COSTS AND EXPENSES
19.1 Transaction expenses
The Principal Borrower shall promptly on demand pay the Bank
the amount of all reasonable costs and proper expenses
(including, without limitation, legal, valuation, accountancy
and consultancy fees and all out-of-pocket expenses and VAT
payable thereon) incurred in connection with the negotiation,
preparation, printing, execution and registration of:
19.1.1 this Agreement and any other documents referred to in this
Agreement; and
19.1.2 any other Finance Documents executed after the date of this
Agreement.
19.2 Amendment costs
If any amendment, waiver or consent is made in relation to any
Finance Document, the Principal Borrower shall, within three
Business Days of demand, reimburse the Bank for the amount of
all reasonable costs and proper expenses in the amount agreed
by the Principal Borrower (such agreement not to be
unreasonably withheld or delayed) (including, without
limitation, legal, valuation, accountancy and consultancy fees
and out-of-pocket expenses and VAT payable thereon) reasonably
incurred by the Bank in connection with such amendment, waiver
or consent. For the avoidance of doubt the Principal Borrower
shall not be liable to pay any costs and expenses incurred by
any member of the Group (if any) or the Bank or in respect of
the syndication, assignment or transfer of all or any part of
the Facilities by the Bank to any other person.
19.3 Enforcement costs
The Principal Borrower shall, within three Business Days of
demand, pay to the Bank the amount of all costs and expenses
(including, without limitation, legal, valuation, accountancy
and consultancy fees and out-of-pocket expenses and VAT
payable thereon) incurred by the Bank in connection with the
enforcement of, or the preservation of any rights under, any
Finance Document.
20. REPRESENTATIONS
20.1 Initial Representations
Each Obligor makes the representations and warranties set out
in schedule 8 hereto to the Bank on the date of this Agreement
and on the Exchange Date and the Completion Date (save that,
on the Completion Date, references to the "Group" or a "member
of the Group" shall include the Target Group and members of
the Target Group).
19
20.2 Repetition
The Repeating Representations are deemed to be made by each
Obligor by reference to the facts and circumstances then
existing on:
20.2.1 the date of each Utilisation Request and the first day of each
Interest Period; and
20.2.2 in respect of an additional Borrower, the day on which it
becomes (or it is proposed that it becomes) an additional
Borrower.
21. INFORMATION UNDERTAKINGS
The undertakings in this clause 21 remain in force from the date of this
Agreement for so long as any amount is outstanding under the Finance
Documents or the Bank has any obligation in respect of any Facility.
21.1 Financial Information
The Principal Borrower shall supply to the Bank:
21.1.1 as soon as the same become available, but in any event within
120 days after the end of each ARP the Audited Accounts of the
Group for that ARP; and
21.1.2 as soon as the same become available, but in any event within
180 days after the end of each ARP, the Audited Accounts of each
Obligor for that ARP;
21.1.3 as soon as the same become available, but in any event within
30 days after the end of each Month the consolidated Monthly
Management Accounts of the Group for that Month; and
21.1.4 as soon as the same become available but in any event within 90
days of the Group's half year the consolidated interim management
accounts of the Group for such 6 month period.
21.2 Annual Budget and Balance Sheet
In respect of each ARP of the Principal Borrower, the
Principal Borrower shall submit to the Bank by no later than
one month following the beginning of such ARP, itemised
consolidated capital and revenue budgets and balance sheets
for the Group, in a format acceptable to the Bank (acting
reasonably), showing forecast trading and cash flow figures
and all material acquisitions, disposals and other commitments
proposed for that ARP, such budgets to be broken down on a
monthly basis and, if appropriate, split between the different
operations of the Group and setting out, in such detail as the
Bank may reasonably require, the maximum aggregate amount of
capital expenditure to be incurred by the Group during the ARP
to which such budget relates and the class or classes of
assets to be thereby acquired and any planned material
disposals of assets. The Principal Borrower agrees that the
terms of such capital expenditure budget, once submitted by
the Bank, shall not change in relation to the relevant ARP,
unless the Bank gives its prior written consent in writing.
20
21.3 Compliance Certificate and Verification
21.3.1 The Principal Borrower shall supply to the Bank with each set
of financial statements delivered pursuant to clause 21.1 where
the date to which the same have been prepared is also a testing
date of the financial covenants under clause 22.1 (Financial
Covenants), a Compliance Certificate setting out (in reasonable
detail) computations as to whether or not there has been
compliance with clause 22.1 (Financial Covenants) and the Margin
Reduction Targets as at the date as at which those financial
statements were drawn up. Each such Compliance Certificate shall
be signed by two directors (without personal liability) of the
Principal Borrower (one of whom shall be the finance director of
the Principal Borrower).
21.3.2 The Principal Borrower shall use its reasonable endeavours to
ensure that each set of Audited Accounts is also be accompanied
by a certificate signed by the Principal Borrower's auditors (the
"Auditors Certificate") which shall:
(a) be in a form acceptable to the Bank (acting reasonably);
(b) demonstrate whether or not, as at the date of the relevant
Audited Accounts, the ratios set out in clause 22.1
(Financial Covenants) have been achieved; and
(c) attach computations in reasonable detail verifying the same.
21.4 Investigations
21.4.1 If the Bank has reasonable grounds for believing that either:
(a) any financial statements or calculations provided under this
Agreement are inaccurate or incomplete in any material
respect; or
(b) an Obligor is, or may shortly be, in breach of any of its
material obligations under this Agreement,
then the Principal Borrower will at its own expense,
if so required by the Bank if the Bank considers it
appropriate, instruct the Auditors to discuss the
financial position of the Group with the Bank and to
disclose to the Bank (and provide copies of) such
information as the Bank may reasonably request
regarding the financial condition and business of the
Group.
21.4.2 If, having taken the steps in 21.4.1 above the Bank (acting
reasonably) believes that the provisions of clauses 21.4.1(a) or
21.4.1(b) still apply, then the Bank may instruct the Auditors
(or other firm of accountants selected by the Bank) to carry out
an investigation at the Principal Borrower's expense into the
affairs, the financial performance and/or the accounting and
other reporting procedures and standards of the Group, and the
Principal Borrower will procure that full co-operation is given
to the Auditors or other firm of accountants so selected.
21
21.5 Requirements as to financial statements
21.5.1 Each set of financial statements delivered by the Principal
Borrower pursuant to clauses 21.1.1 to 21.1.3 shall be certified
by a director (without personal liability) of the relevant
company as fairly representing its financial condition as at the
date as at which those financial statements were drawn up and
each set of Monthly Management Accounts shall include the
following:
(a) a consolidated profit and loss account and balance sheet for
the Group for such period;
(b) a comparison of actual performance for each such period
against budgeted performance as set out in the Annual
Budget;
(c) a commentary of the Management of the Principal Borrower in
respect of the comparison referred to in clause (b)
explaining such variances;
(d) details of the Group's:
(i) missed call percentages;
(ii) sales and margin mix;
(iii) internet down-time percentage; and
(iv) conversion rate,
for such period,
and each set of Monthly Management Accounts for the
end of each Quarterly Period shall also include a
cash flow statement for the Group for such period;
21.5.2 The Principal Borrower shall procure that each set of financial
statements of an Obligor delivered pursuant to clauses 21.1.1 to
21.1.3 are prepared using GAAP, accounting practices and
financial reference periods consistent with those applied in the
preparation of the immediately preceding financial statements for
that Obligor unless, in relation to any set of financial
statements, it notifies the Bank that there has been a change in
GAAP, the accounting practices or financial reference periods and
its Auditors (or, if appropriate, the Auditors of the Obligor)
deliver to the Bank:
21.5.2.1 a description of any change necessary for those
financial statements to reflect the GAAP, accounting
practices and financial reference periods upon which that
Obligor's previous financial statements were prepared; and
21.5.2.2 sufficient information, in form and substance as may be
reasonably required by the Bank, to enable the Bank to
determine whether the Financial Covenants have been complied
with and make an accurate comparison between the financial
position indicated in those financial statements and the
previous financial statements of the relevant Obligor.
22
Any reference in this Agreement to those financial
statements shall be construed as a reference to those
financial statements as adjusted to reflect the basis
upon which the previous financial statements of the
relevant Obligor were prepared.
21.5.3 If any change in GAAP, the accounting practices or financial
reference periods occurs as referred to in clause 21.5.2, the
Bank and the Principal Borrower shall negotiate in good faith
with the aim that the Financial Covenants may (if necessary) be
amended to reflect the changes in GAAP, accounting practices
applied or accounting periods applied in respect of such
financial statements, PROVIDED THAT, if such negotiations are not
concluded to the satisfaction of the Bank (acting reasonably)
within a period of 30 days from the commencement thereof, the
Principal Borrower agrees that it will provide financial
statements on the same basis as applied immediately prior to such
change.
21.6 Information: miscellaneous
The Principal Borrower shall supply to the Bank :
21.6.1 all documents dispatched by the Principal Borrower to its
shareholders (or any class of them) or its creditors generally at
the same time as they are dispatched;
21.6.2 a copy of each quarterly return the Group makes to the
Securities and Exchange Commission (in the USA) in accordance
with its obligations in respect of its NASDAQ listing within 30
days of such return being made;
21.6.3 a copy of each quarterly return the Group makes to the CAA in
respect of the "free asset" test made by the CAA (together with
any further documentation supplied in connection thereto by the
Group) within 30 days of such return being made;
21.6.4 promptly, such further information regarding the financial
condition, business and operations of any member of the Group as
the Bank may reasonably request; and
21.6.5 at the same time as it delivers to the Bank the Monthly
Management Accounts pursuant to clause 21.1.3, an update on the
implementation of the Impact IT System and integration of the
Target Group into the Group (and details of any changes from the
integration plan delivered pursuant to clause 8.4), until such
time as such implementation and integration has completed.
21.7 Notification of default
21.7.1 Each Obligor shall notify the Bank of any Default (and the
steps, if any, being taken to remedy it) promptly upon becoming
aware of its occurrence (unless that Obligor is aware that a
notification has already been provided by another Obligor).
21.7.2 Promptly upon a request by the Bank, the Principal Borrower
shall supply to the Bank a certificate signed by two of its
directors or senior officers on its behalf certifying that no
Default is continuing (or if a Default is continuing, specifying
the Default and the steps, if any, being taken to remedy it).
23
22. FINANCIAL CONDITION
22.1 Financial Covenants
While any amounts or liabilities (whether actual or
contingent) are outstanding under the Finance Documents or the
Bank has any obligation in respect of any Facility, the
Principal Borrower shall procure that:
22.1.1 Absolute EBIT
The amount of EBIT at the end of each Quarterly
Period referred to below shall equal or exceed the
amount set out opposite such period:
Quarterly Period Ending Amount ((pound))
30 June 2003 1,000,000
30 September 2003 6,750,000
31 December 2003 11,500,000
31 March 2004 12,000,000
30 June 2004 12,000,000
Thereafter 12,000,000
22.1.2 Senior Debt minus Bond Liabilities/EBIT Ratio
The ratio of the aggregate amount of Senior Debt
minus Bond Liabilities to EBIT in respect of each of
the periods set out below, is not greater than the
ratio specified in respect of such period:
Quarterly Period Ending Ratio
31 December 2003 2.75:1
31 March 2004 2.25:1
30 June 2004 2.00:1
Thereafter 2.00:1
22.1.3 Senior Debt/EBIT Ratio
The ratio of the aggregate amount of the Senior Debt
to EBIT, in respect of the periods set out below is
not greater than the ratio specified in respect of
such period:
Quarterly Period Ending Ratio
31 December 2003 4.0:1
31 March 2004 3.0:1
30 June 2004 2.5:1
Thereafter 2.5:1
24
22.1.4 Total Debt Service Cover
The ratio of Operating Cash Flow (excluding any
increase/decrease in Working Capital) to Total Debt
Service at the end of each Quarterly Period following
(and including) the Quarterly Period ending 30
September 2003 shall equal or exceed 1.5:1.0.
22.1.5 Absolute Cash Flow
The amount of Operating Cash Flow at the end of each
Quarterly Period referred to below shall equal or
exceed the amount set out opposite such period:
Quarterly Period Ending Amount ((pound))
30 September 2003 11,000,000
31 December 2003 3,000,000
31 March 2004 20,000,000
30 June 2004 20,000,000
Thereafter 20,000,000
22.1.6 Cash / Trade Creditor Ratio
The ratio of Cash to Trade Creditors (when measured
by reference to the most recent Monthly Management
Accounts or Audited Accounts) will at all times be at
least equal to or 1.0:1, save in respect of the
period to 1 May 2003 to 30 September 2003 when the
ratio shall be equal to or exceed 0.9:1.
22.1.7 Net Worth
The Net Worth (to be measured by reference to the
most recent Monthly Management Accounts or Audited
Accounts) will at all times during the periods listed
below be not less than the amount set out opposite
such period;
Period (pound)
Completion Date to 31 December 2003 30,000,000
1 January 2004 to 29 September 2004 37,500,000
Thereafter 37,500,000
22.2 Testing of Financial Covenants
The Financial Covenants shall be tested by reference to:
22.2.1 the Audited Accounts of the Group for the relevant ARP; and
22.2.2 the Monthly Management Accounts of the Group for the relevant
period,
calculated (except for the Net Worth test under clause 19.1.7
and the ratio of Cash to Trade Creditors under clause 19.1.6
and when calculating the amount of Senior Debt, Bond
25
Liabilities and Deferred Consideration, which shall all be
calculated by reference to the relevant amount as at the
relevant date and not on a rolling 12 Month basis) on a
rolling 12 Month basis by reference to the 12 Months ending on
the last day of the relevant period except during the period
from 1 February 2003 to 31 December 2003 (inclusive) when the
calculation shall be made on a cumulative basis from 1
February 2003.
22.3 Audited Accounts to prevail
If, in respect of any period, there is any discrepancy between
the information set out in the Monthly Management Accounts for
such period and the information set out in the Audited
Accounts for that period, the information in the Audited
Accounts shall prevail.
22.4 Definitions
In this Agreement the following terms shall have the following
meanings:
"Bond Liabilities" means the aggregate of the Group's
liability (actual and contingent but without double-counting)
under all guarantees, bonds, indemnities and sureties issues
by any Group Company or on its behalf (and including any
liability under any Bank Guarantees);
"Cash" means, at any time, the aggregate amount of cash at
bank (as such term is used in the relevant financial
statements and in accordance with GAAP) of the Group;
"Deferred Consideration" means the sum of (pound)3,000,000
payable to the Vendors pursuant to clause 6.1.1(iii) of the
Acquisition Agreement;
"EBIT" means for any period the consolidated profit of the Group
for such period:
(i) before taking into account all extraordinary items (whether
positive or negative) but after taking into account all
exceptional items (whether positive or negative) other than
exceptional charges of up to (pound)7,900,000 in aggregate which
may be incurred in 2003;
(ii) before deducting all advance corporation tax, mainstream
corporation tax and their equivalents in any relevant
jurisdiction;
(iii) before taking into account interest accrued as an obligation of
or owed to any member of the Group whether or not paid, deferred
or capitalised during such period;
(iv) after deducting (to the extent otherwise included) any gain over
book value arising in favour of the Group on the sale, lease or
other disposal of any asset (other than the sale of trading
stock) during such period and any gain arising on any revaluation
of any asset during such period;
(v) before deduction of any amount charged in respect of the costs of
the Acquisition and any amount written off the value attributed
to acquisition goodwill (in respect of the Acquisition and
acquisitions which occurred prior to the date of this Agreement);
and
(vi) before deduction of Stock Compensation Charges incurred during
such period;
"EBITDA" means, for any period, EBIT adding back any amounts
deducted in respect of depreciation charged;
26
"FRS" means the Financial Reporting Standards issued by the
Accounting Standards Board for application in England and
Wales;
"Net Worth" means, at any time, the aggregate of:
(i) the amounts paid up, or credited as paid up, on the issued share
capital of the Group;
(ii) any credit balance on the consolidated profit and loss account of
the Group after adding back any goodwill arising on the
acquisition of the Target, to the extent that it has been
amortised through the consolidation profit and loss account of
the Group; and
(iii) any amount standing to the credit of any other consolidated
capital and revenue reserves of the Group, including any share
premium account and capital redemption reserve;
less the aggregate at such time of:
(a) any debit balance on the consolidated profit and loss
account of the Group, after adding back any goodwill arising
on the acquisition of the Target, to the extent that it has
been amortised through the consolidated profit and loss
account of the Group;
(b) any reserves attributable to interests of minority
shareholders in any Subsidiary;
(c) any amount shown in such consolidated balance sheet in
respect of goodwill and other intangible assets (but
ignoring any amount shown in such consolidated balance sheet
in respect of goodwill arising on the acquisition of the
Target); and
(d) such part of the share capital or reserves as is, in the
opinion of the Auditors, attributable to any writing up of
any book values of any fixed assets after the Completion
Date or, in the case of a company becoming a Group Company
after the Completion Date, after the date of its becoming a
Group Company,
all as shown by the latest audited consolidated
accounts of the Group or by the latest consolidated
unaudited Monthly Management Accounts of the Group;
"Operating Cash Flow" means in respect of any period, EBITDA for that
period:
(i) less any increase in Working Capital (or plus any decrease in
Working Capital);
(ii) less the amount of Capital Expenditure incurred in the period
(after netting off the Net Proceeds received in relation to any
disposal);
(iii) less any costs incurred in respect of any acquisitions made
after the Completion Date and permitted under clause 23.12.1;
27
(iv) less payment of Taxes accounted for as advance corporation tax or
mainstream tax in accordance with current tax legislation from
time to time (net of any corporation tax repayments received);
(v) less any capital repayments and adding back any capital receipts
under finance leases and hire purchase agreements;
(vi) less any exceptional charges (other than up to (pound)6,000,000
(in aggregate) of exceptional charges which may be incurred in
2003), or plus any exceptional income, determined in accordance
with FRS 3 to the extent these have not been taken into account
elsewhere in determining EBIT (to avoid double counting) and to
the extent paid (or received) in cash;
"Senior Debt" means, at any time, the aggregate of:
(i) the Loans;
(ii) the Group's liability (actual and contingent) under all other
guarantees, bonds, indemnities and sureties issued by any Group
Company or on its behalf (and including any liability under Bank
Guarantees);
(iii) the capital element of hire purchase and finance lease
commitments of the Group; and
(iv) the Deferred Consideration;
"Senior Interest" means, in respect of a period, all interest,
fees, commissions and charges payable by any Group Company on
the Senior Debt for that period;
"Stock Compensation Charges" means in respect of any period,
the amount charged and/or released (as the case may be) to
profits for that period in respect of share options and other
share based incentive plans of the Group in accordance with
GAAP;
"Total Debt Service" means, in respect of any period, the
aggregate of:
(i) the principal amount of any Scheduled Repayments during such
period;
(ii) the amount of any Senior Interest payable during such period;
(iii) the aggregate principal amount of all dividends and
distributions (whether in cash or in specie and including,
without limitation, share redemptions and purchases) paid by the
Principal Borrower during such period;
"Trade Creditors" means at any time the aggregate amount due
to trade creditors of the Group but excluding any trade
creditors which are also a Group Company;
"Working Capital" means:
(i) the aggregate amount receivable by each member of the Group from
trade debtors (net of provisions for bad or doubtful debts),
other debtors, prepayments and accrued income; plus
(ii) stock and work-in-progress; less
(iii) any amounts due to trade creditors and other creditors
(excluding Financial Indebtedness under this Agreement) within
one year (to include accruals (other than accruals of interest on
Financial Indebtedness and accruals of dividends), deferred
income, PAYE and VAT).
28
23. NEGATIVE UNDERTAKINGS
While any amounts are outstanding under the Finance Documents or the
Bank has any obligation in respect of any Facility, the Principal
Borrower shall not and the Principal Borrower shall procure that no
member of the Group shall (unless the Bank otherwise consents in
writing):
23.1 Changing any ARP
alter its ARP from 31 December (other than in respect of the
Target Group whose current ARP will end on 31 March 2003 but
thereafter their ARP will end on 31 December). If the Bank
consents to a change to its ARP, it may require such changes
to the Financial Covenants and/or any other provisions of this
Agreement as will fairly reflect the change to the ARP and the
Principal Borrower shall procure that the ARPs of each member
of the Group shall be the same;
23.2 Disposals
sell, transfer, lease, lend or otherwise dispose of, whether
by a single transaction or a number of transactions and
whether related or not, the whole or any part of its
undertaking, business or assets, save for:
23.2.1 disposals of obsolete, damaged or redundant plant, equipment or
vehicles on arm's length terms and for fair market value;
23.2.2 disposals of stock or services in the ordinary course of
business on arm's length terms for full consideration;
23.2.3 disposals of cash in the ordinary course of business on arm's
length terms not otherwise restricted by the terms of the Finance
Documents;
23.2.4 provided no Default has occurred and is continuing, disposals
of assets not falling within clauses 23.2.1 to 23.2.3 (other than
Material Intellectual Property or the sale of shares or any
interest in any member of the Group or the Property) on arm's
length terms, where the aggregate value in respect of all such
disposals in any ARP does not exceed (pound)500,000;
23.2.5 disposals of assets between UK Chargors;
23.2.6 disposals of assets on arm's length terms by a member of the
Group which is not a UK Chargor to a UK Chargor;
23.2.7 provided no Default has occurred and is continuing, disposals
of assets not falling within clauses 23.2.1 to 23.2.6 (other than
Material Intellectual Property or any Property or the sale of
shares or any interest in any member of the Group) on arm's
length terms, where the proceeds of sale (net of Taxes applicable
on the disposal and all reasonable third party costs, fees or
expenses incurred by a Group Company in arranging and effecting
that disposal) are applied towards the acquisition of a
replacement asset within 6 months of such disposal (and pending
such acquisition, such disposal proceeds shall be placed in a Net
Proceeds Account, and if such proceeds are not so applied they
shall be treated as Net Proceeds and applied to repay the
Facilities in accordance with to clause 11.1.2(b)); and
29
23.2.8 loans permitted under clause 23.4,
(together the "Permitted Disposals");
23.3 Financial Indebtedness
incur Financial Indebtedness other than:
23.3.1 Financial Indebtedness under any Finance Document;
23.3.2 Financial Indebtedness of the Group at any time in respect of
all its finance leases or contracts for hire purchase up to a
maximum aggregate liability over the term of the relevant leases
or contracts of up to (pound)600,000 (or its equivalent in any
other currency);
23.3.3 Financial Indebtedness between Chargors;
23.3.4 Financial Indebtedness owed by a Non-Chargor to a Chargor;
23.3.5 Financial Indebtedness between Non-Chargors;
23.3.6 trade credit extended on normal commercial terms in the
ordinary course of business;
23.3.7 Existing Barclays Indebtedness and any other Financial
Indebtedness owed by any Group Company to the Bank;
23.3.8 Financial Indebtedness in respect of Permitted Bonds;
23.3.9 Financial Indebtedness owed by any Group Company to ABTA, IATA
or the CAA (or their equivalent in any other jurisdiction) in
respect of any Material Contracts and Membership (or their
equivalent in any other jurisdiction);
23.3.10 Financial Indebtedness of up to a maximum aggregate amount of
(pound)25,000 owed by Bridge the World Travel Service Limited and
charged pursuant to the rent deposit deed referred to in clause
23.7.7;
23.3.11 unsecured Financial Indebtedness owed by the Target Group to
Lloyds TSB Bank plc (where such Financial Indebtedness is not
guaranteed by the Bank pursuant to a Bank Guarantee) and which
has been approved in writing by the Bank;
23.3.12 Financial Indebtedness of the Group to a person where such
Financial Indebtedness is guaranteed by the Bank pursuant to a
Bank Guarantee;
30
23.3.13 Financial Indebtedness owed by a Chargor to a Non-Chargor
which is permitted by clause 24.16.2;
23.4 Loans and Credits
make any loans or grant any credit except for:
23.4.1 trade credit extended on normal commercial terms in the
ordinary course of business;
23.4.2 loans made between UK Chargors;
23.4.3 loans to employees of the Group not exceeding an aggregate
amount of(pound)100,000 at any time; and
23.4.4 loans permitted by clause 24.16.2;
23.5 Guarantees and Indemnities
not give any guarantee, bond, indemnity or other assurance
against financial loss or otherwise assume any liability
except:
23.5.1 under the Finance Documents;
23.5.2 in respect of any obligations of any Obligor (where such
obligations are incurred without breach of this Agreement);
23.5.3 Financial Indebtedness permitted by clause 23.3;
23.5.4 in respect of the obligations of any Non-Chargor and permitted
by clause 24.16.2;
23.6 Factoring
not enter into or permit to subsist any arrangement to sell or
dispose of any debts, goods or constraints of a member of the
Group which would have the commercial effect of factoring or
discovering the underlying receivables or other income stream
payable in respect of such debts, goods and constraints;
23.7 Security
create or permit to subsist any Security on its undertaking,
property or assets (or any part thereof other than):
23.7.1 Security constituted or evidenced by the Security Documents;
23.7.2 any lien arising by law or in the ordinary course of business;
23.7.3 any netting or set-off arrangement entered into by any member
of the Group in the ordinary course of any banking arrangements
permitted to be entered into by the terms of this Agreement;
31
23.7.4 any retention of title arrangements entered into in the
ordinary course of business;
23.7.5 Security to be discharged in full on the Completion Date;
23.7.6 Security existing over any property or asset acquired by a
Group Company (other than in connection with the Acquisition
which Security is to be discharged simultaneously with
Completion) provided that such Security is discharged in full as
soon as practicable and in any event within 15 days of such
acquisition;
23.7.7 Security constituted by the rent deposit deed dated 1 June 1998
made by Bridge the World Travel Service Limited in favour of
Capital and Counties PLC.
23.8 Transactions similar to Security
23.8.1 sell or otherwise dispose of any of its assets on terms where
such asset may be leased back to or re-acquired by any member of
the Group (save if such sale or other disposal and lease back or
reacquisition is between UK Chargors); or
23.8.2 purchase any asset on terms providing for a retention of title
by the vendor or on conditional sale terms or on terms having a
like substantive effect to any of the foregoing except (i) for
assets purchased in the ordinary course of trade on the normal
commercial terms of the vendor, and (ii) for fixed assets
acquired by stage payments payable by reference to the completion
of certain works or the conversion of such fixed assets;
23.9 Options
enter into or permit to subsist any arrangement whereby any
person has the right (whether or not exercisable only on a
contingency) to require any member of the Group:
23.9.1 to purchase or otherwise acquire any property or any interest
in property; or
23.9.2 to sell or otherwise dispose of any property or interest in
property;
23.10 Merger
merge or consolidate with any other person (other than as part
of a reconstruction, amalgamation or reorganisation on terms
previously approved in writing by the Bank);
23.11 Joint Ventures
form, enter into or operate any Joint Venture;
32
23.12 Acquisitions or Investments
23.12.1 make any acquisition or investment, whether by a single
transaction or a number of transactions and whether related or
not, of or in relation to any business save for the Acquisition;
23.12.2 lease (or otherwise acquire the use of) any premises, save for
any lease entered into by a member of the Group in the ordinary
course of its business;
23.13 Material change in business
make any material change in the nature of the business carried
on by the Group as at the date of this Agreement, or enter
into any new or unrelated business;
23.14 Dividends and Distributions on shares - limited prohibition
23.14.1 declare or pay any dividend on any of its shares; or
23.14.2 pay any unpaid arrears and accruals of any dividend in respect
of any of its shares; or
23.14.3 make any other distribution of income or fees to members in
respect of its shares,
except:
(i) dividends and distributions paid by a member of the
Group to a Chargor; and
(ii) dividends from the Principal Borrower to its members
where the Bank has received, not less than ten
Business Days prior to a proposed dividend
declaration or payment being made, written notice
from the Principal Borrower stating the amount of the
dividend to be paid and the scheduled date for
payment.
23.15 Redemptions and distributions - total prohibition
23.15.1 make any distribution of capital (whether in cash or specie)
to its members; or
23.15.2 redeem or purchase any of its shares; or
23.15.3 otherwise reduce its capital;
23.16 Amendments to Principal Contracts
make any material amendment to, waive, supplement or vary in any
material respect the terms of the Acquisition Documents;
23.17 Appointment of Auditors
appoint any auditors of the Principal Borrower or any other member of
the Group (other than an Approved Auditor);
33
23.18 Other bank accounts
after the Completion Date, open or maintain any bank account
with any recognised bank or building society other than:
23.18.1 accounts maintained with the Bank pursuant to the terms of the
Finance Documents; and
23.18.2 the accounts, details of which are set out in Schedule 11,
which the Group may continue to maintain provided that:
23.18.2.1 such accounts are operated and kept in credit at all
times;
23.18.2.2 the Principal Borrower provides the Bank with such
information as it may reasonably request from time to time
concerning such accounts;
23.18.2.3 if the aggregate credit balance of all such accounts of
any Non-Chargor exceeds (pound)750,000 (or its equivalent in
any other currency), such excess shall promptly be
transferred to an account with the Bank.
23.19 Dormant Group Companies
carry on any trade or business through, nor transfer any
assets into, any of the Dormant Group Companies, nor allow any
Dormant Group Company to incur any liabilities (other than
statutory liabilities) unless such Dormant Group Company has
previously entered into a security document in form and
substance satisfactory to the Bank;
23.20 Inter-company debt
if any member of the Group is the creditor of any other member
of the Group in respect of any indebtedness at any time, it
shall not take any action to cause that indebtedness to become
due or to be repaid unless no Default has occurred and the
relevant debtor has sufficient readily available cash to pay
such sum;
23.21 Announcements
make, or permit any of its officers or employees to make any
press release or other media communication in connection with
the transactions contemplated by the Transaction Documents
which refers to the Bank without previously agreeing its
content with the Bank (such consent not to be unreasonably
withheld or delayed). The Bank shall be entitled to make a
press releases or other media communication itself in
connection with the Acquisition with the prior written consent
of the Principal Borrower (such consent not to be unreasonably
withheld or delayed);
23.22 Off-balance sheet financing
enter into any off-balance sheet finance arrangements.
24. POSITIVE OBLIGATIONS
34
While any amounts are outstanding under the Finance Documents or the Bank
has any obligation in respect of any Facility, the Principal Borrower shall
and shall procure that each member of the Group shall (unless the Bank
otherwise consents in writing):
24.1 Binding obligations
subject to the Legal Reservations, ensure that all of the
obligations of any Obligor under the Finance Documents will at
all times constitute direct, enforceable and binding
obligations of such Obligor;
24.2 Corporate status
ensure that each member of the Group does all such things as
are necessary to maintain its corporate existence (unless it
is a Dormant Group Company which is the subject of a
winding-up);
24.3 Pari Passu
ensure that its payment obligations under the Finance
Documents rank at least pari passu to the claims of all its
other creditors, except for the obligations mandatorily
preferred by law applying to companies generally;
24.4 Details of litigation
advise the Bank forthwith of the details of any litigation,
arbitration or other litigious or administrative proceeding
which is formally commenced against any member of the Group
and which involves or may involve an amount in excess of
(pound)50,000 (including any costs likely to be incurred in
relation to any such action);
24.5 Licences, registration and stamping
ensure that there:
24.5.1 shall be obtained, complied with and promptly renewed and
maintained all Authorisations of;
24.5.2 shall be made all filings, recordings, registrations or
enrolments with; and
24.5.3 shall be paid any stamp, registration or similar tax to be paid
to,
he CAA, ABTA, and IATA, any governmental authorities or
gencies or courts (if any), which are required to be
btained, complied with, renewed, maintained, made or paid by
ny member of the Group by the CAA, ABTA, IATA or under any
pplicable law or regulation in order to enable any member of
he Group to perform its obligations under any Finance
ocument to which it is a party, or to ensure the legality,
alidity and enforceability of any such Finance Document with
espect to it, or as are required to carry on the business of
he Group;
24.6 Access
upon reasonable notice being given by the Bank, the Principal
Borrower will procure that any one or more representatives of
the Bank and/or accountants or other professional advisers
appointed by the Bank are allowed to have access during normal
business hours to the assets, books and records of each member
of the Group, and are able to inspect and copy the same (and
35
for the avoidance of doubt this clause 24.6 shall not impose
any obligation on the Group to meet any of the costs of the
representatives and (or accountants and/or professional
advisers appointed by the Bank);
24.7 Transaction Documents
comply with all material terms of the Transaction Documents to which it
is a party;
24.8 Insurance
ensure that each Obligor will effect and maintain insurances
at its own expense in respect of all of its assets and
business with reputable insurers. Such insurances shall:
24.8.1 provide cover (on terms commonly available in the relevant
insurance markets) against all risks which are normally insured
against by other companies carrying on similar businesses,
including, without limitation, insurance against business
interruption, loss of profits, product liability, professional
indemnity, pollution and public liability;
24.8.2 be in such amounts as would in the circumstances be prudent for
such companies and shall include, without limitation, an
entitlement to receive the full replacement or reinstatement
value from time to time of any assets destroyed or otherwise
becoming a total loss;
24.8.3 procure that if the Bank so requests the interest of the Bank
as mortgagee is noted on all relevant policies;
24.8.4 comply with the terms of all such insurance policies, including
any stipulations or restrictions as to use or operation of any
asset and shall not do or permit to be done anything which may
make such insurance policy void or voidable;
24.8.5 procure that the Obligors shall punctually make all premium and
other payments necessary for effecting or maintaining such
insurances;
24.8.6 if any default shall at any time be made by any Obligor in
effecting or maintaining such insurance or in producing any such
receipt to the Bank on demand or depositing any policy with the
Bank pursuant to the Security Documents, the Bank may take out or
renew such insurances in such sums as the Bank may think
expedient and all moneys expended by the Bank under this
provision shall be recoverable by the Bank under the Finance
Documents;
24.8.7 procure that the Obligors shall, if so required by the Bank,
(acting reasonably) use all their reasonable endeavours to cause
the policies of insurance maintained by them and in respect of
which the Bank has requested its interest as mortgagee to be
noted pursuant to clause 24.8.3 to be forthwith amended to
include clauses in form satisfactory to the Bank to ensure that
the policies shall not be voidable by the insurers as a result of
any misrepresentation, non-disclosure of material facts or breach
of warranty provided that in each case there shall have been no
fraud or wilful deceit on the part of the insured Obligor,
36
and each Obligor will supply on written request copies of each
policy of insurance required to be maintained in accordance with
this clause 24.8, together with the current premium receipts
relating thereto;
24.9 Preservation of Intellectual Property
ensure that each member of the Group will:
24.9.1 observe and comply with all material obligations and laws to
which it is subject in its capacity as registered proprietor,
beneficial owner, user, licensor or licensee of its Material
Intellectual Property or any part thereof;
24.9.2 do all acts as are reasonably practicable to maintain, protect
and safeguard its Material Intellectual Property (including the
commencement of legal proceedings) and not discontinue the use of
any of its Material Intellectual Property, nor, so far as it is
able, allow it to be used in such a way that it is put at risk by
becoming generic or by being identified as disreputable in any
way;
24.9.3 not change the specification referred to in any of its
registration of any Material Intellectual Property or permit any
disclaimer, condition, restriction, memorandum or other thing to
be entered on the registration of any of the trade marks
comprised within such Intellectual Property, the effect of which
will be to materially and adversely affect the value of such
trade marks;
24.9.4 (save as pursuant to the Security Documents) not assign, sever,
dispose of, or otherwise part with, control of its Material
Intellectual Property;
24.9.5 maintain a centralised record of all its Material Intellectual
Property (including details of agents engaged in relation to
registrations thereof); and
24.9.6 as and when reasonably requested by the Bank, promptly provide
the Bank with a copy of the record described in clause 24.9.5
and/or a written summary of all its Material Intellectual
Property created or acquired since the date of this Agreement or
the date of the last notification, in accordance with the
provisions of this clause 24.9.6;
24.9.7 make such registrations and pay such fees, registration Taxes
and similar costs as are necessary to keep the registered
Material Intellectual Property in force and record its interest
in such Material Intellectual Property;
24.10 Environmental protection
24.10.1 obtain all requisite Environmental Licences and comply in all
material respects with (i) the terms and conditions of all
Environmental Licences applicable to it and (ii) all other
applicable Environmental Laws; and
37
24.10.2 promptly upon receipt of the same, notify the Bank of any
claim, notice or other communication served on it in respect of
any alleged breach of or corrective or remedial obligation or
liability under any Environmental Law; and
24.10.3 indemnify the Bank, each receiver appointed under any Security
Document and their respective officers, employees, agents and
delegates (together the "Indemnified Parties") against any cost
or expense suffered or incurred by them (except if caused by
their own negligence or wilful default) which:
(a) arises by virtue of any actual or alleged breach of any
Environmental Law (whether by any Obligor, an Indemnified
Party or any other person);
(b) arises by virtue of the release or threatened release of, or
exposure to any Dangerous Substance stored or handled upon,
transported from, or otherwise associated with, the past or
present Facilities or operations of any member of the Group;
or
(c) arises in connection with an Environmental Claim,
and which would not have arisen if the Finance Documents or any
of them had not been executed;
24.11 Claims under Acquisition Documents
having due regard to the practicalities of and likely benefits
accruing from enforcement, take all action necessary to
enforce its material rights in relation to warranties,
undertakings and indemnities given to any member of the Group
under the Acquisition Documents and take all action to enforce
all other material rights and entitlements under the
Acquisition Documents;
24.12 Taxes
ensure that each member of the Group pays promptly all Taxes
imposed upon it or any of its assets, income or profits or any
transactions undertaken or entered into by it (unless the same
is being diligently contested in good faith and appropriate
provision for payment or settlement has been made in the most
recent Monthly Management Accounts);
24.13 Pension schemes
24.13.1 if requested by the Bank and if a Default if continuing,
prepare and deliver actuarial reports in relation to the pension
schemes for the time being operated by the Group;
24.13.2 if any actuarial or other reports are prepared by or on behalf
of a Group Company in order to comply with the then current
statutory or auditing requirements in relation to any pension
scheme being operated by the Group, promptly provide the Bank
with a copy of such reports; and
24.13.3 ensure that all such pension schemes are fully funded to the
extent required by law, and in accordance with reasonable
actuarial assumptions.
24.14 Conduct of Acquisition
between the Exchange Date and the Completion Date:
38
24.14.1 keep the Bank advised of the progress of the Acquisition and
of all matters affecting or reasonably likely to affect the
interest of the Bank arising in connection with the Acquisition
(including particularly any matters relating to the Target Group)
and the Principal Borrower shall provide the Bank with any
information and copies of the professional advice received by it,
as the Bank may reasonably request;
24.14.2 disclose to the Bank all information which has come to its
attention which is relevant to any decision whether or not to
waive (or to consent to the waiver of) any condition of the
Acquisition;
24.14.3 ensure that all its material obligations in connection with
the Acquisition and the Acquisition Documents and the Placing
Agreement are strictly complied with and performed and take
appropriate action to enforce the material obligations of the
other parties to the Acquisition Documents and the Placing
Agreement to which a member of the Group is a party (to the
extent such Group Company is able to enforce such compliance and
performance under the terms of those agreements);
24.14.4 use all its reasonable endeavours to procure that any
conditions to completion of the Acquisition are satisfied;
24.14.5 promptly notify the Bank of any material breach of any of the
Acquisition Documents and the Placing Agreement following it
becoming aware of the same (including, but without limitation,
any breach which would entitle the Principal Borrower not to
complete the Acquisition or Evolution Xxxxxx Xxxxxxx Limited not
to complete its obligations under the Placing Agreement);
24.14.6 if any breach of any Acquisition Documents or the Placing
Agreement occurs, the Principal Borrower shall not waive any
breach without the prior written consent of the Bank and if such
breach would entitle the Principal Borrower not to complete the
Acquisition, the Principal Borrower shall not complete the
Acquisition without the Bank's prior written consent;
24.15 Further Security
24.15.1 procure that any Material Subsidiary which is not a Chargor
shall, at the request of the Bank, execute and deliver to the
Bank a Deed of Accession (Guarantee), subject to any provisions
of law prohibiting such person from entering into such documents.
If the relevant Material Subsidiary is a Material Overseas
Subsidiary the Bank may require such Material Overseas Subsidiary
to enter into a further cross-guarantee (based on the law of the
country in which such Material Subsidiary is incorporated), such
further cross-guarantee to be in form and substance satisfactory
to the Bank (acting reasonably) and imposing obligations no more
onerous than those set out in the Guarantee (unless the Bank
receives legal advice that additional obligations are necessary
to enable it to have a valid and binding guarantee under the
relevant local law). In addition, if the relevant Material
Subsidiary is a Material Overseas Subsidiary, the Chargor shall
also, at the request of the Bank, provide the Bank with a legal
opinion in respect of such additional local-law guarantee or Deed
of Accession (Guarantee) such legal opinion to be addressed to
39
the Bank, in form and substance satisfactory to the Bank (acting
reasonably) and from a law firm acceptable to the Bank (acting
reasonably). Where any such prohibition as is referred to in this
clause 24.15.1 exists, the Obligors shall use all their
reasonable endeavours (including payment of all its own and third
party costs and expenses incurred in connection with overcoming
such prohibition or risk) to overcome the prohibition, and the
Bank may (but shall not be obliged to) agree with the relevant
member of the Group limitations on the extent of the Security
granted by it to the extent that in the Bank's opinion, based on
the advice of independent legal counsel acceptable to the Bank
(the costs of which shall be for the account of the Principal
Borrower), it is necessary to do so in order to overcome the
prohibition or risk or desirable to do so in order to avoid
doubts or limitations on the enforceability of any Security given
or to be given by any member of the Group by such Obligor;
24.15.2 procure that each other relevant member of the Group which is
its Subsidiary shall, at its own expense execute and do all such
assurances, acts and things as the Bank may reasonably require
for perfecting or protecting the Security intended to be afforded
by the Security Documents or, if the Security Documents have then
become enforceable, for facilitating the realisation of all or
any part of the assets which are subject to the Security
Documents by the Bank or any receiver and in particular shall
execute all transfers, conveyances, assignments and releases of
that property whether to the Bank or to its nominees and give all
notices, orders and directions which the Bank may reasonably
think expedient;
24.16 Ring Fencing Arrangements
24.16.1 ensure the business of the Chargors is carried on
independently from and at arm's length to the business carried on
by the Non-Chargors and, in particular, that any services or
assets provided by a Non-Chargor to a Chargor (or vice-versa) are
only provided to the extent required for the proper operation of
the recipient's business and on arm's length terms for full
market consideration payable in cash or on terms which would
apply to any transactions on arm's length terms in the market
generally;
24.16.2 ensure that no Chargor shall:
(a) make any loan, grant any credit or give or permit to subsist
any security, guarantee, indemnity or financial
accommodation or liability (whether actual or contingent) to
or for the benefit of any Non-Chargor; or
(b) subscribe for any shares, loan notes, debentures, commercial
paper or other financial instrument issued or proposed to be
issued by any Non-Chargor or underwrite any issue of the
same,
where the maximum aggregate liability (both actual
and contingent) owed to all the Chargors by the
Non-Chargors in any ARP exceeds (pound)500,000;
24.16.3 if requested by the Bank, procure that any cash sums in
excess of (pound)750,000 held by any Non-Chargor are to the
extent it is lawful to do so promptly transferred by way of
cash distribution, loan or other lawful method of transfer
40
to a UK Chargor and that any legal procedures required to be
undertaken in connection with any such transfers are duly
undertaken;
24.17 Material Contracts and Membership
promptly notify the Bank of any material amendment or proposed
material amendment and any termination or proposed termination
of any Material Contract and deliver within 5 days of receipt
to the Bank a copy of any notice received or agreement made in
relation thereto;
24.18 Minimum Security
procure that at all times the aggregate total:
24.18.1 gross assets of the Chargors is at least equal to 80 per cent
of the aggregate total consolidated gross assets of the Group;
24.18.2 EBITDA of the Chargors is at least equal to 80 per cent of the
aggregate total consolidated EBITDA of the Group;
24.18.3 Net Worth of the Chargors is at least equal to 80 per cent of
the aggregate total consolidated Net Worth of the Group; and
24.18.4 gross turnover of the Chargors is at least equal to 80 per
cent of the aggregate total consolidated gross turnover of the
Group,
in the case of clauses 24.18.1, 24.18.3 and 24.18.4 based on
the Monthly Management Accounts of the Group at the end of the
most recent Quarterly Period and in the case of clause 24.18.2
based on the most recent Audited Accounts, in each case
delivered pursuant to clause 21.
24.19 Airline Supply Agreements
promptly notify the Bank if any agreement between a Group
Company and an airline supplier, which accounts for more than
5% of Group turnover (as determined by the most recent
financial statements delivered pursuant to clause 21.1) is
materially altered or terminated (unless in respect of
termination, if on termination such agreement is replaced by a
new but otherwise similar agreement between a Group Company
and the same airline supplier).
25. EVENTS OF DEFAULT
Each of the events or circumstances set out in schedule 9 is an Event
of Default.
25.1 Acceleration
On and at any time after the occurrence of an Event of Default
which is continuing, the Bank may by notice to the Principal
Borrower:
25.1.1 declare that an Event of Default has occurred; and/or
25.1.2 (subject to clause 7.4 (Keystone Events of Default) in respect
of a Utilisation of the Revolving Credit Facility A, the Term
Loan Facility B and the Guarantee Facility C (made on the
41
Completion Date) cancel the Facilities whereupon they shall
immediately be cancelled; and/or
25.1.3 declare that all or part of the Utilisations, together with
accrued interest, and all other amounts accrued or outstanding
under the Finance Documents be immediately due and payable,
whereupon they shall become immediately due and payable; and/or
25.1.4 declare that all or part of the Utilisations be payable on
demand, whereupon they shall immediately become payable on demand
by the Bank; and/or
25.1.5 declare all or any of the Security Documents to have become
enforceable; and/or
25.1.6 call for cash cover from any Obligor in respect of any actual
or contingent liability assumed by the Bank in connection with
the Guarantee Facility C; and/or
25.1.7 (subject to clause 7.4 (Keystone Events of Default) in respect
of a Utilisation of the Revolving Credit Facility A, the Term
Loan Facility B and the Guarantee Facility C made on the
Completion Date) suspend the right of any Obligor to make any
further Utilisation.
25.2 Investigations and Reports
Without prejudice to any other rights and remedies of the
Bank, at any time after the occurrence of any Default, the
Bank may while such Default is continuing commission any
accounting, legal, property valuation, actuarial,
environmental, insurance or other report or investigation as
it considers necessary or appropriate to assist with the
evaluation of its position or exposure in relation to the
Facilities or the Group or any assets of the Group, and the
Borrowers jointly and severally undertake to pay on demand on
a full indemnity basis, all actual costs and expenses
including out of pocket expenses, fees and value added tax
thereon incurred by the Bank in connection with the
preparation of such reports or the carrying out of such
investigations and any advice given to the Bank with respect
thereto.
26. CHANGES TO THE OBLIGORS
26.1 Assignments and transfer by Obligors
No Obligor may assign any of its rights or transfer any of its
rights or obligations under the Finance Documents.
26.2 Appointment of Principal Borrower as agent
26.2.1 Each Obligor irrevocably appoints the Principal Borrower as its
agent for the purposes of the Finance Documents.
26.2.2 Each additional Borrower which accedes to this Agreement shall
be deemed to appoint the Principal Borrower as its agent for the
purposes of the Finance Documents by its execution of an
Accession Letter.
42
26.2.3 The Bank may rely on a document signed by the Principal
Borrower as if each other Obligor had signed it.
26.2.4 The Principal Borrower may give a good receipt for any sum
payable by the Bank to each other Obligor.
26.2.5 Any communication made by the Principal Borrower to the Bank
shall be deemed to have been made with the consent of each other
member of the Group.
27. ASSIGNMENT AND TRANSFER
The Bank shall be entitled to assign, novate or transfer or permit a
participation in all or any part of the Facilities to a Qualifying Bank and
the Borrowers undertake to execute and to procure that each Group Company
will execute all documents that the Bank shall reasonably require to give
effect to such assignment, novation, transfer or participation. After
assignment, novation, transfer or participation of all or any part of the
Facilities, the Borrower shall be entitled to prepay in full the Facilities
provided that such prepayment shall be made together with all accrued
interest on the Facilities and any Break Costs, but the Principal Borrower
shall not be required to pay the prepayment fee under clause 11.3.
28. PAYMENT MECHANICS
28.1 Payments to the Bank
28.1.1 On each date on which a Borrower is required to make a
payment under a Finance Document, that Borrower shall make
the same available to the Bank for value on the due date at
the time and in such funds specified by the Bank as being
customary at the time for settlement of transactions in the
relevant currency in the place of payment.
28.1.2 Payment shall be made to such account as the Bank
specifies.
28.2 Distributions by the Bank
The Bank may apply any amount received by it for a Borrower in
or towards payment (or the date and in the currency and funds
of receipt) of any amount due from a Borrower under a Finance
Document, or in or towards purchase of any amount of any
currency to be so accepted.
28.3 Partial payments
28.3.1 If the Bank receives a payment that is insufficient to
discharge all the amounts then due and payable by an Obligor
under the Finance Documents, the Bank shall apply that
payment towards the obligations of that Obligor under the
Finance Documents in the following order:
(a) first, in or towards payment pro rata of any unpaid
fees, costs and expenses of the Bank under the Finance
Document;
(b) secondly, in or towards payment pro rata of any accrued
interest or commission due but unpaid under the Finance
Documents;
43
(c) thirdly, in or towards payment pro rata of any
principal due but unpaid under the Finance Documents;
and
(d) fourthly, in or towards payment pro rata of any other
sum due but unpaid under the Finance Documents.
28.3.2 Clause 28.3.1 will override any appropriation made by an
Obligor.
28.4 No set-off by Obligors
All payments to be made by an Obligor under the Finance
Documents shall be calculated and be made without (and free
and clear of any deduction save as required by law for)
set-off or counterclaim.
28.5 Business Days
28.5.1 Any payment which is due to be made on a day that is not a
Business Day shall be made on the next Business Day in the same
calendar month (if there is one) or the preceding Business Day
(if there is not).
28.5.2 During any extension of the due date for payment of any
principal or Unpaid Sum under this Agreement interest is payable
on the principal or Unpaid Sum at the rate payable on the
original due date.
28.6 Currency of account
28.6.1 Subject to clauses 28.6.2 to 28.6.5, Sterling is the currency
of account and payment for any sum due from an Obligor under any
Finance Document.
28.6.2 A repayment of a Loan or Unpaid Sum or a part of a Loan or
Unpaid Sum shall be made in the currency in which that Loan or
Unpaid Sum is denominated on its due date.
28.6.3 Each payment of interest shall be made in the currency in which
the sum in respect of which the interest is payable was
denominated when that interest accrued.
28.6.4 Each payment in respect of costs, expenses or Taxes shall be
made in the currency in which the costs, expenses or Taxes are
incurred.
28.6.5 Any amount expressed in a Finance Document to be payable in a
currency other than Sterling shall be paid in that other
currency.
28.7 Change of currency
28.7.1 Unless otherwise prohibited by law, if more than one currency
or currency unit are at the same time recognised by the central
bank of any country as the lawful currency of that country, then:
(a) any reference in the Finance Documents to, and any
obligations arising under the Finance Documents in, the
currency of that country shall be translated into, or paid
in, the currency or currency unit of that country designated
by the Bank (after consultation with the Principal
Borrower); and
44
(b) any translation from one currency or currency unit to
another shall be at the official rate of exchange
recognised by the central bank for the conversion of
that currency or currency unit into the other, rounded
up or down by the Bank (acting reasonably).
28.7.2 If a change in any currency of a country occurs, this Agreement
will, to the extent the Bank (acting reasonably and after
consultation with the Principal Borrower) specifies to be
necessary, be amended to comply with any generally accepted
conventions and market practice in the Relevant Interbank Market
and otherwise to reflect the change in currency.
29. SET-OFF
29.1 The Bank may set off any matured obligation due from an Obligor
under the Finance Documents against any matured obligation owed
by that the Bank to that Obligor, regardless of the place of
payment, booking branch or currency of either obligation. If the
obligations are in different currencies, the Bank may convert
either obligation at a market rate of exchange in its usual
course of business for the purpose of the set-off.
29.2 No Security is created by this clause 29.
30. NOTICES
30.1 Communications in writing
Any communication to be made under or in connection with the
Finance Documents shall be made in writing and, unless
otherwise stated, may be made by fax or letter.
30.2 Addresses
The address and fax number (and the department or officer, if
any, for whose attention the communication is to be made) of
each Party for any communication or document to be made or
delivered under or in connection with the Finance Documents
is:
30.2.1 in the case of the Principal Borrower, that identified with its
name below;
30.2.2 in the case of the Bank, that identified with its name below,
or any substitute address, fax number or department or officer
as either Party may notify to the other Party by not less than
five Business Days' notice.
30.3 Delivery
30.3.1 Subject to clause 30.3.2 any communication or document made or
delivered by one person to another under or in connection with
the Finance Documents will only be effective:
45
(a) if by way of fax, when received in legible form; or
(b) if by way of letter, when it has been left at the
relevant address or five Business Days after being
deposited in the post, postage prepaid, in an envelope
addressed to it at that address,
and, if a particular department or officer is
specified as part of its address details provided
under clause 30.2 (Addresses), if addressed to that
department or officer.
30.3.2 Any communication or document to be made or delivered to the
Bank will be effective only when actually received by the Bank
and then only if it is expressly marked for the attention of the
department or officer identified with the Bank's signature below
(or any substitute department or officer as the Bank shall
specify for this purpose).
30.3.3 Any communication or document made or delivered to the
Principal Borrower in accordance with this clause will be deemed
to have been made or delivered to each of the Obligors.
30.4 English language
30.4.1 Any notice given under or in connection with any Finance
Document must be in English.
30.4.2 All other documents provided under or in connection with any
Finance Document must be:
(a) in English; or
(b) if not in English, and if so required by the Bank,
accompanied by a certified English translation and, in this
case, the English translation will prevail unless the
document is a constitutional, statutory or other official
document.
31. CALCULATIONS AND CERTIFICATES
31.1 Accounts
In any litigation or arbitration proceedings arising out of or
in connection with a Finance Document, the entries made in the
accounts maintained by the Bank are in the absence of manifest
error prima facie evidence of the matters to which they
relate.
31.2 Certificates and determinations
Any certification or determination by the Bank of a rate or
amount under any Finance Document is, in the absence of
manifest error, conclusive evidence of the matters to which it
relates.
46
31.3 Day count convention
Any interest, commission or fee accruing under a Finance
Document in relation to a Loan will accrue from day to day and
is calculated on the basis of the actual number of days
elapsed and a year of 365 days or, in any case where the
practice in the Relevant Interbank Market differs, in
accordance with that market practice.
32. PARTIAL INVALIDITY
If, at any time, any provision of the Finance Documents is or becomes
illegal, invalid or unenforceable in any respect under any law of any
jurisdiction, neither the legality, validity or enforceability of the
remaining provisions nor the legality, validity or enforceability of such
provision under the law of any other jurisdiction will in any way be
affected or impaired.
33. REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of the
Bank, any right or remedy under the Finance Documents shall operate as a
waiver, nor shall any single or partial exercise of any right or remedy
prevent any further or other exercise or the exercise of any other right or
remedy. The rights and remedies provided in this Agreement are cumulative
and not exclusive of any rights or remedies provided by law.
34. COUNTERPARTS
Each Finance Document may be executed in any number of counterparts, and
this has the same effect as if the signatures on the counterparts were on a
single copy of the Finance Document.
35. GOVERNING LAW
This Agreement is governed by English law.
36. ENFORCEMENT
36.1 Jurisdiction of English courts
36.1.1 The courts of England have exclusive jurisdiction to
settle any dispute arising out of or in connection with this
Agreement (including a dispute regarding the existence,
validity or termination of this Agreement) (a "Dispute").
36.1.2 The Parties agree that the courts of England are the most
appropriate and convenient courts to settle Disputes and
accordingly no Party will argue to the contrary.
36.1.3 This clause 36.1 is for the benefit of the Bank only. As a
result, the Bank shall not be prevented from taking
proceedings relating to a Dispute in any other courts with
jurisdiction. To the extent allowed by law, the Bank may
take concurrent proceedings in any number of jurisdictions.
36.2 Service of Process
47
Without prejudice to any other mode of service allowed under
any relevant law, each Obligor (other than an Obligor
incorporated in England and Wales):
36.2.1 irrevocably appoints the Principal Borrower as its agent for
service of process in relation to any proceedings before the
English courts in connection with any Finance Document;
36.2.2 agrees that failure by a process agent to notify the relevant
Obligor of the process will not invalidate the proceedings
concerned; and
36.2.3 agrees to appoint another agent with an address in England
promptly upon request of the Bank, and authorises the Bank to
appoint another agent if the Obligor fails to appoint one
following that request.
36.3 Waiver of Immunity
Each Obligor irrevocably:
36.3.1 consents generally in accordance with the Xxxxx Xxxxxxxx Xxx
0000 to relief being given against it in England or any other
jurisdiction by way of injunction or order for specific
performance or for the recovery of any property whatsoever or
other provisional or protective measures and to its property
being subject to any process for the enforcement of a judgment or
any process effected in the course or as a result of any action
in rem; and
36.3.2 waives and agrees not to claim any immunity from suits and
proceedings (including actions in rem) in England or any other
jurisdiction and from all forms of execution or attachment
(including attachment prior to judgment and attachment in aid of
execution) to which it or its property is now or may hereafter
become entitled under the laws of any jurisdiction and declares
that such waiver shall be effective to the fullest extent
permitted by such laws and in particular the United States
Foreign Sovereign Immunities Act of 1976.
37. THIRD PARTY RIGHTS
A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) Xxx 0000 to enforce or enjoy the benefit
of any term of this Agreement.
38. CONFLICT
In the event of any conflict between the terms of any Finance Document and
this Agreement, the terms of this Agreement shall prevail.
This Agreement has been entered into on the date stated at the beginning of this
Agreement.
48
SCHEDULE 1
Conditions precedent
Part 1
Conditions precedent to Exchange
1. In respect of the Principal Borrower:
1.1 a certificate of a director or the secretary to the effect that
the requisite board resolutions, in the agreed terms, have been
duly and properly passed at a duly convened and constituted
meeting:
1.1.1 authorising the execution, delivery and performance of
those of the Finance Documents to which it is a party;
1.1.2 authorising any director to sign those of the Finance
Documents to which it is a party and which require execution
under hand; and
1.1.3 authorising any two directors, or a director and secretary,
to sign those of the Finance Documents to which it is a
party and which require execution as a deed and to give any
notices or certificates required in connection therewith and
confirming that such resolutions are still in effect and
have not been varied or rescinded;
1.2 a certified copy of the resolutions of the board of directors, as
are referred to in paragraph 1.1 of part 1 of this schedule 1;
1.3 a certificate of a director or the secretary, in the agreed
terms, to the effect that the execution of the Finance Documents
does not contravene any provision of its constitution or trust
deed or arrangement or instrument to which it is party; and
1.4 a certified copy of its certificate of incorporation, change of
name and memorandum and articles of association.
2. This Agreement duly executed by the Principal Borrower.
3. The Reports.
4. A certified copy of the executed Acquisition Documents and the Placing
Agreement and a certified copy of the Circular in the agreed form.
5. The Financial Assistance Pre Press Release Letter.
6. A certified copy of the Original Audited Accounts and the Original
Monthly Management Accounts.
7. A copy of the latest consolidated audited accounts and monthly
management accounts of the Target Group.
8. The Pro Forma Financial Assistance Documents.
49
9. A copy of the agreed final form Resolutions and the related notices of
extraordinary general meeting.
10. A copy of the agreed final form press announcement to be issued in
connection with the Circular.
11. Agreed forms of the Guarantee and a Share Pledge.
12. An engagement letter from the Auditors in relation to Section 159(2)
of the Act in terms acceptable to the Bank in respect
of the Whitewash Companies.
50
Part 2
Conditions Precedent to Completion
1. In respect of the Whitewash Companies:
1.1 a certificate addressed to the Bank from the Auditors, in the
agreed terms, confirming certain matters in relation to Section
155(2) of the Act;
1.2 a certificate, in the agreed terms, of two directors of each
Whitewash Company certifying, in relation to such Whitewash
Company, that (a) the giving of financial assistance constituted
by the proposed entry by such Whitewash Company into the Finance
Documents (or any of them) has been made lawful as provided for
in Sections 155 to 158 of the Act and (b) an application under
Section 157(2) of the Act for the cancellation of the
resolution(s) approving the financial assistance cannot be made
by virtue of the fact all shareholders have consented to, or
voted in favour of, the resolution, such certificate having
appended thereto the following documents:
1.2.1 a statutory declaration by all of the directors of such
Whitewash Company, in the agreed terms, as required by
Section 155(6) of the Act in relation to such financial
assistance, such statutory declaration to be in the
prescribed form and having attached thereto the report
addressed by the Auditors, in the agreed terms, complying
with the provisions of Section 156(4) of the Act;
1.2.2 a certified copy of the resolutions of the board of
directors of such Whitewash Company, approving the matters
and things required to be done pursuant to this paragraph 1
and, in particular, the giving of such financial assistance;
and
1.2.3 a certified copy of the written resolution of all the
members of such Whitewash Company approving the giving of
financial assistance;
1.3 execution by each Whitewash Company of a Deed of Accession
(Guarantee);
1.4 a certified copy of the certificate of incorporation and
memorandum and articles of association of each Whitewash Company,
together with certified copies of the minutes of the meetings of
each members of each Whitewash Company, or written resolutions of
such members re-registering Travelbag PLC as a private limited
company and adopting such changes to the memorandum and articles
of association of each Whitewash Company as the Bank shall have
required, together also with a certificate of the secretary of
the Whitewash Company confirming that such resolutions were duly
and properly passed;
1.5 a certificate of a duly authorised officer of each Whitewash
Company, confirming that at the Completion Date the aggregate of
the Financial Indebtedness of such Whitewash Company (including
Financial Indebtedness under any of the Finance Documents) does
not or, as the case may be, would not, if fully drawn, exceed any
borrowing limit contained in the constitutional documents of such
Whitewash Company, or in any trust deed or other agreement or
instrument to which each Whitewash Company is a party;
1.6 a certificate of two directors of each Whitewash Company, in the
agreed terms, to the effect that the execution of the Finance
Documents by such Whitewash Company does not contravene any
51
provision of its constitution or trust deed or arrangement or
instrument to which it is party with its constitution.
2. The List of Directors for each Whitewash Companies, certified by two
directors of the Principal Borrower.
3. In respect of Callbookers Limited and Flightbookers Limited:
3.1 a certificate of a director or the secretary to the effect that
the requisite board resolutions, in the agreed terms, have been
duly and properly passed at a duly convened and constituted
meeting:
3.1.1 authorising the execution, delivery and performance of
those of the Finance Documents to which it is a party;
3.1.2 authorising any director to sign those of the Finance
Documents to which it is a party and which require execution
under hand; and
3.1.3 authorising any two directors, or a director and secretary,
to sign those of the Finance Documents to which it is a
party and which require execution as a deed and to give any
notices or certificates required in connection therewith and
confirming that such resolutions are still in effect and
have not been varied or rescinded;
3.2 a certified copy of the resolutions of the board of directors, as
are referred to in paragraph 3.1 of part 2 of this schedule 1;
3.3 a certificate of a director or the secretary, in the agreed
terms, to the effect that the execution of the Finance Documents
does not contravene any provision of its constitution or trust
deed or arrangement or instruments to which it is party;
3.4 a certified copy of its certificate of incorporation, change of
name and memorandum and articles of association; and
3.5 a certified copy of a members resolution of each such company
adopting such changes to its memorandum and articles of
association as the Bank shall have required, together with a
certificate of the secretary of such company confirming that such
resolutions were duly and properly passed.
4. Evidence that all Financial Indebtedness of the Group (other than
Financial Indebtedness permitted by clause 23.3) will contemporaneously
with completion of the Acquisition Documents be discharged and released
from:
4.1 all guarantees and indemnities and similar documents granted by
any of them in respect of the obligations of any other third
party; and
4.2 all Security existing immediately prior to the Completion Date,
including, without limitation, all mortgages or charges will
appear as undischarged in the mortgages register at the Companies
Registration Office.
5. Execution by the Principal Borrower, the Whitewash Companies,
Callbookers Limited and Flightbookers Limited of the Original Security
Documents to which they are a party (together with delivery of all
52
share certificates (other than in respect of the Target Shares) and
stock transfer forms required in connection with the Share Pledges.
6. Admission (as defined in the Placing Agreement) occurring.
7. Satisfaction that the Resolutions have been duly passed (and a
certified copy of the same).
8. A certificate of a duly authorised officer of the Principal Borrower,
confirming that at the Completion Date the aggregate of the Financial
Indebtedness of the Principal Borrower (including Financial
Indebtedness under any of the Finance Documents) does not or, as the
case may be, would not, if fully drawn, exceed any borrowing limit
contained in its constitutional documents, or in any trust deed or
other agreement or instrument to which it is a party.
9. Satisfaction (which may be given by way of a certificate of a duly
authorised officer of the Principal Borrower) that the Acquisition
Documents and the Investment Documents have been entered into by all
parties thereto, that each such agreement/instrument is in full force
and effect and that other than Utilisation of the Facilities all the
conditions precedent to such agreements/instruments have been
satisfied, that no conditions or obligations contained therein have
been waived or modified and that the Acquisition will occur
simultaneously with the first Utilisation.
10. Evidence that the Principal Borrower has received in cleared funds at
least(pound)25,500,000 by way of subscription for ordinary
shares in the Principal Borrower.
11. The estimated pro-forma opening balance sheet for the Group as at
Completion including summary details of all Financial Indebtedness of
Group Companies as at the Completion Date, such summary to detail:
11.1 Financial Indebtedness which is to be discharged on the
Completion Date; and
11.2 Financial Indebtedness which is to remain outstanding following
the Completion Date (other than Financial Indebtedness
constituted under the Finance Documents)).
12. Bank Mandates for the Whitewash Companies.
13. A certificate, in the agreed terms, of a director or the secretary of
the Principal Borrower, certifying that all Group Companies have all
material licences and permissions necessary for the proper conduct of
their respective businesses.
14. CAA, ABTA and IATA approval of the Acquisition.
13. A certified copy of each of the Service Agreements and confirmation
that no material condition or obligation contained therein has been
waived or modified since the date they were executed.
14. The Funds Flow Statement (including an estimate of the final
transaction costs and fees).
15. A certified copy of the Material Contracts and Membership.
53
SCHEDULE 2
Requests
Part 1
Utilisation Request
From: [Borrower]
To: Barclays Bank PLC
Dated: 200
Dear Sirs
[Principal Borrower] - [specify] FACILITY AGREEMENT DATED [DATE] 200 (the
"Agreement")
1. We refer to the Agreement. This is a Utilisation Request. Terms defined
in the Agreement have the same meaning in this Utilisation Request
unless given a different meaning in this Utilisation Request.
2. We wish to borrow a Loan/you to issue a Bank Guarantee on the following
terms:
-------------------------------- [DATE] 200 (or, if that is not a Business Day, the next Business
Proposed Utilisation Date: Day)
--------------------------------- -----------------------------------------------------------------------
--------------------------------- -----------------------------------------------------------------------
Facility to be utilised: [Revolving Facility A] [Term Loan Facility B] [Guarantee Facility C]
--------------------------------- -----------------------------------------------------------------------
--------------------------------- -----------------------------------------------------------------------
Currency of Loan: Sterling
--------------------------------- -----------------------------------------------------------------------
--------------------------------- -----------------------------------------------------------------------
Amount: or, if less, the Available Facility
--------------------------------- -----------------------------------------------------------------------
--------------------------------- -----------------------------------------------------------------------
Interest Period:
--------------------------------- -----------------------------------------------------------------------
--------------------------------- -----------------------------------------------------------------------
Bank Guarantee: [Insert relevant details]
--------------------------------- -----------------------------------------------------------------------
3. [We confirm that each condition specified in clause 7.2 (Further
conditions precedent) is satisfied on the date of this Utilisation
Request and that no Default is continuing or will occur as a result of
the Loan being made. [In respect of Revolving Credit Facility A, Term
Loan Facility B and Guarantee Facility C made on the Completion Date
only - We confirm that no Keystone Event of Default is continuing or
would result from the proposed Utilisation]
4. The proceeds of this Loan should be credited to [account].
54
5. This Utilisation Request is irrevocable.
Yours faithfully
-----------------------------------
authorised signatory for
[oname of relevant Borrower]
55
Part 2
Selection Notice applicable to Loans
From: [Borrower]
To: Barclays Bank PLC
Dated: 2002
Dear Sirs
[Principal Borrower] - [specify] FACILITY AGREEMENT DATED [DATE] 2002
(the "Agreement")
1. We refer to the Agreement. This is a Selection Notice. Terms defined in
the Agreement have the same meaning in this Selection Notice unless
given a different meaning in this Selection Notice.
2. We refer to the following Term/Revolving Loan in o with an Interest
Period ending on [DATE] 200*.
[INSERT DETAILS OF LOANS]
3. [We request that the above Term/Revolving Loans be divided into
Term/Revolving Loans with the following Interest Periods:]**
[specify]
or
[We request that the next Interest Period for the above Term/Revolving
Loan[s] is [specify].]***
4. This Selection Notice is irrevocable.
Yours faithfully
authorised signatory for
[the Principal Borrower on behalf of]
[name of relevant Borrower]
--------
* Insert details of all Term Loans in the same currency which have an Interest
Period ending on the same date.
** Use this option if division of Loans is requested.
*** Use this option if sub-division is not required.
56
SCHEDULE 3
Mandatory Cost formulae
1. The Mandatory Cost is an addition to the interest rate to compensate
the Bank for the cost of compliance with (a) the requirements of the
Bank of England and/or the Financial Services Authority (or, in either
case, any other authority which replaces all or any of its functions)
or (b) the requirements of the European Central Bank.
2. On the first day of each Interest Period (or as soon as possible
thereafter) the Bank shall calculate, as a percentage rate the
Mandatory Cost in accordance with the paragraphs set out below.
3. If the Bank is the lending from a Facility Office in a Participating
Member State the Mandatory Cost will be the percentage notified by the
Bank to be its reasonable determination of the cost (expressed as a
percentage of all Advances and overdue amounts made from that Facility
Office) of complying with the minimum reserve requirements of the
European Central Bank in respect of loans made from that Facility
Office.
4. If the Bank is lending from a Facility Office in the United Kingdom,
the Mandatory Cost will be calculated as follows in relation to each
Advance or overdue amount:
4.1 in relation to a Sterling Loan:
AB + C(B - D) + E X 0.01 per cent per annum
________________________
1000 - (A + C)
4.2 in relation to a Loan in any currency other than Sterling:
E X 0.01 per cent per annum.
________
300
Where:
A is the percentage of Eligible Liabilities (assuming these to
be in excess of any stated minimum) which the Bank is from
time to time required to maintain as an interest free cash
ratio deposit with the Bank of England to comply with cash
ratio requirements.
B is the percentage rate of interest (excluding the Margin and
the Mandatory Cost and, if the Loan is an Unpaid Sum, the
additional rate of interest specified in clause 12.3 (Default
interest)) payable for the relevant Interest Period on the
Loan.
C is the percentage (if any) of Eligible Liabilities which the
Bank is required from time to time to maintain as interest
bearing Special Deposits with the Bank of England.
D is the percentage rate per annum payable by the Bank of England
to the Bank on interest bearing Special Deposits.
E is designed to compensate lenders for amounts payable under
the Fees Rules and is calculated by the Bank as being the
average of the most recent rates of charge supplied by the
Reference Banks to the Bank pursuant to paragraph 7 below and
expressed in pounds per (pound)1,000,000.
57
5. For the purposes of this schedule:
5.1 "Eligible Liabilities" and "Special Deposits" have the meanings
given to them from time to time under or pursuant to the Bank of
England Act 1998 or (as may be appropriate) by the Bank of
England;
5.2 "Fees Rules" means the rules on periodic fees contained in the
FSA Supervision Manual or such other law or regulation as may be
in force from time to time in respect of the payment of fees for
the acceptance of deposits;
5.3 "Fee Tariffs" means the fee tariffs specified in the Fees Rules
under the activity group A.1 Deposit acceptors (ignoring any
minimum fee or zero rated fee required pursuant to the Fees Rules
but taking into account any applicable discount rate); and
5.4 "Tariff Base" has the meaning given to it in, and will be
calculated in accordance with, the Fees Rules.
6. In application of the above formulae, A, B, C and D will be included in
the formulae as percentages (i.e. 5 per cent will be included in the
formula as 5 and not as 0.05). A negative result obtained by
subtracting D from B shall be taken as zero. The resulting figures
shall be rounded to four decimal places.
7. Any determination by the Bank pursuant to this schedule in relation to
a formula, the Mandatory Cost or any amount payable to the Bank shall,
in the absence of manifest error, be conclusive and binding on all
Parties.
8. The Bank may from time to time, after consultation with the Principal
Borrower, determine and notify to all Parties any amendments which are
required to be made to this schedule in order to comply with any change
in law, regulation or any requirements from time to time imposed by the
Bank of England, the Financial Services Authority or the European
Central Bank (or, in any case, any other authority which replaces all
or any of its functions) and any such determination shall, in the
absence of manifest error, be conclusive and binding on all Parties.
58
SCHEDULE 4
Form of Accession Letter
To: BARCLAYS BANK PLC as Bank
From: [Subsidiary] and [Principal Borrower]
Dated: 200
Dear Sirs
[Principal Borrower] - [specify] FACILITY AGREEMENT DATED [DATE] 200
(the "Agreement")
1. We refer to the Agreement. This is an Accession Letter. Terms defined
in the Agreement has the same meaning in this Accession Letter unless
given a different meaning in this Accession Letter.
2. [Subsidiary] agrees to become a Borrower and to be bound by the terms
of the Facility Agreement as Borrower under the Guarantee Facility C
pursuant to clause of the Facility Agreement. [Subsidiary] is a
company duly incorporated under the laws of [name of relevant
jurisdiction]. Please confirm your agreement by signing and dating this
letter.
3. [Subsidiary's] administrative details are as follows:
Address:
Fax No:
Attention:
4. This Accession Letter is governed by English law.
[Principal Borrower] [Subsidiary]
By:__________________________ By: _________________________
Bank
We accept the Subsidiary acceding as a Borrower with effect from
By:__________________________
Bank
Date:...................................
59
SCHEDULE 5
Form of Compliance Certificate
To: BARCLAYS BANK PLC as Bank
From: [Principal Borrower]
Dated: 200
Dear Sirs
[Principal Borrower] - [specify] FACILITY AGREEMENT DATED [DATE] 200
(the "Agreement")
1. We refer to the Agreement. This is a Compliance Certificate. Terms
defined in the Agreement have the same meaning when used in this
Compliance Certificate unless given a different meaning in this
Compliance Certificate.
2. We confirm that: [Insert details of covenants to be certified]
3. [We confirm that no Default is continuing.]1
Signed: _______________________________ ____________________
Director of Director of
[Principal Borrower] [Principal Borrower]
[insert applicable certification language]2
------------------------------------
for and on behalf of
[name of auditors of the Principal Borrower]3
1 If this statement cannot be made, the certificate should identify any Default
that is continuing and the steps, if any, being taken to remedy it.
2 To be agreed with the Company's auditors and the Bank prior to signing the
Agreement.
3 Only applicable if the Compliance Certificate accompanies the audited
financial statements and is to be signed by the auditors. To be agreed with the
Company's auditors prior to signing the Agreement.
60
SCHEDULE 6
Group Structure
Part A
(Pre-Completion)
Country of Principal activity Class of Percentage of
Incorporation Shares held shares and
voting rights
Ebookers plc England Holding Co N/A N/A
Subsidiary undertakings of ebookers plc
La Compagnie Des Voyages SA France Travel agent Ordinary 100%
xxxxxxxx.xxx Germany Travel agent Ordinary 100%
Deutschland GmbH
xxxxxxxx.xxx SA Switzerland Travel agent Ordinary 100%
xxxxxxxx.xx Limited (formerly Ireland Travel agent Ordinary 100%
Flightbookers Limited)
Take Off Reisen GmbH (formerly TIBUR GmbH) Germany Travel agent Ordinary 100%
Oy ebookers Finland Ltd Finland Travel agent Ordinary 100%
xxxxxxxx.xx AS Norway Travel agent Ordinary 100%
Airways MIC AB Sweden Travel agent Ordinary 100%
Reisbureau Nova BV Netherlands Travel agent Ordinary 100%
Viajes Dimensiones SL Spain Travel agent Ordinary 100%
Callbookers Limited England Holding Co. Ordinary 100%
Mr Jet AB Sweden Travel agent Ordinary 100%
Gate Pacific Limited Mauritius Holding Co Ordinary 100%
Xxxxxxxxxxxxxx.xxx Ltd England Dormant Ordinary 100%
xxxxxxxx.xxx Ltd England Dormant Ordinary 100%
Xxxxxxxxxxxxxxxx.xxx Ltd England Dormant Ordinary 100%
Hotelbookers Ltd England Dormant Ordinary 100%
Xxxxxxxxxxxxx.xxx Ltd England Dormant Ordinary 100%
Cruisebookers Ltd England Dormant Ordinary 100%
Subsidiary undertakings owned by Airways
MIC AB
STT Airways AB Sweden Travel agent Ordinary 100%
Biljettakuten AB Sweden Dormant Ordinary 100%
STT Airways Net AB Sweden Dormant Ordinary 100%
STT Airways Business AB Sweden Dormant Ordinary 100%
xxxxxxxx.xx AB Sweden Dormant Ordinary 100%
Subsidiary undertakings owned by
Callbookers Limited
Flightbookers Ltd England Travel agent Ordinary 100%
Subsidiary undertakings owned by Mr Jet AB
Mr Jet OY Finland Dormant Ordinary 100%
Mr Jet OY Denmark Travel Agent Ordinary 100%
Mr Jet OY Norway Travel Agent Ordinary 100%
Subsidiary undertakings owned by Gate
Pacific Limited
Technovate Data and Services Private Ltd India Call Centre & Ordinary 100%
Back Office Services
61
Part B
------
(as at Completion Date)
-----------------------
EBOOKERS PLC
(CRN: 3818962)
|
------------------------------
| | 100%
| |
Group Structure as per Part A Travelbag Holdings Limited
(CRN:3957361)
|
|
|
-------------------
| |
| |
Bridge the world Travelbag PLC
Travel Service (CRN: 1434872)
Limited | 45.8%
(CRN:2332143) |
|
-----------------------
| |
| |
Travelbag Australia Prittelwell Pty
Pty Limited Limited
(Registered in Australia Dormant
with number 090912664)
In this Schedule 6 Dormant indicates a Dormant Group Company
62
SCHEDULE 7
Definitions and Interpretations
1. Definitions
In this Agreement:
"ABTA" means the Association of British Travel Agents;
"Accession Letter" means a document substantially in the form set out in
schedule 4 (Form of Accession Letter);
"Accountants Reports" means the reports (including the documents annexed
thereto), in the agreed terms, prepared by Deloitte & Touche on each of the
Acquisition and the Principal Borrower addressed to, amongst others, the
Bank;
"Acquired Assets" means the Target Shares to be acquired by the Principal
Borrower pursuant to the terms of the Acquisition Documents;
"Acquisition" means the acquisition of the Target Shares to be acquired by
the Principal Borrower pursuant to the terms of the Acquisition Documents;
"Acquisition Documents" means the sale and purchase agreement (the
"Acquisition Agreement"), tax deed and all other assignments, transfers,
instruments and documents pursuant to which the Acquisition is to be made
and to which, the Principal Borrower is a party, each in the agreed terms;
"Act" means the Companies Xxx 0000;
"Acting in Concert" has the meaning defined in the City Code on Takeovers
and Mergers;
"Advance" means, as the case may be, a Revolving Credit Advance and/or a
Term Loan B Advance;
"Annual Budget" means the annual budget to be provided by the Principal
Borrower to the Bank in accordance with clause 21.2 (Annual Budget) of this
Agreement in respect of each ARP;
"Approved Auditors" means any of Ernst and Young, KPMG,
PricewaterhouseCoopers or Deloitte & Touche or any amalgamation or successor
of any of them and "Approved Auditor" means any of them;
"ARP" shall have the meaning given to the expression "Accounting Reference
Period" by section 224 of the Act;
"Articles of Association" means, in relation to any member of the Group, its
articles of association;
"ATOL" means any air transport operators licence granted by the CAA;
"Audited Accounts" means the consolidated audited accounts of the Group or
the relevant member of the Group (as the case may be);
"Auditors" means Deloitte & Touche or any other Approved Auditor;
"Authorisation" means an authorisation, consent, approval, resolution,
licence, exemption, filing, notarisation or registration;
"Available Facility" means, as appropriate, the Available Revolving Credit
Facility A, the Available Term Loan Facility B and the
Available Guarantee Facility C;
"Available Guarantee Facility C" means the amount of the Guarantee Facility
C less the aggregate of (but without double counting):
63
(i) any cancellation or reduction of the Guarantee Facility C
pursuant to this Agreement;
(ii) the aggregate original amount (including actual and contingent
liabilities) of Bank Guarantees already made;
(iii) any relevant Bank Guarantee which has been requested by the
Principal Borrower in accordance with the terms of this
Agreement but not yet issued by the Bank;
"Available Revolving Credit Facility A" means the amount of the Revolving
Credit Facility A from time to time less the aggregate of:
(i) any cancellation or reduction of the Revolving Credit Facility
A pursuant to this Agreement;
(ii) the Revolving Loan;
(iii) any relevant Revolving Credit Advance which has been requested
by the Principal Borrower in accordance with the terms of this
Agreement but not yet advanced by the Bank;
"Available Term Loan Facility B" means the amount of the Term Loan Facility
B less the aggregate of (but without double counting):
(i) any cancellation or reduction of the Term Loan Facility B
pursuant to this Agreement;
(ii) the aggregate original principal amount of Term Loan B
Advances already made (whether or not the same remain
outstanding);
(iii) any relevant Term Loan B Advance which has been requested by
the Principal Borrower in accordance with the terms of this
Agreement but not yet advanced by the Bank;
"Bank Guarantee" means any guarantee, bond or indemnity issued
(including, but without limitation any deemed to have been issued
pursuant to clause 6.2.3) by the Bank in respect of the obligations of
the Group, under the Guarantee Facility C;
"Bank's Spot Rate of Exchange" means the Bank's spot rate of exchange for
the purchase of the relevant currency with Sterling in the London foreign
exchange market at or about 11.00am on a particular day;
"Borrower" means each of the Principal Borrower and any other Group Company
which has from time to time been approved in writing by the Bank and which
has executed and delivered to the Bank a deed of accession in the form of
schedule 4 and PROVIDED THAT such acceding Group Company shall only be
permitted to utilise the Guarantee Facility C and "Borrowers" means all or
any of them from time to time;
"Break Costs" means the amount (if any) by which:
(i) the interest in respect of any Facility (excluding Margin)
which the Bank should have received for the period from the
date of receipt of all or any part of its participation in a
Loan or Unpaid Sum to the last day of the current Interest
Period in respect of that Loan or Unpaid Sum, had the
principal amount or Unpaid Sum received been paid on the last
day of that Interest Period,
exceeds:
(ii) the amount which the Bank would be able to obtain by placing
an amount equal to the principal amount or Unpaid Sum received
by it on deposit with a leading bank in the Relevant Interbank
Market for a period starting on the Business Day following
receipt or recovery and ending on the last day of the current
Interest Period;
64
"Business Day" means a day (other than a Saturday or Sunday) on which banks
are open for general business in London;
"CAA" means the Civil Aviation Authority;
"Capital Expenditure" means any expenditure which should be treated as
capital expenditure in the Audited Accounts of the Group in accordance with
GAAP;
"Chargor" means any member of the Group which has entered into a Security
Document in favour of the Bank;
"Circular" means the circular in the agreed form to be issued in respect of
the Principal Borrower in respect of the Acquisition;
"Commitment Period" means:
(i) in relation to Revolving Credit Facility A, the period
beginning on the date of this Agreement and ending on 31
December 2007;
(ii) in relation to the Term Loan Facility B, the period
beginning on the date of this Agreement and ending on 28
February 2003;
"Completion" means completion of the Acquisition pursuant to the terms of
the Acquisition Documents;
"Completion Date" means the date of Completion;
"Compliance Certificate" means a certificate substantially in the form set
out in schedule 5 (Form of Compliance Certificate);
"Control" in the context of person(s) having control over a company, means a
person or persons Acting in Concert:
(i) controlling, or being able to control, the composition of that
company's board; or
(ii) in accordance with whose directions a majority of the members
of that company's board habitually act; or
(iii) legally, or ultimately or beneficially, holding (directly
or indirectly) more than 50% of that company's issued
equity share capital;
"Dangerous Substances" means any radioactive omissions or noise and any
natural or artificial substance (in whatever form) the generation, the
transportation, storage, treatment, use or disposal of which (whether alone
or in combination with any other substance) and (including without
limitation) any controlled, special, hazardous, toxic, radioactive or
dangerous substance or waste, gives rise to a risk of causing harm to man or
any other living organism or damaging the environment, public health or
welfare;
"Deed of Accession (Guarantee)" means the deed of accession to the Guarantee
(in the form set out in the Guarantee);
"Default" means an Event of Default or any event or circumstance specified
in schedule 9 (Events of Default) which (with the expiry of a grace period,
the giving of notice, the making of any determination under the Finance
Documents or any combination of any of the foregoing in each case as
provided in clause 25) would constitute an Event of Default;
"Dormant Group Company" means a Group Company which does not trade, is not
required to make entries into its accounting records in accordance with
section 221 Companies Act 1985 and does not hold or own any material assets
of an aggregate value in excess of (pound)10,000 as set out in the Group
Structure in schedule 6;
65
"Environmental Claim" means any and all administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, notices of
non-compliance or violation, investigations, proceedings, consent orders or
consent agreements relating in any way to any Environmental Laws or
Environmental Licences;
"Environmental Contamination" means each of the following and their
consequences:
(i) any release, omission, leakage or spillage of any Dangerous
Substance at or from any site owned, occupied or used by any
member of the Group or into any part of the environment; or
(ii) any accident, fire, explosion or sudden event in any site
owned, occupied or used by any member of the Group which is
directly or indirectly caused by or attributable to any
Dangerous Substance; or
(iii) any pollution of the environment;
"Environmental Laws" means and includes the following:
(i) all European Community, national, regional, or local statutes,
treaties or other laws or legislation concerning health,
safety or environmental matters which are applicable to the
business or to any real property owned, occupied, held or used
by the Group at or prior to the date hereof and all
regulations made thereunder together with any guidance,
circulars or codes of practice (insofar as they are capable of
having the force of law) including any amendment, re-enactment
or consolidation thereof (whether or not applicable at the
date hereof); and
(ii) judicial and administrative interpretation of each of the
foregoing;
"Environmental Licences" means any permit, licence, consent, approval and
other authorisation and the filing of any notification, report or assessment
required under any Environmental Law for the operation of the business of
any member of the Group;
"euro" or "(euro)" means the single currency introduced by Council
Regulation (EC) No. 974/98;
"Event of Default" means any event or circumstance specified as such in
clause 25 (Events of Default);
"Exchange Date" means the date the Acquisition Agreement is signed;
"Existing Barclays Indebtedness" means any Financial Indebtedness incurred
by any member of the Group to the Bank prior to the Completion Date;
"Facilities" means together the Revolving Credit Facility A, the Term Loan
Facility B and the Guarantee Facility C and "Facility" means any of them;
"Facility Office" means the office or offices through which the Bank will
perform its obligations under this Agreement;
"Finance Document" means this Agreement, the Bank Guarantees, any Accession
Letter, the Security Documents and any other document designated as such by
the Bank and the Principal Borrower as such documents may be amended,
varied, novated or restated from time to time;
"Financial Assistance Pre Press Release Letter" means the letter from
Deloitte & Touche to, inter alia, the Bank in the agreed terms;
"Financial Covenants" means the Financial Covenants set out in clause 22
(Financial Condition) (each a "Financial Covenant");
66
"Financial Indebtedness" means any indebtedness for or in respect of:
(i) monies borrowed;
(ii) any amount raised by acceptance under any acceptance credit
facility;
(iii) any amount raised pursuant to any note purchase facility or
the issue of bonds, notes, debentures, loan stock or any
similar instrument;
(iv) the amount of any liability in respect of any lease or hire
purchase contract which would, in accordance with GAAP, be
treated as a finance or capital lease;
(v) receivables sold or discounted (other than any receivables to
the extent they are sold on a non-recourse basis);
(vi) any amount raised under any other transaction (including any
forward sale or purchase agreement) having the commercial
effect of a borrowing;
(vii) any derivative transaction entered into in connection with
protection against or benefit from fluctuation in any rate or
price (and, when calculating the value of any derivative
transaction, only the market to market value shall be taken
into account);
(viii) any interest rate or currency swap, cap, ceiling, collar,
floor or option (whether over the counter or exchange traded)
or any similar hedging or treasury transaction;
(ix) any counter-indemnity obligation in respect of a guarantee,
indemnity, bond, standby or documentary letter of credit or
any other instrument issued by a bank or financial
institution; and
(x) the amount of any liability in respect of any guarantee or
indemnity for any of the items referred to in paragraphs (i)
to (viii) above;
"Funds Flow Statement" means the funds flow statement in the agreed terms
prepared by the Principal Borrower;
"GAAP" means in relation to the accounts of any company generally accepted
accounting principles in the United Kingdom;
"Group" means the Principal Borrower and its Subsidiaries for the time being
and "Group Company" or "member of the Group" shall mean any one of them as
the context so requires;
"Group Structure" mean the group structure set out in schedule 6;
"Guarantee" means the guarantee in the agreed terms dated on the Completion
Date entered into by the Principal Borrower, the Whitewash Companies,
Callbookers Limited and Flightbookers Limited and made in favour of the
Bank;
"Guarantee Facility C" means the guarantee facility made available to
the Borrowers pursuant to clause 5 (The Facilities) in the maximum
principal amount of (pound)10,000,000 or such other amount as the Bank
and the Principal Borrower may agree;
"Holding Company" means, in relation to a company or corporation, any other
company or corporation in respect of which it is a Subsidiary;
"IATA" means the International Air Transport Association;
"Insurance Report" means the report, in the agreed terms, on the Target
prepared by Stirling Insurance Brokers ;
"Intellectual Property" means all legal and/or equitable interest
(including, without limitation, the benefit of all licences in any part of
the world) of the Group, in or relating to registered and unregistered trade
marks and service marks, patents, registered designs, utility models,
applications for any of the foregoing, trade names, copyrights, design
rights, unregistered designs, inventions, confidential information,
know-how, registerable business names and any other rights of member of the
Group;
67
"Interest Period" means, in relation to a loan, each period determined in
accordance with clause 13 (Interest Periods) and, in relation to an Unpaid
Sum, each period determined in accordance with clause 12.3 (Default
interest);
"Investment Documents" means the Articles of Association of the Principal
Borrower, the Circular and the Placing Agreement;
"Joint Venture" means any joint venture entity, whether a company,
unincorporated firm, undertaking, joint venture, association, partnership or
other entity, in which any member of the Group has an interest from time to
time;
"Keystone Event of Default" means the following Events of Default:
(i) paragraph 1 of schedule 9;
(ii) paragraph 3.1 of schedule 9 to the extent that it results from
a breach of clause 24.14;
(iii) paragraph 4 of schedule 9, to the extent that it results from
breach of paragraphs 1, 2, 3 or 4 of schedule 8; and
(iv) paragraphs 6 to 8 of schedule 9 (inclusive) and paragraph 12
but on the basis that references therein to "Group" or "member
of a Group" include only those members of the Group and the
Target Group which are (or would be) a Material Subsidiary
(and when calculating the Financial Indebtedness of the
Target, any intra-group debt owed by it and to be repaid
pursuant to the Acquisition Documents shall be excluded);
"Legal Due Diligence Report" means the legal due diligence report on the
Target, in the agreed terms, prepared by Linklaters and addressed to,
amongst others, the Bank;
"Legal Reservations" means the principle that equitable remedies may be
granted or refused at the discretion of a court, the limitation of
enforcement by laws relating to bankruptcy, insolvency, liquidation,
re-organisation, court schemes, moratoria, administration and other laws
generally affecting the rights of creditors, the time barring of claims
under the Limitation Acts, the possibility that an undertaking to assume
liability for or indemnify a person against non-payment of stamp duty may be
void and defences of set-off or counterclaim, rules against contractual
penalties and similar principles;
"LIBOR" means, in relation to any Loan:
(i) the applicable Screen Rate; or
(ii) (if no Screen Rate is available for the currency or Interest
Period of that Loan) the arithmetic mean of the rates (rounded
upwards to four decimal places) as supplied to the Bank at its
request quoted by the Reference Banks to leading banks in the
London interbank market,
as of 11:00am on the first day of the relevant Interest Period for that Loan
or overdue amount for the offering of deposits in the currency of that Loan
and for a period comparable to the Interest Period for that Loan;
"List of Directors" means a list of the names of all of the directors of
each Whitewash Company holding office at the date of the giving of the
statutory declarations referred to in schedule 1 in respect of the Whitewash
Companies;
"LMA" means the Loan Market Association;
68
"Loans" means together the Revolving Loan and the Term Loan and "Loan" means
any of them;
"Management Team" means Xxxxx Xxxxxxx Xxxxx and Xxxxx Xxxxxxxx Xxxxxxxx and
"member of the Management Team" or "Manager" means any of them;
"Mandatory Cost" means the percentage rate per annum calculated by the Bank
in accordance with schedule 3 (Mandatory Cost formulae);
"Margin" means in relation to:
(i) Revolving Credit Facility A, 2.25 per cent per annum;
(ii) Term Loan Facility B, 2.25 per cent per annum;
(iii) Guarantee Facility C, 2.25 per cent per annum,
or such other amount as may be specified from time to time in accordance
with clause 12 of this Agreement;
"Margin Reduction Targets" means the Margin Reduction Targets described in
clause 12.4 (Reduction of Margin);
"Material Adverse Effect" means any event or circumstance which (when taken
alone or together with any then prevailing event or circumstance) is
reasonably likely in the opinion of the Bank (acting reasonably):
(i) to materially adversely affect the ability of any Obligor to
perform and comply with its payment obligations under the
Finance Documents; and/or
(ii) to materially adversely affect the business, assets or
financial condition of the Group taken as a whole; and/or
(iii) to result in a breach of any Financial Covenant; and/or
(iv) to adversely affect the legality, validity or enforceability
(subject to the Legal Reservations) of the Finance Documents;
"Material Contracts and Membership" means any ATOL and membership by the
Group with the CAA, ABTA and IATA;
"Material Intellectual Property" means any Intellectual Property which is
material to the business of the Group including, but without limitation, the
trading name of any Chargor;
"Material Overseas Subsidiary" means any Material Subsidiary whose
place of incorporation is outside the United Kingdom;
"Material Provisions" means the following clauses of this Agreement:
(i) clause 21.1 (Financial information);
(ii) clause 21.2 (Annual Budget);
(iii) clause 23.2 (Disposals);
(iv) clause 23.3 (Restrictions on Financial Indebtedness);
(v) clause 23.7 (Security);
(vi) clause 23.14 (Dividends on shares);
(vii) clause 23.15 (Redemptions and distributions - total prohibition);
(viii) in respect of the period up to the Completion Date only,
clause 24.14 (Conduct of Acquisition);
69
"Material Subsidiary" means:
(a) each Obligor; and
(b) each other Group Company:
(i) whose gross assets represent 5 per cent. or more of the
consolidated gross assets of the Group; or
(ii) whose EBITDA represent 5 per cent. or more of the
consolidated EBITDA of the Group; or
(iii) whose Net Worth represents 5 per cent. or more of the
consolidated Net Worth of the Group; or
(iv) whose gross turnover is at least equal to 5% of the
consolidated gross turnover of the Group,
in the case of paragraphs (i), (iii) and (iv) based on the
Monthly Management Accounts of the Group at the end of the
most recent Quarterly Period and in the case of paragraph
(ii), based on the most recent Audited Accounts, in each case
delivered pursuant to clause 21;
"Month" means a period starting on one day in a calendar month and ending on
the numerically corresponding day in the next calendar month, except that:
(i) (subject to paragraph (iii) below) if the numerically
corresponding day is not a Business Day, that period shall end
on the next Business Day in that calendar month in which that
period is to end if there is one or, if there is not, on the
immediately preceding Business Day;
(ii) if there is no numerically corresponding day in the calendar
month in which that period is to end, that period shall end on
the last Business Day in that calendar month; and
(iii) if an Interest Period begins on the last Business Day of a
calendar month, that Interest Period shall end on the last
Business Day in the calendar month in which that Interest
Period is to end.
The above rules will only apply to the last Month of any period;
"Monthly Management Accounts" means each set of consolidated management
accounts of the Group, prepared by the Principal Borrower as at the end of
each Month, such accounts being in a form and delivered in a manner to the
Bank as required by clause 21.1 (Financial Information);
"Net Proceeds" means:
(i) the consideration received by any member or members of the
Group in respect of the disposal to any person who is not a
member of the Group of all or any part of its business,
undertaking or assets (including the amount of any
intercompany debt repaid to continuing members of the Group)
but excluding a disposal permitted under clause 23.2
(Disposals) net of all Taxes applicable on, or to any gain
resulting from, the disposal and of all reasonable third party
costs, fees or expenses incurred by a Group Company in
arranging and effecting that disposal; and/or
70
(ii) the proceeds of any claim:
(a) against the Vendors under the relevant Acquisition
Documents after deduction of all Taxes applicable on,
and all reasonable costs, fees and expenses incurred
in connection with such claim (and including, without
limitation, any amount recovered under any insurance
policy referred to in the relevant Acquisition
Documents); and/or
(b) for loss or destruction of or damage to property of a
member of the Group under any insurance policy;
"Net Proceeds Account" means an interest bearing deposit account in the name
of the Principal Borrower with the Bank and charged to the Bank (such charge
to be in form and substance satisfactory to the Bank, acting reasonably)
into which certain Net Proceeds are to be paid pursuant to this Agreement;
"Non-Chargor" means any member of the Group which is not a Chargor;
"Non-Obligor" means any member of the Group which is not an Obligor;
"Obligation" means any obligation or liability of an Obligor to the Bank
under a Finance Document;
"Obligor" means a Borrower or a Chargor;
"Original Audited Accounts" means the consolidated audited accounts of the
Principal Borrower for the financial year ending 31 December 2001 and
delivered to the Bank in accordance with clause 7.1;
"Original Monthly Management Accounts" means the consolidated management
accounts of the Principal Borrower for the period ending 31 October 2002 and
delivered to the Bank in accordance with clause 7.1;
"Original Security Documents" means the Guarantee and the Share Pledges;
"Participating Member State" means any member state of the European
Communities that adopts or has adopted the euro as its lawful currency in
accordance with legislation of the European Community relating to Economic
and Monetary Union;
"Party" means a party to this Agreement;
"Permitted Bonds" means any of the bonds referred to in Schedule 10 together
with their replacements or substitutes and any other bonds issued by an
insurance company to ABTA, IATA or the CAA (or their equivalent in any other
jurisdiction) in respect of a Group Company's obligations under any Material
Contracts and Membership (or their equivalent in any other jurisdiction);
"Permitted Financial Indebtedness" means all Financial Indebtedness under
this Agreement, including, but not limited to, the Financial Indebtedness
permitted under clause 23.3;
"Placing Agreement" means the placing agreement and placing letters in
relation to the Principal Borrower in the agreed terms;
"Principal Borrower" means EBOOKERS PLC (CRN: 3818962);
"Pro Forma Financial Assistance Documents" means the documents relating to
financial assistance substantially in the agreed terms or with such
amendments thereto as the Bank may reasonably require in accordance with
best practice having regard to the circumstances prevailing at the time of
the intended execution of such documents;
71
"Property" means any other freehold or registered leasehold property held by
any Obligor from time to time;
"Qualifying Bank" means:
(i) a lender:
(a) which is a bank (as defined for the purpose of
section 349 of the Taxes Act) making an advance
under a Finance Document; or
(b) in respect of an Advance made under a Finance
Document by a person that was a bank (as defined for
the purpose of section 349 of the Taxes Act) at the
time that that Advance was made,
and which is within the charge to United Kingdom corporation
tax as respects any payments of interest made in respect of
that Advance; or
(ii) a bank or financial institution which is:
(a) a company resident in the United Kingdom for United
Kingdom tax purposes;
(b) a partnership each member of which is a company
resident the United Kingdom for United Kingdom tax
purposes; or
(c) a company not so resident in the United Kingdom which
carried on a trade in the United Kingdom through a
branch or agency and which brings into account
interest payable in respect of that advance in
computing its chargeable profits (within the meaning
given by section 11(2) of the Taxes Act); or
(iii) a Treaty Lender.
"Quarterly Period" means each period of three Months ending on the last
day of March, June, September and December in each ARP;
"Reference Bank" means Barclays Bank PLC;
"Relevant Interbank Market" means in relation to euro, the European
interbank market and, in relation to any other currency, the London
interbank market;
"Repeating Representations" means each of the representations set out
in schedule 8 (Representations) other than those in paragraphs 7
(Deduction of Tax), 8 (No filing or stamp taxes), 10 (Group Structure),
13 (Title to assets), 14 (Reports), 17 (Compliance with financial
assistance laws), 18 (List of Directors), 21 (Original Monthly
Management Accounts and Original Audited Accounts) and 24 (Disclosures)
of schedule 8;
"Reports" means together the Accountants Reports, the Insurance
Report, the Legal Due Diligence Report and the Working
Capital Report;
"Resolutions" means the ordinary and special resolutions of the Principal
Borrower regarding the approval of the Acquisition and the issuing of shares
in relation thereto in the agreed form;
"Revolving Credit Advance" means a principal amount made, or to be
made, available to the Principal Borrower under the Revolving Credit
Facility A, or, as the context may require, the outstanding principal
amount of any such advance;
72
"Revolving Credit Facility A" means the Revolving Credit Facility A, in
the maximum aggregate amount of (pound)10,000,000, granted to the
Principal Borrower by the Bank pursuant to clause 5 (The Facilities);
"Revolving Loan" means, at any time, the principal amount outstanding
at such time under the Revolving Credit Facility A;
"Rollover Loan" one or more Revolving Credit Advances:
(i) made or to be made on the same day that a maturing Revolving Credit
Advance is due to be repaid; and
(ii) the aggregate amount of which is equal to or less than the
maturing Revolving Credit Advance; and
(iii) made or to be made to the Principal Borrower for the purpose of
refinancing a maturing Revolving Credit Advance;
"Sale" means the sale of the whole or a substantial part of the
business, assets or undertaking of the Group;
"Scheduled Repayments" means repayments made to comply with the
scheduled repayments of Term Loan Facility B, as set out in clause 10.2
(Repayment of Term Loan B) of this Agreement;
"Screen Rate" means in relation to LIBOR, the British Bankers'
Association Interest Settlement Rate for the relevant currency and
period displayed on the appropriate page of the Telerate screen. If the
agreed page is replaced or service ceases to be available, the Bank may
specify another page or service displaying the appropriate rate after
consultation with the Principal Borrower;
"Security" means a mortgage, charge, pledge, lien or other security
interest securing any obligation of any person or any other Agreement
or arrangement having a similar effect;
"Security Documents" means together, the Original Security Documents,
each Deed of Accession (Guarantee) and such other documents which are
from time to time entered into by any member of the Group in favour of
the Bank as security for any and all moneys and liabilities due, owing
or incurred by any member of the Group to the Bank;
"Selection Notice" means a notice substantially in the form set out in
part 2 of schedule 2 (Requests) given in accordance with clause 13
(Interest Periods) in relation to any Loan;
"Service Agreements" means the service agreements in the agreed terms
made between the Principal Borrower and the Managers;
"Share Pledges" means the share pledges in the agreed terms dated on
the Completion Date and entered into by the Principal Borrower (in
respect of Target and Callbookers Limited), Target (in respect of the
other Whitewash Companies) and Callbookers Limited (in respect of
Flightbookers Limited), all in favour of the Bank and creating a
first-ranking security;
"Sterling" or "(pound)" means the lawful currency at the time being of
the United Kingdom;
73
"Subsidiary" means:
(i) a subsidiary within the meaning of section 736 of the Act; and
(ii) a subsidiary undertaking within the meaning of section 258 of the
Act;
"Target" means Travelbag Holdings Limited (CRN: 3957361);
"Target Group" means the Target and its Subsidiaries which pursuant to the
terms of the Acquisition Documents are to be acquired by the Principal
Borrower on the Completion Date;
"Target Shares" means the entire issued share capital of the Target;
"Tax" means any tax, levy, impost, duty or other charge or withholding
of a similar nature (including any penalty or interest payable in
connection with any failure to pay or any delay in paying any of the
same) and "Taxes" shall be construed accordingly;
"Taxes Act" means the Income and Corporation Taxes Xxx 0000;
"Term Loan" means, at any time, the aggregate principal amount of all
Term Loan B Advances outstanding at such time;
"Term Loan B Advance" means the principal amount made, or to be made,
available to the Principal Borrower under the Term Loan Facility B or,
as the context may require, the outstanding principal amount of any
such Advance;
"Term Loan Facility B" means the term loan facility B made available to
the Principal Borrower pursuant to clause 5 (The Facilities) in the
maximum principal amount of (pound)15,000,000;
"Termination Date" means:
(i) in relation to Revolving Credit Facility A, 31 January 2008; and
(ii) in relation to Term Loan Facility B, 31 January 2008;
"Transaction Documents" means the Acquisition Documents, the Finance
Documents and the Investment Documents;
"Treaty Lender" means a lender which:
(i) is treated as a resident of a Treaty State for the purposes of the
Treaty; and
(ii) does not carry on a business in the United Kingdom,
which has taken all necessary action under a Treaty to receive gross
payments of interest from the Borrowers without deduction on account of
Tax;
"Treaty State" means a jurisdiction having a doubt taxation agreement
(a "Treaty") with the United Kingdom which makes provision for full
exemption from tax imposed by the United Kingdom on interest;
"UK Chargor" means a Chargor incorporated in the UK;
74
"United Kingdom" or "UK" means the United Kingdom of Great Britain and
Northern Ireland;
"Unpaid Sum" means any sum due and payable but unpaid by an Obligor
under the Finance Documents;
"Utilisation" means a utilisation of a Facility;
"Utilisation Date" means the date of a Utilisation;
"Utilisation Request" means a notice substantially in the form set out
in part 1 of schedule 2 (Requests) requesting Utilisation of any
Facility;
"VAT" means value added tax as provided for in the Value Added Tax Xxx
0000 and any other tax of a similar nature;
"Vendors" means Port of Hercules Trustees Limited, Xxxxxx Bridge and the
other persons named as vendors in schedule 1 of the Acquisition Agreement;
"Whitewash Companies" means the Target, Bridge the World Travel Service
Limited and Travelbag PLC;
"Working Capital Report" means the working capital report in respect of
the Group prepared by Deloitte and Touche.
2. Construction
2.1 Unless a contrary indication appears, any reference in this Agreement
to:
2.1.1 the "Bank", any "Obligor" or any "Party" shall be construed so
as to include its permitted successors in title, permitted
assigns and permitted transferees;
2.1.2 the "assets" of a person shall be construed as a reference to
all or any part of its present and future business, undertaking,
property, shareholdings, assets and revenues (including any right
to receive revenues and uncalled capital);
2.1.3 the "European interbank market" means the interbank market for
euro operating in Participating Member States;
2.1.4 this Agreement, a Finance Document or any other agreement,
instrument or document includes references to such agreement,
instrument or document as amended, supplemented, novated,
re-enacted and/or restated;
2.1.5 "indebtedness" includes any obligation (present or future,
actual or contingent) for the payment or repayment of money,
whether present or future, actual or contingent and whether as
principal or surety;
2.1.6 "in the agreed terms" means as agreed between the Principal
Borrower and the Bank;
2.1.7 a "person" includes any person, individual, firm, company,
corporation, government, state or agency of a state or any
association, joint venture association, organisation,
75
institution, trust or partnership (whether or not having separate
legal personality) or two or more of the foregoing;
2.1.8 a "regulation" includes any regulation, rule, directive,
request, guideline, order, decree, other legislative measure,
code, circular, notice, demand or injunction (whether or not
having the force of law but if not having the force of law being
those with which it is customary for persons to whom it is
directed to comply, even if compliance is not mandatory) of any
Governmental Authority;
2.1.9 a provision of law includes references to such provision as
re-enacted, amended or extended and any subordinate legislation
made under it;
2.1.10 a time of day is a reference to London time;
2.1.11 clauses, paragraphs and schedules shall be construed as
references to clauses and paragraphs of, and schedules to, this
Agreement;
2.1.12 one gender includes all genders, and reference to the singular
includes the plural and vice versa;
2.1.13 "including" and "in particular" shall not be construed
restrictively but shall mean "including, without prejudice to the
generality of the foregoing" and "in particular, but without
prejudice to the generality of the foregoing";
2.1.14 "writing" includes telex and facsimile transmission legibly
received, or any electronic method of communication approved by
the Bank except in relation to any certificate, forecast, report,
notice, resolution or other document which is expressly required
by this Agreement to be signed, and "written" has a corresponding
meaning;
2.1.15 an outstanding amount of an Obligation at any time is the
maximum amount that is or may be payable by the Borrower in
respect of that Obligation at that time;
2.1.16 a Borrower "repaying" or "prepaying" an Obligation means:
(i) that Borrower providing cash cover for that Obligation;
(ii) the maximum amount payable under the Obligation being
reduced in accordance with its terms; or
(iii) the Bank being satisfied acting reasonably that it has no
further liability under that Obligation,
and the amount by which an Obligation is repaid or
prepaid under paragraph 2.1.20 (i) and (ii) above is
the amount of the relevant cash cover or reduction;
2.1.17 a Borrower providing "cash cover" for an Obligation means
a Borrower paying an amount in the currency of the
Obligation to an interest-bearing account in the name of the
Borrower and the following conditions are met:
76
(i) the account is with the Bank;
(ii) withdrawals from the account may only be
made to pay the Bank amounts due and payable
to it under this Agreement in respect of
that Obligation until no amount is or may be
outstanding under that Obligation; and
(iii) the Borrower has executed a security
document over that account, in form and
substance satisfactory to the Bank, creating
a first ranking security interest over that
account; and
2.1.18
(i) a certified document means such document
certified as genuine and in full force and
effect or, if a copy, a true, complete and
up-to-date copy of the original in each case
by a director of the party providing the
document or such other person as that party
may demonstrate to the Bank's satisfaction
has authority to provide such a certificate;
(ii) any certificate to be provided under this
Agreement or any Finance Document by an
Obligor shall mean a certificate in the
agreed terms, addressed to the Bank, dated
and signed by an authorised signatory of the
relevant Obligor;
2.1.19 The index and any headings, sub-headings or footnotes in this
Agreement are for ease of reference and shall be ignored in
construing this Agreement;
2.1.20 Unless a contrary indication appears, a term used in any other
Finance Document or in any notice given under or in connection
with any Finance Document has the same meaning in that Finance
Document or notice as in this Agreement;
2.1.21 A Default is "continuing" for the purposes of the Finance
Documents until it is expressly waived and any conditions of the
waiver fulfilled to the Bank's satisfaction or, where the
circumstances which caused it are capable of remedy, until those
circumstances have been remedied to the Bank's satisfaction and
the position is as it would have been if such Default had not
occurred (and in the case of late delivery of a document or
withdrawal of a claim whose existence constituted a Default, that
Default is not continuing once delivery or withdrawal has
occurred). Breach of a Financial Covenant shall be treated as
having been remedied if, when it is next tested under this
Agreement, or, if earlier, when demonstrated by an Obligor to the
Bank's absolute satisfaction that it has been remedied such
Financial Covenant is complied with;
2.1.22 Any consent, waiver or approval required from any party under a
Finance Document must be in writing and will be of no effect if
not in writing;
2.1.23 Where the expression "so far as the Principal Borrower/Group is
aware" (or any similar expression) is used in this Agreement:
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2.1.23.1 the knowledge of the Managers shall also be deemed to be
within the knowledge of the Principal Borrower; and
2.1.23.2 it shall be deemed to include an additional statement
that the Principal Borrower and the Managers shall have made
due, proper and careful enquiry
2.1.24 Covenants, undertakings, representations and warranties and
other obligations given by, or of, more than one Obligor are
joint and several;
2.1.25 Reference to a monetary sum in clauses 20 (Representations), 21
(Information undertakings), 23 (Negative undertakings), 24
(Positive obligations) and 25 (Events of Default) shall be deemed
to incorporate a reference to the foreign currency equivalent of
such sum;
2.1.26 Any certificate given by a director of a Principal Borrower to
the Bank under this Agreement shall be given by such director for
and on behalf of the Principal Borrower and without personal
liability to the Bank.
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SCHEDULE 8
Representations and Warranties
1. Status
1.1 Each member of the Group is a corporation, duly incorporated and
validly existing under the laws of its jurisdiction of
incorporation.
1.2 Each member of the Group has the power to own its assets and carry on
its business as it is being conducted.
1.3 Each member of the Group has all necessary governmental and
other consents, approvals, licences and authorities to carry
on its business as it is being conducted.
2. Binding obligations
Subject to the Legal Reservations, the obligations expressed to be
assumed by it in each Transaction Document are legal, valid, binding
and enforceable obligations.
3. Non-conflict with other obligations
The entry into and performance by each member of the Group of, and the
transactions contemplated by, the Transaction Documents to which it is
a party do not and will not conflict with:
3.1 any law or regulation applicable to each member of the Group;
3.2 the constitutional documents of each member of the Group; or
3.3 any material agreement or instrument binding upon each member of
the Group.
4. Power and authority
Each member of the Group has the power to enter into, perform and
deliver, and has taken all necessary action to authorise its entry
into, performance and delivery of, the Transaction Documents to which
it is a party and the transactions contemplated by those Transaction
Documents.
5. Validity and admissibility in evidence
All Authorisations required or desirable:
5.1 to enable each member of the Group lawfully to enter into,
exercise its rights and comply with its obligations in the
Transaction Documents to which it is a party; and
5.2 to make the Transaction Documents to which it is a party
admissible in evidence in its jurisdiction of incorporation,
have been obtained or effected and are in full force and effect, save
for the filing in the United Kingdom of the prescribed particulars of
the Security Documents pursuant to Section 395 of the Companies Xxx
0000 (as amended) and filing of the related statutory declarations, the
registration of certain of the Security Documents at the Land Registry
or the Land Charges Registry (as appropriate), the filing of
particulars of the relevant trade marks (if any) assigned or charged
under such Security Documents and registration of the transfers of the
shares which are the subject of the Security created by the Security
Documents, all of which filings and registrations will be effected
promptly (by solicitors acting for the Bank) after execution by the
relevant Obligor of the relevant Transaction Documents.
79
6. Governing law and enforcement
6.1 The choice of English law as the governing law of the Finance
Documents will be recognised and enforced in the jurisdiction of
incorporation of each Obligor.
6.2 Any judgment obtained in England in relation to a Finance
Document will be recognised and enforced in the jurisdiction of
incorporation of each Obligor.
7. Deduction of Tax
No Obligor is required under the law of its jurisdiction of
incorporation to make any deduction for or on account of Tax from any
payment it may make under any Finance Document.
8. No filing or stamp taxes
Under the law of the jurisdiction of incorporation of each Obligor it
is not necessary that the Finance Documents be filed, recorded or
enrolled with any court or other authority in that jurisdiction or that
any stamp, registration or similar tax be paid on or in relation to the
Finance Documents or the transactions contemplated by the Finance
Documents save for any registration of certain of the Security
Documents as contemplated by paragraph 5 above.
9. No default
9.1 No Event of Default is continuing.
9.2 No Event of Default would reasonably be expected to result from
the performance of any transaction contemplated by the
Transaction Documents or from the making of any Utilisation.
9.3 Save in respect of the winding-up of a Dormant Group Company, no
member of the Group has taken any corporate action nor have any
other steps been taken or legal proceedings (other than in
relation to proceedings which are discharged within 10 Business
Days) been started or (so far as the Obligors are aware)
threatened against any member of the Group for its winding-up,
dissolution, administration or re-organisation (whether by
voluntary arrangement, scheme of arrangement or otherwise save
for any solvent reorganisation previously approved by the in
writing) or for the enforcement of any Security over all or any
of its revenues or assets or for the appointment of a receiver,
administrator, administrative receiver, conservator, custodian,
trustee, or similar officer of it or of any or all of its assets
or revenues.
9.4 No other event transaction or circumstance is outstanding which
constitutes a default under any other Agreement or instrument
which is binding on any member of the Group or to which any
member of the Group's assets are subject which might have a
Material Adverse Effect.
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10. Group structure
As at the date hereof, the corporate structure of the Group is as set
out in Part A of schedule 6 (Group Structure) and as at the Completion
Date, the corporate structure of the Group will be as set out in Part B
of schedule 6 (Group Structure) of this Agreement and the companies
indicated therein as Dormant are Dormant Group Companies
Other share capital
No member of the Group has any interest in the share capital of any
other body corporate, save in relation to its Subsidiaries or as
permitted by the terms of this Agreement.
11. Financial Indebtedness and Security
No member of the Group has incurred any Financial Indebtedness and no
Security exists over the undertaking, property or assets of any of them
except, in either case, to the extent (i) permitted by the terms of
this Agreement or (ii) to be repaid or discharged on the Completion
Date.
12. Title to assets
All Acquired Assets will on the Completion Date be legally (subject to
payment of stamp duty in respect of the Target Shares and registration
as contemplated by clause 8.1 (Registration of share transfers)) and
beneficially owned by the Principal Borrower subject only to claims
under Security permitted by the terms of this Agreement.
13. Reports
13.1 All information supplied by or on behalf of the Principal
Borrower in connection with the preparation of the Reports was
true, complete and accurate in all material respects at the dates
supplied (or, if not, has subsequently been corrected and such
correction is reflected in the Reports) and there are no material
omissions from the Reports.
13.2 So far as the Principal Borrower is aware, all statements of
facts recorded in the Reports are true and accurate in all
material respects.
13.3 So far as the Principal Borrower is aware, no Report (or any part
thereof) is misleading in any material respect and there is no
expression of opinion, forecast or projection contained in any
Report, or any conclusion reached therein in relation to any
matter, which is not fair and reasonable in all material respects
and there is no such opinion, forecast, projection or conclusion
with which the Managers disagree in any material respect.
13.4 So far as the Principal Borrower is aware, no event has occurred
subsequent to the date of any Report which renders any facts
contained in such Report inaccurate or misleading in any material
respect, or which makes any of the opinions, projections,
forecasts or conclusions contained in that Report other than fair
and reasonable.
14. Monthly Management Accounts
The Monthly Management Accounts most recently delivered to the Bank
pursuant to clause 21.1 (Financial Information) have been prepared with
due care and attention and accurately reflect the financial position of
the Group (including, without limitation, disclosure of all of its
material liabilities (contingent or otherwise)) as at the date at which
such accounts were prepared.
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15. Audited Accounts
The Audited Accounts most recently delivered to the Bank pursuant to
clause 21.1 (Financial Information) have been prepared in accordance
with GAAP and present a true and fair view of the financial condition
of the Group for the relevant ARP.
16. Compliance with financial assistance laws
As far as the Finance Documents are concerned, all of the requirements
of sections 151 to 158 of the Act have been or will, prior to the
execution and delivery of such Finance Documents to the Bank, have been
satisfied to the extent necessary to ensure that the execution,
delivery and performance of such Finance Documents by the relevant
Obligors is lawful.
17. List of Directors
The List of Directors in respect of the Whitewash Company is true and
complete as at the date on which the directors of the Whitewash Company
swear the statutory declarations referred to in schedule 1.
18. Ranking
The payment obligations of each Obligor under the Finance Documents
rank at least pari passu to the claims of other present and future
indebtedness of such Obligor, except for obligations mandatorily
preferred by law applying to companies generally.
19. No litigation
Save as notified to the Bank, no member of the Group is involved in any
litigation, arbitration or other litigious or administrative
proceedings or disputes, which, if adversely determined, would be
reasonably likely to result in a liability (including costs) of more
than (pound)50,000 or a diminution in the value of its assets of more
than (pound)50,000 nor are there any circumstances reasonably likely to
give rise to any such proceedings.
20. Original Monthly Management Accounts and Original Audited Accounts
20.1 The Original Monthly Management Accounts have been prepared with
due care and attention and accurately reflect the consolidated
financial position of the Principal Borrower and its Subsidiaries
as at the date to which the same were prepared.
20.2 The Original Audited Accounts have been prepared in accordance
with GAAP and present a true and fair view of the consolidated
financial position of the Principal Borrower and its Subsidiaries
as at the date to which the same were prepared and since the date
to which such Original Audited Accounts were prepared there has
been no Material Adverse Effect.
82
21. Intellectual Property
21.1 Each member of the Group owns or has licensed to it all the
Intellectual Property which is required by it in order for it to
carry on its business in all respects as it is being conducted
and it does not, in carrying on its business, infringe any
Intellectual Property of any third party in any way in each case
where failure to do so would have a Material Adverse Effect.
21.2 All actions (including payment of all fees) required to maintain
any Intellectual Property which is material in the context of the
business of the Group in full force and effect, have been taken
in each case where failure to do so would have a Material Adverse
Effect.
22. Environmental Matters
22.1 Each member of the Group has obtained all requisite Environmental
Licences (if any) required for the carrying on its business as
currently conducted and have at all times complied with the terms
and conditions of such Environmental Licences and all other
applicable Environmental Laws which in each case, if not obtained
or complied with, would have a Material Adverse Effect. There are
to its knowledge no circumstances which may prevent or interfere
with such compliance in the future and which would have a
Material Adverse Effect.
22.2 There is no Environment Claim (whether in respect of any site
previously or currently owned or occupied by any member of the
Group or otherwise) pending or so far as it is aware threatened,
and there are no past or present acts, omissions, events or
circumstances that would be likely to form the basis of any
Environmental Claim (including, without limitation, any arising
out of the use, disposal, generation, storage, release, burial,
deposit or emission of any Dangerous Substance and whether in
respect of any site previously or currently owned or occupied by
any member of the Group or otherwise), against any member of the
Group which in each case is reasonably likely to be determined
against that member of the Group and which if so decided would
have a Material Adverse Effect.
23. Disclosures
The Principal Borrower has disclosed in writing to the Bank all facts
relating to the Acquisition, the Group and the Target Group which it
believes could reasonably be expected to affect the Bank's decision to
make the Facilities available.
24. Insurances
Each Group Company has in place insurances complying with the requirements
of this Agreement and no act, event or omission or default has occurred
which has rendered or would be reasonably likely to render any policies of
insurance taken out by it void or visible.
83
SCHEDULE 9
Events of Default
1. Non-payment
An Obligor does not pay on the due date any amount payable pursuant to
a Finance Document at the place at and in the currency in which it is
expressed to be payable unless:
1.1 the relevant Obligor demonstrates to the satisfaction of the Bank
that its failure to pay is caused by administrative or technical
error which was not the fault of any member of the Group; and
1.2 payment is made within 2 Business Days of its due date.
2. Financial covenants
Any requirement of clause 22.1 (Financial covenants) is not satisfied.
3. Other obligations
3.1 if there is a breach of any of the Material Provisions; or
3.2 if any Obligor fails to comply with any of the other provisions
of this Agreement (other than those referred to in paragraphs 1
(Non-payment) and 2 (Financial covenants) above) or any provision
of any other Finance Documents and, if, in the opinion of the
Bank, such non-compliance is capable of remedy, such failure is
not remedied to the satisfaction of the Bank within 14 days of
the earlier of (a) such Obligor becoming aware of such
non-compliance and (b) the Bank notifying that Obligor in writing
of such non-compliance.
4. Misrepresentation
Any representation or statement made or deemed to be made by an Obligor
in the Finance Documents or any other document delivered by or on
behalf of any Obligor under or in connection with any Finance Document
is or proves to have been incorrect or misleading in any material
respect when made or deemed to be made and if, in the opinion of the
Bank, such breach is capable of remedy, such breach is not remedied to
the satisfaction of the Bank within 14 days of the earlier of (a) such
Obligor becoming aware of such breach and (b) the Bank notifying that
Obligor in writing of such breach.
5. Cross default
5.1 Any Financial Indebtedness of any member of the Group is not paid
when due or within any originally applicable grace period.
5.2 Any Financial Indebtedness of any member of the Group is declared
to be or otherwise becomes due and payable prior to its specified
maturity as a result of an event of default (however described).
5.3 Any commitment for any Financial Indebtedness of any member of
the Group is cancelled or suspended by a creditor of any member
of the Group as a result of an event of default (however
described).
84
5.4 Any creditor of any member of the Group becomes entitled to
declare any Financial Indebtedness of any member of the Group due
and payable prior to its specified maturity as a result of an
event of default (however described).
5.5 No Event of Default will occur under this clause 8 if the
aggregate amount of Financial Indebtedness or commitment for
Financial Indebtedness falling within paragraphs 5.1 to 5.4 of
this schedule 9 is less than (pound)100,000.
6. Insolvency
6.1 A member of the Group (except a Dormant Group Company) is unable
or admits inability to pay its debts as they fall due, suspends
making payments on any of its debts or, by reason of actual or
anticipated financial difficulties, commences negotiations with
one or more of its creditors with a view to rescheduling any of
its indebtedness.
6.2 The value of the assets of any member of the Group (except a
Dormant Group Company) is less than its liabilities (taking into
account contingent and prospective liabilities to the extent
required by GAAP to be taken into account).
6.3 A moratorium is declared in respect of any indebtedness of any
member of the Group (except a Dormant Group Company).
7. Insolvency proceedings
Any corporate action, legal proceedings or other procedure or step is
taken (other than in relation to a petition which is discharged within
10 Business Days) in relation to:
7.1 the suspension of payments, a moratorium of any indebtedness,
winding-up, dissolution, administration or reorganisation (by way
of voluntary arrangement, scheme of arrangement or otherwise) of
any member of the Group (except a Dormant Group Company);
7.2 a composition, assignment or arrangement with any creditor of any
member of the Group (except a Dormant Group Company);
7.3 the appointment of a liquidator, receiver, administrator,
administrative receiver, compulsory manager or other similar
officer in respect of any member of the Group (except a Dormant
Group Company) or any of its assets; or
7.4 enforcement of any Security over any assets of any member of the
Group (except a Dormant Group Company).
8. Creditors' process
Any expropriation, attachment, sequestration, distress or execution in
respect of any assets other than the Property, of a member of the Group
(except a Dormant Group Company) which is not discharged within 10
Business Days.
9. Invalidity
Any of the Transaction Documents shall cease to be in full force and
effect in any respect or shall cease to constitute the legal, valid and
binding obligation of any party to it or, in the case of any Security
Document, fail to provide effective security in favour of the Bank over
the assets over which security is intended to be given by that Security
Document.
85
10. Unlawfulness
It is or becomes unlawful for an Obligor to perform any of its material
obligations under the Transaction Documents.
11. Repudiation
An Obligor repudiates a Transaction Document or evidences an intention
to repudiate a Transaction Document.
12. Equivalent events in other jurisdictions
If any event occurs, or proceedings are taken with respect to any
member of the Group (except a Dormant Group Company) in any
jurisdiction to which it is subject, or in which it has assets, which
has an effect equivalent to, or similar to, any one of the events
mentioned in paragraphs 6 (Insolvency) to 8 (Creditors Process) of this
schedule.
13. Cessation of business
If any member of the Group ceases to carry on its businesses, or shall
suspend all or a substantial part of its operations (other than a
Dormant Group Company on a solvent winding up or as previously
consented to by the Bank).
14. Material litigation
If any member of the Group becomes involved in or engaged in any
litigation, arbitration or legal proceedings of a litigious nature
which are reasonably likely (in the reasonable opinion of the Bank) to
be adversely determined, and which would, if adversely determined, have
a Material Adverse Effect.
15. Qualification of Audited Accounts
If the Auditors qualify their report on any Audited Accounts of the
Group in an adverse manner which the Bank considers material in the
context of the Finance Documents (but excluding qualifications that are
minor and of a technical nature).
16. Material adverse change
Any event or circumstance which (when taken alone or together with any then
prevailing event or circumstance) is reasonably likely in the opinion of the
Bank (acting reasonably):
(i) to materially adversely affect the ability of any Obligor to
perform and comply with its payment obligations under the
Finance Documents; and/or
(ii) to materially adversely affect the business, assets or
financial condition of the Group taken as a whole; and/or
(iii) to result in a breach of any Financial Covenant.
17. Material Contract
If any Material Contract is terminated.
86
18. Free Asset
If the Group or any Group Company fails to comply with its obligations
to the CAA to maintain the agreed level of Free Assets (as such term is
defined by and as any test of Free Assets is made by the CAA from time
to time) unless, if a breach has occurred, the CAA has waived the
breach or given a grace period for remedy of such breach and the grace
period is still outstanding.
87
SCHEDULE 10
Permitted Bonds
Joint bonds, provided by:
1. Coface S.A. on behalf of the Whitewash Companies to, among others, IATA
and CAA up to a maximum aggregate amount of (pound)1,160,000 and dated
9 September 2002;
2. De Montfort Insurance on behalf of the Whitewash Companies up
to a maximum aggregate amount of(pound)500,000 and dated
18 September 2002;
3. Hermes Credit and Guarantee plc on behalf of the Whitewash
Companies up to a maximum aggregate amount of(pound)1,200,000 and
dated 13 September 2002;
4. Travel & General Insurance Company Co Plc on behalf of the Whitewash
Companies up to a maximum aggregate amount of(pound)500,000
and dated 13 September 2002;
5. Lloyds TSB Bank plc on behalf of Travelbag PLC and Bridge the World
Travel Services Limited up to a maximum aggregate amount of
(pound)1,400,000 and dated 2 and 4 September 2002; and
6. ACE Insurance SA-NV on behalf of the Whitewash Companies up to a
maximum aggregate amount of(pound)3,050,000 and dated
17 September 2002.
88
SCHEDULE 11
Permitted Bank Accounts
------------------------------------------------------------------------------------------------------------------------------------
Owner Curr Acc No. A/C Name Bank Sort Code
------------------------------------------------------------------------------------------------------------------------------------
UK current accounts
Flightbookers USD 92996001 Flightbookers USD X/X Xxxxxxxx XXX
Flightbookers GBP 929967001 Flightbookers GBP Citibank TBA
European Countries
France
France Euro 12116f0004 La Compagnie Des Voyages Credit Commercial de France TBA
France Euro 00712131131 La Compagnie Des Voyages Banque de Baecque Beau TBA
France Euro NA La Compagnie Des Voyages Banque de Baecque Beau TBA
France Euro NA La Compagnie Des Voyages Banque de Baecque Beau TBA
Finland
Finland Euro 578007-2168124 Oy Xxxxx Tours Ltd OKO Bank TBA
Finland Euro 800012-643535 Oy Xxxxx Tours Ltd Sampo Bank TBA
Finland Euro 157230-362442 Oy Xxxxx Tours Ltd Nordea TBA
Finland Euro Deposit Oy Xxxxx Tours Ltd OKO Bank TBA
Finland Euro 578007-50204013 Oy Xxxxx Tours Ltd OKO Bank TBA
Finland Euro 578007-60967773 Oy Xxxxx Tours Ltd OKO Bank TBA
Also Snet Euro 405511-20046317 Oy Xxxxx Tours Ltd Aktia Sparbank TBA
89
------------------------------------------------------------------------------------------------------------------------------------
Owner Curr Acc No. A/C Name Bank Sort Code
------------------------------------------------------------------------------------------------------------------------------------
Switzerland
Switzerland CHF 024029171700G ebookers.comSA UBS TBA
Switzerland CHF 024029171701P ebookers.comSA UBS TBA
Switzerland GBP 021029171770Y ebookers.comSA UBS TBA
Switzerland CHF 17-202760/4 ebookers.comSA UBS TBA
Switzerland CHF 240291.717.N1 ebookers.comSA UBS TBA
Holland
Holland Euro 00.00.00.000 Nova ABN AMRO TBA
Holland Euro 00.00.00.000 Nova ABN AMRO TBA
Holland Euro 00.00.00.000 Nova ABN AMRO TBA
Holland Euro 00.00.00.000 Nova ABN AMRO TBA
Holland Euro 00.00.00.000 Nova ABN AMRO TBA
Holland Euro 00.00.00.000 Nova ABN AMRO TBA
Holland Euro 00.00.00.000 Nova ABN AMRO TBA
Holland Euro 54.82.61.199 Nova ABN AMRO TBA
Holland Euro 00.00.00.000 Nova ABN AMRO TBA
Holland Euro 00.00.00.000 Nova ABN AMRO TBA
Holland USD 00.00.00.000 Nova ABN AMRO TBA
Holland Euro 00.00.00.000 Nova ABN AMRO TBA
Norway
Norway NOK 71310554965 ebookers NO AS Den norkes Bank TBA
Norway NOK 70320595396 ebookers NO AS Den norkes Bank TBA
Norway NOK 50056627453 ebookers NO AS Den norkes Bank TBA
90
------------------------------------------------------------------------------------------------------------------------------------
Owner Curr Acc No. A/C Name Bank Sort Code
------------------------------------------------------------------------------------------------------------------------------------
Sweden
Sweden SEK 30011706767 Mr Jet AB Nordea TBA
Sweden SEK 52221001656 Mr Jet AB Skandinaviska Enskilda Banken TBA
Sweden SEK 52221034457 Mr Jet AB Skandinaviska Enskilda Banken TBA
Sweden SEK 41541038149 STT Airways AB Xxxxxx XXX
Xxxxxx XXX 00000000000 Xxxxxxxxxxxxxx XX STT Airways Nordea TBA
Sweden SEK 41541038173 Business AB STT Airways Net Nordea TBA
Sweden SEK 41541039323 AB Nordea XXX
Xxxxxx XXX 00000000000 XXX Xxxxxxx XX Xxxxxx XXX
Xxxxxx SEK 41541037770 Ebookers AB Mr Jet Oy Nordea TBA
Sweden DKK 5295-0000000000 Denmark SEB Denmark XXX
Xxxxxx XXX 00000000000 Xx Xxx Xx - Xxxxxx SEB Norway TBA
Sweden NOK 97500614238 Mr Jet Oy - Norway SEB Norway TBA
Sweden NOK 97500803413 Mr Jet Oy - Norway SEB Norway TBA
Sweden NOK 97500618284 Mr Jet Oy - Norway SEB Norway TBA
Sweden SEK 8327-9673.489.275-6 Mr Jet Oy - Norway SEB Norway TBA
Sweden SEK XX 0 00 00-0 Xxxxxx Xxxx Account Post Office TBA
Germany
Germany Euro 7509607 ebookers.comDeutschland Gmbh Sparkasse TBA
Germany TOR Euro 224436 Take Off Reisen GmbH Deutsche Bank TBA
Spain
Spain Euro 601428996 Viajes Dimensiones SL Banco Popular TBA
Spain Euro 601445986 Viajes Dimensiones SL Banco Popular TBA
Spain USD 623014189 Viajes Dimensiones SL Banco Popular TBA
91
------------------------------------------------------------------------------------------------------------------------------------
Owner Curr Acc No. A/C Name Bank Sort Code
------------------------------------------------------------------------------------------------------------------------------------
India
India 522-0-517677-8 Current account Standard Chartered TBA
India 272000014768 Current account HDFC Bank TBA
India 0-000000-000 Current account Citibank TBA
Ireland
Ireland-EB Euro 79268121 xxxxxxxx.xx euro C/A Bank of Ireland TBA
Ireland-EB Euro 21197818 xxxxxxxx.xx Bank of Ireland TBA
Ireland-FB Euro 19140064 xxxxxxxx.xx euro C/A Ulster NatWest TBA
Ireland-FB Euro 19140221 xxxxxxxx.xx euro C/A Ulster NatWest TBA
Ireland-FB Euro 95579608 xxxxxxxx.xx (Salaries) Bank of Ireland TBA
Ireland-FB Euro 5076554101 Ulster 5076554101 Bank acct 3 GBP Ulster NatWest TBA
92
The Principal Borrower
SIGNED by /S/XXXXX XXXXXXX XXXXX
for and on behalf of
EBOOKERS PLC
FAO: The Chief Finance Officer
and the Company Secretary
Ebookers PLC
00 Xxxxxxxxxx Xxxxxx
Xxxxxx
XX0X 0X)X
Facsimile No: 020 7489 2207
The Bank )/S/XXXX BOX
)
)
SIGNED by )
for and on behalf of
BARCLAYS BANK PLC in the presence of:
FAO: Xxxx Box
Barclays Bank PLC
00 Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Tel: 000 0000 0000
Fax: 000 0000 0000