Attached files
| file | filename |
|---|---|
| 8-K - BELL MICROPRODUCTS INC | bm20091222_8-k.htm |
| EX-10.3 - EXECUTIVE EMPLOYMENT AGREEMENT BETWEEN THE COMPANY AND RICHARD J. JACQUET DATED DECEMBER 22, 2009. - BELL MICROPRODUCTS INC | bm20091222_8kex103.htm |
| EX-10.2 - FEE LETTER DATED DECEMBER 18, 2009. - BELL MICROPRODUCTS INC | bm20091222_8kex102.htm |
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Dated 18
December 2008
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(1) BELL
MICROPRODUCTS LIMITED and BELL MICROPRODUCTS EUROPE EXPORT LIMITED as
Borrowers
(2) BELL
MICROPRODUCTS EUROPE (HOLDINGS) B.V.
(3) BM
EUROPE PARTNERS C.V.
(4) BELL
MICROPRODUCTS EUROPE B.V.
(5) BANK
OF AMERICA, NATIONAL ASSOCIATION as Arranger, Issuer, Swingline Lender,
Agent and Security Trustee
(6) THE
COMPANIES NAMED HEREIN as Guarantors
(7) CERTAIN
BANKS AND FINANCIAL INSTITUTIONS as Lenders
(8) ENTERPRISE
FINANCE EUROPE (UK) LIMITED as Enterprise
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TENTH
SUPPLEMENTAL AGREEMENT
in
relation to a syndicated credit agreement dated 2 December 2002 (as
amended and/or restated from time to time)
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CMS
Cameron McKenna LLP
Mitre
House
160
Aldersgate Street
London
EC1A 4DD
T
+44(0)20 7367 3000
F
+44(0)20 7367 2000
Ref:
EDR/0Z2950.01608
Table
of Contents
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1.
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Definitions
and Interpretation
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5
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Definitions
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5
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Incorporation
of Defined Terms
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5
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Certain
References
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5
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2.
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Amendment
and restatement of the Credit Agreement
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5
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3.
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Effective
Date and Longstop date
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5
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Effective
Date
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5
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Long
Stop Date
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6
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Completion
Conditions
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6
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4.
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Representations
and warranties
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6
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Representations
and warranties of the Obligors
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6
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Representations
and warranties in Credit Agreement
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6
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Corporate
Power
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6
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No
conflict with other obligations
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6
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Consents
obtained
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7
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Constitutional
Documents
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7
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No
filings required
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7
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Repetition
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7
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5.
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Further
assurance and confirmation
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7
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Further
assurance
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7
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Construction
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7
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6.
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Affirmation
and confirmation
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8
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Affirmation
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8
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Confirmation
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8
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Confirmation
by Guarantors
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8
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Confirmation
by BMEH
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8
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7.
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Fees,
costs and expenses
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8
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Renewal
Fee
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8
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Transaction
Expenses
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8
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Preservation
and enforcement of rights
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8
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Stamp
duties etc.
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9
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8.
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Miscellaneous
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9
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Counterparts
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9
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Designation
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9
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Incoroporation
of terms
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9
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Schedule
1
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10
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The
Guarantors
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10
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Schedule
2
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11
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The
Lenders
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11
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Schedule
3
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12
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Conditions
Precedent
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12
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THIS SUPPLEMENTAL AGREEMENT is
dated 18th December 2009 and made BETWEEN:
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(1)
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BELL MICROPRODUCTS LIMITED
(previously named IDEAL HARDWARE LIMITED)
(Company Number: 03969946) whose registered office is at Cox Lane,
Chessington, Surrey, KT9 1SJ (“BMUK”) and BELL MICROPRODUCTS EUROPE
EXPORT LIMITED (Company Number: 03711148) whose registered office
is at Cox Lane, Chessington, Surrey, KT9 1SJ (“BMEE”) (each a “Borrower” and together
the “Borrowers”);
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(2)
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BELL MICROPRODUCTS EUROPE
(HOLDINGS) B.V. a private company with limited liability (besloten vennootschap met
beperkte aansprakelijkheid) incorporated under the laws of the
Netherlands, having its official seat in Almere, the Netherlands a006Ed
its registered office at Veluwezoom 42-50, 1327 AH Almere, the Netherlands
and registered in the Commercial Register under number 39087200 (“BMEH”);
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(3)
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BM EUROPE PARTNERS C.V.
a limited partnership (commanditaire
vennootschap) established under the laws of the Netherlands, having
its official seat in Almere, the Netherlands and its registered office at
Veluwezoom 42-50, 1327 AH Almere, the Netherlands and registered in the
Commercial Register under number 04065637 (“BMEP”);
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(4)
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BELL MICROPRODUCTS EUROPE
B.V. a private company with limited liability (besloten vennootschap met
beperkte aansprakelijkheid) incorporated under the laws of the
Netherlands, having its official seat in Emmen, the Netherlands and its
registered office at Veluwezoom 42-50, 1327 AH Almere, the Netherlands and
registered in the Commercial Register under number 04064633 (“BMEBV”);
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(5)
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BANK OF AMERICA, NATIONAL
ASSOCIATION acting through its London branch at 5 Canada Square,
London, E14 5AQ in its capacity as arranger (the “Arranger”), in its
capacity as agent for the Lenders (the “Agent”), in its
capacity as the Lender making Swingline Loans (the “Swingline Lender”), in
its capacity as the Lender issuing any Letter of Credit or Guarantee (the
“Issuer”), in its
capacity as security trustee under the Security Documents (the “Security
Trustee”);
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(6)
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THE COMPANIES named in
Schedule 1 (The
Guarantors) (the “Guarantors”);
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(7)
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THE BANKS AND FINANCIAL
INSTITUTIONS named in Schedule 2 (The Lenders) (the “Lenders”);
and
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(8)
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ENTERPRISE FINANCE EUROPE (UK)
LIMITED (Company Number: 2036205) (as Enterprise (“Enterprise”)).
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WHEREAS:
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(A)
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By
a syndicated credit agreement (as amended and restated, the “Credit Agreement”) dated
2 December 2002 between (1) BMUK (then called “Ideal Hardware Limited”)
and Bell Microproducts Europe Export Limited (as Original Borrowers), (2)
BM Europe Partners C.V., (3) Bell Microproducts Europe B.V., (4) Bank of
America, National Association (as Arranger, Issuer, Swingline Lender,
Agent and Security Trustee) and (5) certain banks and financial
institutions (as Lenders), the Lenders agreed to make available to the
Original Borrowers a revolving credit facility of up to
£75,000,000.
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(B)
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By
supplemental agreements (together, the "Supplemental
Agreements") dated 3 December 2003, 22 September 2004, 15 December
2004, 17 March 2005, 16 August 2005, 20 October 2005, 31 January 2006, 2
January 2007 and 21 May 2008 and amendment letters dated 30 January 2008
and 18 June 2009 between, among others, the parties to the Credit
Agreement, the parties to the Credit Agreement agreed to amend and/or
restate the Credit Agreement on the terms respectively set out
therein.
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(C)
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This
Supplemental Agreement is entered into in order to reflect the terms and
conditions on and subject to which certain further amendments are to be
made in respect of the Credit
Agreement.
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IT
IS AGREED THAT:
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1.
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Definitions
and interpretation
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Definitions
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1.1
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In
this Supplemental Agreement, unless the context otherwise
requires:
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“Fee letter (2009)” means any
letter or letters dated on or about the date of this Supplemental Agreement
between the Arranger and BMUK setting out any of the fees referred to in Clause
7 (Fees, costs and
expenses); and
“Restated Agreement” means the
Credit Agreement, as amended and restated by this Deed, the terms of which are
set out in Exhibit “A” (Form
of Restated Agreement);
“Supplemental
Agreement”: this tenth supplemental agreement.
Incorporation
of defined terms
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1.2
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Terms
defined in the Credit Agreement shall, unless otherwise defined in this
Supplemental Agreement, have the same meaning when used in this
Supplemental Agreement and the principles of construction set out in
Clauses 1.2 to 1.13 (inclusive) of the Credit Agreement shall have effect,
mutatis mutandis,
as if set out in this Supplemental Agreement in
full.
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Certain
references
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1.3
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In
this Supplemental Agreement references to Clauses, Schedules and the
Exhibit are, unless the context otherwise requires, to be construed as
references to the clauses of, and schedules and the exhibit to, this
Supplemental Agreement and references to this Supplemental Agreement
include its schedules and the
exhibit.
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Headings
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1.4
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Clause
headings and the table of contents are inserted for convenience of
reference only and shall be ignored in the interpretation of this
Supplemental Agreement.
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2.
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Amendment
and restatement of the Credit
Agreement
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2.1
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With
effect from the Effective Date, the Credit Agreement shall be amended and
restated so that it shall be read and construed for all purposes as set
out in Exhibit “A” (Form
of Restated Agreement).
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3.
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Effective
Date and Longstop Date
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Effective
Date
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3.1
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This
Deed shall take effect on and with effect from the date (the “Effective Date”) on
which the Agent notifies the Borrower that all of the following conditions
shall have been satisfied:
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3.1.1
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the
Agent has received each of the documents listed in Schedule 3 (Conditions Precedent) in form and
substance satisfactory to the
Agent;
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3.1.2
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the
Agent is satisfied that no Default has occurred and is continuing or would
occur by reason of the Effective Date
occurring;
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3.1.3
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the
Agent is satisfied that none of the representations and warranties in
Clause 7 (Representations and
Warranties) are untrue or incorrect as at such date as if made on
such date with respect to the facts and circumstances existing at such
date; and
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3.1.4
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the
Agent has received payment of the fees and expenses referred to in Clause
7 (Fees, costs and
expenses) to the extent that invoices in respect of the same shall
have been rendered at that date.
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Long
Stop Date
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3.2
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If
the Effective Date has not occurred on or before 31 December 2009 then the
provisions of this Deed (other than Clause 7 (Fees, Costs and
Expenses) and Clause 11 (Miscellaneous)) shall
thereupon cease to have effect.
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Completion
Conditions
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3.3
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The
Agent shall not give notice of the occurrence of the Effective Date under
Clause 4.1 (Effective
Date) (unless expressly instructed in writing by the Majority
Lenders to do so) if, on the Effective Date, the Agent has received actual
knowledge that an Event of Default has occurred and is continuing or that
any of the representations and warranties in Clause 5 (Representations and
Warranties) are untrue or incorrect in any material respect as at
such date as if made on such date with respect to the facts and
circumstances existing at such
date.
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4.
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Representations
and warranties
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Representations
and warranties of the Obligors
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4.1
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Each
Obligor represents and warrants (in respect of itself and each other
Obligor) to and for the benefit of each other party to this Supplemental
Agreement that:
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Representations
and warranties in Credit Agreement
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4.1.1
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the
representations and warranties set out in Clauses 14.1 (General Representations and
Warranties) and 14.2 (Accounts) of the Credit
Agreement are true and correct as if made at the date of this Supplemental
Agreement and on the Effective Date with reference to the facts and
circumstances existing at each such
date;
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Corporate
power
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4.1.2
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it
has power to execute, deliver and perform its obligations under this
Supplemental Agreement; all necessary corporate, shareholder and other
action has been taken to authorise the execution, delivery and performance
of the same and this Supplemental Agreement constitutes valid and legally
binding obligations of such Obligor enforceable in accordance with their
respective terms;
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No
conflict with other obligations
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4.1.3
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the
execution and delivery of, the performance of its obligations under, and
compliance with the provisions of this Supplemental Agreement by such
Obligor will not (i) contravene any existing applicable law, statute, rule
or regulation or any judgment, decree or permit to which such Obligor is
subject, (ii) to an extent or in a manner which has or could have a
material adverse effect on it, conflict with, or result in any breach of
any of the terms of, or constitute a default under, any agreement or other
instrument to which such Obligor is a party or is subject or by which it
or any of its property is bound, or (iii) contravene or conflict with any
provision of such Obligor's Memorandum and Articles of Association,
Articles of Incorporation/Bye-laws/Statutes or other constitutional
documents;
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Consents
obtained
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4.1.4
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every
consent, authorisation, licence or approval of, or registration with or
declaration to, governmental or public bodies or authorities or courts
required by such Obligor to authorise, or required by such Obligor in
connection with, the execution, delivery, validity, enforceability or
admissibility in evidence of this Supplemental Agreement or the
performance by such Obligor of its obligations under this Supplemental
Agreement has been obtained or made and is in full force and effect and
there has been no default in the observance of the conditions or
restrictions (if any) imposed in, or in connection with, any of the
same;
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Constitutional
Documents
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4.1.5
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there
has been no change to the constitutional documents of any Obligor since
the same were last delivered to the
Agent;
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No
filings required
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4.1.6
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it
is not necessary to ensure the legality, validity, enforceability or
admissibility in evidence of this Supplemental Agreement that it or any
other instrument be notarised, filed, recorded, registered or enrolled in
any court, public office or elsewhere in the jurisdiction in which such
Obligor is incorporated or has its principal place of business or that any
stamp, registration or similar tax or charge be paid in any such
jurisdiction on or in relation to this Supplemental Agreement and this
Supplemental Agreement is in proper form for its enforcement in the courts
of such jurisdiction.
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Repetition
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4.2
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The
representations and warranties in Clause 4.1 (Representation and Warranties
of the Obligors) shall be deemed to be repeated by each Obligor on
each date on which a Loan is requested or is to be made (or, as the case
may be, a Letter of Credit is issued or requested to be issued) and on
each date on which a Prepayment is made under an Invoice Discounting
Agreement as if made with reference to the facts and circumstances
existing on each such date.
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5.
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Further
assurance and construction
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Further
assurance
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5.1
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Each
Obligor shall, at the request of the Agent and at its own expense, do all
such acts and things necessary to give effect to this Supplemental
Agreement.
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Construction
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5.2
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With
effect from the Effective Date, the Credit Agreement and this Supplemental
Agreement shall be read and construed as a single instrument and
references to the Credit Agreement in the Credit Agreement and each of the
Finance Documents shall be read and construed as references to the Credit
Agreement as amended by this Supplemental
Agreement.
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6.
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Affirmation
and confirmation
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Affirmation
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6.1
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Each
Obligor confirms to the Beneficiaries that, unless specifically amended in
accordance with the terms of this Supplemental Agreement, each Finance
Document to which it is a party will remain in full force and effect
without novation and will continue to constitute its legal, valid and
binding obligations enforceable in accordance with their respective terms
and each of the security interests created by the Security Documents will
continue in full force and effect.
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Confirmation
by Guarantors
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6.2
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Each
Guarantor confirms that its guarantee obligations under Clause 13 (Guarantee) of the
Credit Agreement, Clause 7 (Guarantee) of the
Supplemental Agreement dated 15 December 2004 or, as the case may be, the
Security Documents shall remain in full force and effect without novation
in respect of the Obligors’ obligations under the Credit Agreement and
under each other Finance Document.
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Confirmation
by BMEH
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6.3
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BMEH
further confirms that its obligations under the Credit Agreement shall
remain in full force and effect in respect of the Obligors’ obligations
under the Credit Agreement and under each other Finance
Document.
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7.
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Fees,
costs and expenses
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Fees
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7.1
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BMUK
shall pay to the Arranger an amendment arrangement fee in the amount and
at the time agreed in the Fee
Letter.
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7.2
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BMUK
shall pay to the Agent for the account of the Lenders an amendment fee of
£50,000 on the Effective Date.
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Transaction
Expenses
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7.3
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BMUK
shall, from time to time on demand of the Agent, reimburse the Agent for
all costs and expenses (including legal fees) together with any VAT
thereon incurred by the Agent, the Security Trustee or the Receivables
Purchaser in connection with the negotiation, preparation and execution of
this Supplemental Agreement, any other document referred to in this
Supplemental Agreement and the completion of the transactions contemplated
by this Supplemental Agreement.
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Preservation
and enforcement of rights
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7.4
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Each
Obligor shall, from time to time on demand of the Agent, reimburse the
Beneficiaries for all costs and expenses (including legal fees) on a full
indemnity basis together with any VAT thereon incurred in or in connection
with the preservation and/or enforcement of any of the rights of the
Beneficiaries under this Supplemental Agreement and any other document
referred to in this Supplemental
Agreement.
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Stamp
duties etc.
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7.5
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Each
Obligor shall pay all stamp, registration and other taxes to which this
Supplemental Agreement, any other document referred to in this
Supplemental Agreement or any judgement given in connection with this
Supplemental Agreement is or at any time may be subject and shall, from
time to time on demand of the Agent, indemnify the Beneficiaries against
any liabilities, costs, claims and expenses resulting from any failure to
pay or any delay in paying any such
tax.
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8.
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Miscellaneous
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Counterparts
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8.1
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This
Supplemental Agreement may be executed in any number of counterparts, all
of which taken together shall constitute one and the same
instrument.
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Designation
|
8.2
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This
Supplemental Agreement is hereby designated a Finance
Document.
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Incorporation
of terms
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8.3
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The
provisions of clause 32 (Notices) and clause 35
(Law and
Jurisdiction) of the Credit Agreement shall be incorporated in this
Supplemental Agreement as if set out in full, mutatis mutandis, in
this Supplemental Agreement and as if references in such clauses to “this
Agreement” were references to this Supplemental
Agreement.
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Enterprise
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8.4
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The
parties to this Supplemental Agreement hereby acknowledge the transfer of
the entire Commitment (and Commitment, as defined in the funding agreement
dated 15 December 2004 between, inter alia, Enterprise and Bank of
America, N.A. (the “Funding Agreement”)) of
Enterprise to The Governor and Company of the Bank of Ireland, trading as
Bank of Ireland Commercial Finance (the “Transfer”). To the
extent the Transfer has not been effected by operation of law, the parties
agree that it shall be deemed effected by this Deed with effect from the
date of this Deed, as if a Transfer Certificate and a Substitution
Certificate (as defined in the Funding Agreement) together effecting the
Transfer had been duly executed and delivered in accordance with the
Credit Agreement.
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IN WITNESS of which this
Supplemental Agreement has been executed and delivered by or on behalf of the
parties on the date stated at the beginning of this Supplemental
Agreement.
Schedule
1
The
Guarantors
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Name
|
Company
Number
|
|
Bell
Microproducts Limited
|
03969946
|
|
Bell
Microproducts Europe Export Limited
|
03711148
|
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Bell
Microproducts Europe B.V.
|
4064633
|
|
Bell
Microproducts S.a.r.l (a company incorporated under the laws of
France)
|
43474497500013
|
|
Bell
Microproducts BVBA (a company incorporated under the laws of
Belgium)
|
0474128872
|
|
Bell
Microproducts S.r.l (a company incorporated under the laws of
Italy)
|
13456670150
|
|
Bell
Microproducts (US) Limited
|
05305904
|
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Bell
Microproducts Europe (Holdings) BV
|
39087200
|
|
Bell
Europe Partners CV
|
Schedule
2
The
Lenders
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1.
|
Bank
of America, National Association
|
|
2.
|
Lloyds
TSB Commercial Finance Limited
|
|
3.
|
The
Governor and Company of the Bank of Ireland Trading as Bank of Ireland
Commercial Finance
|
Schedule
3
Conditions
Precedent
|
1.
|
In
relation to each Obligor:
|
|
1.1
|
a
certificate of its company secretary or, if it has no company secretary,
one of its directors or other officers, confirming that such company’s
memorandum and articles of association and certificate(s) of incorporation
and incorporation on change of name have not been amended since the date
they were last delivered to the
Agent;
|
|
1.2
|
a
copy, certified as at the date of this Supplemental Agreement a true and
up-to-date copy by one of its directors or its company secretary, of a
board resolution of such company approving its execution, delivery and
performance of this Supplemental Agreement and its terms and conditions
and any documents to be delivered by it pursuant to this Supplemental
Agreement and authorising a named person or persons or a designated
category of officer to sign this Supplemental Agreement and any documents
to be delivered by it pursuant to this Supplemental Agreement on its
behalf; and
|
|
1.3
|
a
certificate of its company secretary or, if it has no company secretary,
one of its directors or other officers confirming that the names and
signatures of the persons authorised to sign, on behalf of such company,
this Supplemental Agreement and any documents to be delivered by it
pursuant to this Supplemental Agreement have not changed from those set
out in the certificate setting out such names and signatures delivered to
the Agent on or about 2 January
2007.
|
|
2.
|
This
Supplemental Agreement, duly executed by the parties
thereto.
|
|
3.
|
A
certificate of the finance director of BMUK (together with such additional
information or evidence as the Agent may reasonably require) confirming,
among other matters, (A) that no Default has occurred and is continuing
and (B) the level of current creditors’ days outstanding together with
confirmation that the largest twenty (20) trade creditors of the Group are
being paid in accordance with the credit terms prevailing between such
parties.
|
|
4.
|
The
Fee Letter (2009) duly signed by
BMUK.
|
|
5.
|
Such
other documents and evidence as the Agent may
require.
|
THE
BORROWERS
|
SIGNED for and on behalf
of
|
)
/s/ Nicholas Lee
|
|
BELL
MICROPRODUCTS LIMITED
|
)
|
|
by:
|
)
|
|
Address:
|
Cox
Lane
|
|
Chessington
|
|
|
Surrey KT9
1SJ
|
|
|
Fax:
|
+44
(0)20 8286 5588
|
|
Attention:
|
Nick
Lee/Helen Hancock
|
|
SIGNED for and on behalf
of
|
)
/s/ Nicholas Lee
|
|
BELL
MICROPRODUCTS EUROPE
|
)
|
|
EXPORT LIMITED
by:
|
)
|
|
Address:
|
Cox
Lane
|
|
Chessington
|
|
|
Surrey KT9
1SJ
|
|
|
Fax:
|
+44
(0)20 8286 5588
|
|
Attention:
|
Nick
Lee/Helen Hancock
|
THE
DUTCH OBLIGORS
|
SIGNED by its Managing
Partner
|
)
/s/ Graeme Watt
|
|
for
and on behalf of
|
)
|
|
BM
EUROPE PARTNERS C.V.
|
)
|
|
Address:
|
Cox
Lane
|
|
Chessington
|
|
|
Surrey KT9
1SJ
|
|
|
Fax:
|
+44
(0)20 8286 5588
|
|
Attention:
|
Nick
Lee/Helen Hancock
|
BELL
MICROPRODUCTS EUROPE (HOLDINGS) B.V.
|
SIGNED by its Managing
Partner
|
)
/s/ Nicholas Lee
|
|
BELL
MICROPRODUCTS
|
)
|
|
EUROPE (HOLDINGS) B.V.
by:
|
)
|
|
Address:
|
Cox
Lane
|
|
Chessington
|
|
|
Surrey KT9
1SJ
|
|
|
Fax:
|
+44
(0)20 8286 5588
|
|
Attention:
|
Nick
Lee/Helen Hancock
|
BELL
MICROPRODUCTS EUROPE B.V.
|
SIGNED by its Managing
Partner
|
)
/s/ Nicholas Lee
|
|
BELL
MICROPRODUCTS
|
)
|
|
EUROPE B.V.
by:
|
)
|
|
Address:
|
Cox
Lane
|
|
Chessington
|
|
|
Surrey KT9
1SJ
|
|
|
Fax:
|
+44
(0)20 8286 5588
|
|
Attention:
|
Nick
Lee/Helen Hancock
|
THE GUARANTORS
|
SIGNED for and on behalf
of
|
)
/s/ Nicholas Lee
|
|
BELL MICROPRODUCTS
LIMITED by:
|
)
|
|
Address:
|
Cox
Lane
|
|
Chessington
|
|
|
Surrey,
KT9 1SS
|
|
|
Fax:
|
+44
(0)20 8286 5588
|
|
Attention:
|
Nick
Lee/Helen Hancock
|
|
SIGNED by its Managing
Partner
|
)
/s/ Nicholas Lee
|
|
BELL
MICROPRODUCTS EUROPE
|
)
|
|
EXPORT LIMITED
by:
|
)
|
|
Address:
|
Cox
Lane
|
|
Chessington
|
|
|
Surrey KT9
1SS
|
|
|
Fax:
|
+44
(0)20 8286 5588
|
|
Attention:
|
Nick
Lee/Helen Hancock
|
|
SIGNED for and on behalf
of
|
)
/s/ Nicholas Lee
|
|
BELL
MICROPRODUCTS EUROPE B.V.
|
)
|
|
acting
by its Managing Director:
|
)
|
|
Address:
|
Cox
Lane
|
|
Chessington
|
|
|
Surrey KT9
1SS
|
|
|
Fax:
|
+44
(0)20 8286 5588
|
|
Attention:
|
Nick
Lee/Helen Hancock
|
|
SIGNED for and on behalf
of
|
)
/s/ Nicholas Lee
|
|
BELL MICROPRODUCTS
S.A.R.L. by
|
)
|
|
in
the presence of:
|
)
|
|
Witness
|
|
|
Signature:
|
/s/ H.M. Hancock |
|
Name:
|
Helen Hancock |
|
Occupation:
|
Solicitor |
|
Address:
|
as below |
|
Address:
|
Cox
Lane
|
|
Chessington
|
|
|
Surrey KT9
1SS
|
|
|
Fax:
|
020
8286 5588
|
|
Attention:
|
Nick
Lee/Helen Hancock
|
|
SIGNED for and on behalf
of
|
) /s/
Nicholas Lee
|
|
BELL MICROPRODUCTS BVBA
by
|
)
|
|
in
the presence of:
|
)
|
|
Witness
|
|
|
Signature:
|
/s/ H.M. Hancock |
|
Name:
|
Helen Hancock |
|
Occupation:
|
Solicitor |
|
Address:
|
as below |
|
Address:
|
Cox
Lane
|
|
Chessington
|
|
|
Surrey KT9
1SS
|
|
|
Fax:
|
020
8286 5588
|
|
Attention:
|
Nick
Lee/Helen Hancock
|
|
SIGNED for and on behalf
of
|
) /s/
Nicholas Lee
|
|
BELL
MICROPRODUCTS (US) LIMITED
|
)
|
|
by:
|
)
|
|
Address:
|
Cox
Lane
|
|
Chessington
|
|
|
Surrey KT9
1SS
|
|
|
Fax:
|
020
8286 5588
|
|
Attention:
|
Nick
Lee/Helen Hancock
|
THE
AGENT
|
SIGNED for and on behalf
of
|
)
/s/ Lee Masters
|
|
BANK
OF AMERICA, NATIONAL
|
)
Lee Masters
|
|
ASSOCIATION
by:
|
)
Client Manager
|
|
Address:
|
5
Canada Square
|
|
London E14
5AQ
|
|
|
Fax:
|
+44
(0)20 7174 6400
|
|
Attention:
|
Business
Capital, Portfolio Management
|
THE
ARRANGER
|
SIGNED for and on behalf
of
|
)
/s/ Lee Masters
|
|
BANK
OF AMERICA, NATIONAL
|
)
Lee Masters
|
|
ASSOCIATION
by:
|
)
Client Manager
|
|
Address:
|
5
Canada Square
|
|
London E14
5AQ
|
|
|
Fax:
|
+44
(0)20 7174 6400
|
|
Attention:
|
Business
Capital, Portfolio Management
|
THE
SECURITY TRUSTEE
|
SIGNED for and on behalf
of
|
)
/s/ Lee Masters
|
|
BANK
OF AMERICA, NATIONAL
|
)
Lee Masters
|
|
ASSOCIATION
by:
|
)
Client Manager
|
|
Address:
|
5
Canada Square
|
|
London E14
5AQ
|
|
|
Fax:
|
+44
(0)20 7174 6400
|
|
Attention:
|
Business
Capital, Portfolio Management
|
THE
SWINGLINE LENDER
|
SIGNED for and on behalf
of
|
)
/s/ Lee Masters
|
|
BANK
OF AMERICA, NATIONAL
|
)
Lee Masters
|
|
ASSOCIATION
by:
|
)
Client Manager
|
|
Address:
|
5
Canada Square
|
|
London E14
5AQ
|
|
|
Fax:
|
+44
(0)20 7174 6400
|
|
Attention:
|
Business
Capital, Portfolio Management
|
THE
ISSUER
|
SIGNED for and on behalf
of
|
)
/s/ Lee Masters
|
|
BANK
OF AMERICA, NATIONAL
|
)
Lee Masters
|
|
ASSOCIATION
by:
|
)
Client Manager
|
|
Address:
|
5
Canada Square
|
|
London E14
5AQ
|
|
|
Fax:
|
+44
(0)20 7174 6400
|
|
Attention:
|
Business
Capital, Portfolio Management
|
THE
LENDERS
|
SIGNED for and on behalf
of
|
)
/s/ Lee Masters
|
|
BANK
OF AMERICA, NATIONAL
|
)
Lee Masters
|
|
ASSOCIATION
by:
|
)
Client Manager
|
|
Address:
|
5
Canada Square
|
|
London E14
5AQ
|
|
|
Fax:
|
+44
(0)20 7174 6400
|
|
Attention:
|
Business
Capital, Portfolio Management
|
|
SIGNED for and on behalf
of
|
)
/s/ J. Fenton-Jones
|
|
LLOYDS
TSB COMMERCIAL FINANCE
|
)
J. Fenton-Jones
|
|
LIMITED
by:
|
)
|
|
Address:
|
Vanburgh
House
|
|
Grange
Road
|
|
|
Hedge
End, Southampton
|
|
|
Hampshire
SO30 2AF
|
|
|
Fax:
|
+44
(0)1489 789903
|
|
Attention:
|
Ronnie
Whitehead or Ren Randev
|
|
GNED for and on behalf
of THE
GOVERNOR
|
)
/s/ Colin Crangle 7056
|
|
AND
COMPANY OF THE BANK OF IRELAND
|
)
/s/ Liz Breadon 4330
|
|
TRADING
AS BANK OF IRELAND
|
)
|
|
COMMERCIAL FINANCE
by:
|
|
Address:
|
3rd
Floor
|
|
31
Worship Street
|
|
|
London
EC2A 2DX
|
|
|
Fax:
|
+44
(0)207 448 1931
|
|
Attention:
|
Peter
Hayden/Cathal Brennan/Gerry Hoare/ Colin
Keene
|
ENTERPRISE
|
SIGNED for and on behalf
of
|
)
/s/ Gillian Breakley
|
|
ENTERPRISE
FINANCE EUROPE
|
)
|
|
(UK) LIMITED
by:
|
)
|
|
Address:
|
3rd
Floor
|
|
31
Worship Street
|
|
|
London
EC2A 2DX
|
|
|
Fax:
|
+44
(0)207 448 1931
|
|
Attention:
|
Peter
Hayden/Cathal Brennan/Gerry Hoare/ Colin
Keene
|
|
BELL MICROPRODUCTS
LIMITED
|
|
BELL MICROPRODUCTS
EUROPE EXPORT LIMITED
|
|
|
|
as Original
Borrowers
|
|
|
|
and
|
|
|
|
BM EUROPE
PARTNERS C.V.
|
|
BELL MICROPRODUCTS
EUROPE BV
|
|
|
|
|
|
BANK OF AMERICA,
NATIONAL ASSOCIATION
|
|
|
|
as Arranger, Issuer,
Swingline Lender, Agent and Security Trustee
|
|
|
|
and
|
|
|
|
CERTAIN BANKS AND
FINANCIAL INSTITUTIONS
|
|
as
Lenders
|
|
|
|
SYNDICATED CREDIT
AGREEMENT
|
|
as amended
and/or restated by supplemental agreements dated 3 December 2003, 22
September 2004, 17 March 2005, 16 August 2005, 20 October 2005, 2 January
2007, 21 May 2008 and 18 December 2009 and amendment letters dated 30
January 2008 and 18 June 2009
|
CMS Cameron McKenna
LLP
Mitre
House
160 Aldersgate
Street
London EC1 4DD
EDR/0Z2950.01608
|
1.
|
INTERPRETATION
|
4
|
|
2.
|
THE
REVOLVING FACILITY
|
29
|
|
3.
|
ADDITIONAL
BORROWERS AND UNSECURED GUARANTORS
|
30
|
|
4.
|
ADDITIONAL
CHARGING COMPANIES
|
32
|
|
5.
|
CONDITIONS
PRECEDENT
|
33
|
|
6.
|
UTILISATION
OF THE REVOLVING FACILITY
|
33
|
|
7.
|
INTEREST
AND INTEREST PERIODS
|
42
|
|
8.
|
MARKET
DISRUPTION
|
46
|
|
9.
|
REPAYMENT,
PREPAYMENT AND CANCELLATION
|
47
|
|
10.
|
TAXES
|
48
|
|
11.
|
INCREASED
COST
|
50
|
|
12.
|
ILLEGALITY
|
52
|
|
13.
|
GUARANTEE
|
52
|
|
14.
|
REPRESENTATIONS
AND WARRANTIES
|
56
|
|
15.
|
FINANCIAL
CONDITION
|
61
|
|
16.
|
COVENANTS
|
67
|
|
17.
|
DEFAULT
|
83
|
|
18.
|
DEFAULT
INTEREST
|
88
|
|
19.
|
INDEMNITIES
|
89
|
|
20.
|
CURRENCY
OF ACCOUNT AND PAYMENTS
|
91
|
|
21.
|
SET-OFF
|
93
|
|
22.
|
FEES
|
94
|
|
23.
|
PRO
RATA SHARING
|
96
|
|
24.
|
COSTS,
EXPENSES AND STAMP DUTIES
|
97
|
|
25.
|
CALCULATIONS
AND EVIDENCE OF DEBT
|
98
|
|
26.
|
THE
AGENT, THE ARRANGER, THE SECURITY TRUSTEE AND THE LENDERS
|
99
|
|
27.
|
TRUSTEE
PROVISIONS
|
103
|
|
28.
|
ASSIGNMENTS
AND TRANSFERS
|
108
|
|
29.
|
TERM
AND TERMINATION
|
111
|
|
30.
|
AMENDMENTS,
WAIVERS AND REMEDIES
|
112
|
|
31.
|
PARTIAL
INVALIDITY
|
113
|
|
32.
|
NOTICES
|
113
|
|
33.
|
COUNTERPARTS
|
114
|
|
34
|
DUTCH
PARALLEL DEBT
|
114
|
|
35.
|
LAW
AND JURISDICTION
|
115
|
|
SCHEDULE
1
|
117
|
|
LENDERS
AND COMMITMENTS
|
117
|
|
SCHEDULE
2
|
118
|
|
CONDITIONS
PRECEDENT
|
118
|
|
SCHEDULE
3
|
120
|
|
FORM
OF OBLIGOR’S CERTIFICATE
|
120
|
|
SCHEDULE
4
|
122
|
|
FORM
OF UTILISATION NOTICE
|
122
|
|
SCHEDULE
5
|
123
|
|
MANDATORY
COST FORMULAE
|
123
|
|
SCHEDULE
6
|
126
|
|
FORM
OF TRANSFER CERTIFICATE
|
126
|
|
SCHEDULE
7
|
129
|
|
THE
DORMANT COMPANIES AND THE GUARANTORS
|
129
|
|
SCHEDULE
8
|
130
|
|
FORM
OF ACCENSSION NOTICE
|
130
|
|
SCHEDULE
9
|
131
|
|
DOCUMENTS
TO ACCOMPANY ACCESSION NOTICE OR SUPPLEMENTAL DEED
|
131
|
|
SCHEDULE
10
|
133
|
|
THE
MATERIAL CONTRACTS
|
133
|
THIS AGREEMENT is made on 2
December 2002, as amended and/or restated on 3 December 2003, 22 September 2004,
17 March 2005, 16 August 2005, 20 October 2005, 2 January 2007, 21 May 2008 and
18 December 2009
BETWEEN:
|
(1)
|
BELL MICROPRODUCTS
LIMITED company incorporated in England and Wales with registered
number 03969946 whose registered office is at, Cox Lane, Chessington,
Surrey KT9 1SJ (“BMUK”) and BELL MICROPRODUCTS EUROPE
EXPORT LIMITED a company incorporated in England and Wales with
registered number 03711148 whose registered office is at Cox Lane,
Chessington, Surrey KT9 1SJ (“BMEE”) (each an
“Original Borrower” and together, the “Original
Borrowers”);
|
|
(2)
|
BM EUROPE PARTNERS C.V.
a limited partnership (commanditaire
vennootschap) established under the laws of the Netherlands, having
its official seat in Emmen, the Netherlands and its registered office at
Veluwezoom 42-50, 1327 AH Almere, the Netherlands and registered in the
Commercial Register under number 04065637 (“BMEP”);
|
|
(3)
|
BELL MICROPRODUCTS EUROPE
B.V. a private company with limited liability (besloten vennootschap met
beperkte aansprakelijkheid) incorporated under the laws of the
Netherlands, having its official seat in Emmen, the Netherlands and its
registered office at Veluwezoom 42-50, 1327 AH Almere, the Netherlands and
registered in the Commercial Register under number 04064633 (“BMEBV”);
|
|
(4)
|
BANK OF AMERICA, NATIONAL
ASSOCIATION acting through its London branch at 5 Canada Square,
London, E14 5AQ in its capacity as arranger (the “Arranger”), in its
capacity as agent for the Lenders (the “Agent”), in its capacity
as the Lender making Swingline Loans (the “Swingline Lender”), in
its capacity as the Lender issuing any Letter of Credit or Guarantee (the
“Issuer”) and in
its capacity as security trustee under the Security Documents (the “Security Trustee”);
and
|
|
(5)
|
THE BANKS AND FINANCIAL
INSTITUTIONS named in Schedule 1 (the “Original
Lenders”).
|
IT IS AGREED as
follows:
|
1.
|
INTERPRETATION
|
|
1.1
|
Definitions
|
Save as
otherwise provided in this Agreement, the following words and phrases have the
following meanings throughout this Agreement:
Accession Notice: a notice
substantially in the form set out in Schedule 8 (Form of Accession Notice)
pursuant to which a Group Company may accede to this Agreement as an Additional
Borrower or, as the case may be, an Unsecured Guarantor;
Account: in relation to each
Trading Company, its right to payment for a sale or lease and delivery of goods
or rendering of services;
Account Debtor: each person
having any obligation on or in connection with an Account;
Accounts Transfer Conditions:
the accounts transfer conditions incorporated into the Invoice Discounting
Agreements entered into by each IDF Company from time to time;
Additional Borrower: a Group
Company which has acceded to this Agreement as an Additional Borrower by
executing and delivering to the Agent an Accession Notice in accordance with
Clause 3 (Additional Borrowers
and Unsecured Guarantors);
Additional Cost Rate: the
meaning given to it in paragraph 2 of Schedule 5 (Mandatory Cost
Formulae);
Additional Monitoring and
Administration Fee: the meaning given to it in Clause 22.7 (Additional Monitoring and
Administration Fee);
Adjusted Tangible Assets: the
meaning given to it in Clause 15.4 (Financial
Ratios);
Adjusted Tangible Net Worth:
the meaning given to it in Clause 15.4 (Financial
Ratios);
Affiliate:
|
|
(i)
|
a
person which, directly or indirectly, controls or is controlled by or is
under common control with, a
Borrower;
|
|
|
(ii)
|
a
person which beneficially owns or holds, directly or indirectly, 5% or
more of any class of voting shares of a Borrower;
or
|
|
|
(iii)
|
a
person in which 5% of any class of voting shares is beneficially owned or
held, directly or indirectly, by a
Borrower;
|
Agent Loan: the meaning given
to it in Clause 6.15.1 (Authorisation);
Agent’s Spot Rate of Exchange:
the Agent’s spot rate of exchange for the purchase of the relevant currency with
sterling in the London foreign exchange market at or about 11.00 a.m. on a
particular day;
Aggregate Exposure: at any
time, the aggregate at such time of the Total Outstandings and the Invoice
Discounting Facility Exposure at such time;
Alternative Rate: at any time
during a calendar month, in relation to any Loan or unpaid sum denominated in
sterling or any Foreign Currency (as the case may be) on which interest is to be
calculated by reference to the Alternative Rate:
|
|
(i)
|
the
applicable Screen Rate; or
|
|
|
(ii)
|
(if
no Screen Rate is available for the currency of that Loan or unpaid sum)
the arithmetic mean of the rates (rounded up to 4 decimal places) as
supplied to the Agent at its request quoted by the Reference Banks to
leading banks in the London Interbank
Market,
|
for a
period of 30 days, at or about 11.00 a.m. in London on the first business day of
that calendar month, for sterling or such Foreign Currency;
Alternative Rate Revolving
Loan: a revolving loan made or to be made by the Lenders in
relation to which interest thereon is to be calculated by reference to the
Alternative Rate;
Anniversary Date: 20
October 2008 and each subsequent anniversary of such date;
Applicable
GAAP:
|
|
(i)
|
save
as provided in paragraph (ii) of this definition, in respect of any
person, the generally accepted accounting principles and policies in the
country in which such person is incorporated or under whose laws it is
otherwise established, consistently
applied; and
|
|
|
(ii)
|
in
connection with the preparation of the Pro-Forma Balance Sheet and the
Management Accounts and for the purposes of determining compliance by BMUK
with the financial ratio set out in Clause 15.4 (Financial Ratios),
generally accepted accounting principles and policies in the United States
of America, consistently applied (“US
GAAP”);
|
Applicable Margin: unless by
virtue of the operation of Clause 7.6 (Margin Ratchet) a lower rate
applies, prior to the receipt of a Limit Reduction Notice, three per cent.
(3.00%) per annum and, after receipt of a Limit Reduction Notice, two and one
half of one per cent. (2.50%) per annum;
Approved Acquisition Conditions:
each of the following conditions:
|
|
(i)
|
that
the relevant acquisition (the “relevant acquisition”)
is to be funded by the relevant Group Company (a “purchaser”) entirely out
of Excess Availability and that at the time of the relevant acquisition,
the amount of Excess Availability was not less than £5,000,000 and the
projections, forecasts and other information supplied to the Agent
pursuant to Clause 15.2 (Provision of Financial
Information) demonstrate that an average Excess Availability of not
less than £5,000,000 will be maintained for a continuous period of three
(3) months commencing on the date of completion of the relevant
acquisition;
|
|
|
(ii)
|
that
the costs of the relevant acquisition do not exceed £10,000,000 (or the
equivalent in any other currency) and when aggregated with the costs of
all other Pre-Approved Acquisitions made or in the process of being made
by that or any other purchaser do not or, as the case may be, will not,
exceed £20,000,000 (or the equivalent in any other currency) during the
term of this Agreement;
|
|
|
(iii)
|
that
the relevant purchaser (or BMUK on its behalf) has given written notice to
the Agent (such notice to be served not less than 15 business days prior
to the proposed date of completion of the relevant acquisition), such
notice to include, without limitation, (A) the name of the company and/or
a brief description of the assets being purchased and/or the nature of
such company’s business; (B) a breakdown of the total consideration
payable (including any element of deferred consideration and/or the
details of any earn-out or possible additional consideration payable); (C)
the business case or other reason(s) underlying the relevant acquisition;
(D) the basic terms and conditions of the relevant acquisition; (E) a
brief business plan and a historic financial statement in relation to any
company being purchased (to include a profit and loss account, balance
sheet and cash flow statement relating to the immediately preceding 12
months);
|
|
|
(iv)
|
in
the case of any relevant acquisition of shares in a company, such
acquisition has been approved or recommended by the board of directors of
such company;
|
|
|
(v)
|
that
the finance director of BMUK has delivered a certificate to the Agent
(together with such additional information or evidence as the Agent may
have reasonably required) confirming, among other matters, (A) that no
Default has occurred and is continuing or will occur as a result of the
completion of the relevant acquisition or would have occurred if the
relevant acquisition had been completed on the last day of the Financial
Quarter most recently ended; (B) the level of current creditors’ days
outstanding together with confirmation that the largest twenty (20) trade
creditors of the Group are being paid in accordance with the credit terms
prevailing between such parties; and (C) that each of the foregoing
conditions set out in paragraphs (i) to (iv) (inclusive) has been
satisfied and will continue to be complied with as at each relevant date
prescribed in this definition of “Approved Acquisition
Conditions”.
|
For the
purpose of this definition of “Approved Acquisition
Conditions”, the expression “costs” shall be construed to mean the total
initial, deferred or additional consideration paid or payable to any person(s)
in connection with any relevant acquisition, together with all reasonable costs,
fees and expenses (including legal or other professional advisers’ fees)
properly paid or payable in connection with the relevant
acquisition;
Approved Acquisition Documents:
any (i) sale agreement, (ii) share exchange agreement, (iii) offering
circular or (iv) any other documents or instruments (howsoever described)
relating to a Pre-Approved Acquisition or any other acquisition of assets
approved by the Agent;
Audit Fee: the meaning given
to it in Clause 22.4 (Audit
Fee);
Auditors:
PricewaterhouseCoopers, chartered accountants, or any other firm of
chartered accountants of similar standing selected by BMUK and satisfactory to
the Agent;
Available Commitment: in
relation to a Lender at any time, the Commitment of that Lender less the sum at
such time of the Original Sterling Amount of (i) the aggregate amount which it
has advanced and (ii) (in the case of the Issuer) the aggregate of its
contingent liabilities under any Letters of Credit or Guarantees issued by
it;
Available Facility: at any
time, the aggregate of the Available Commitments;
Available Revolving Facility Amount:
at any time, in relation to the Revolving Facility and any proposed
Utilisation thereof by any Borrower, the Revolving Facility Amount as reduced by
the sum at such time of the Original Sterling Amount of:
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(i)
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the
aggregate principal amount of all Revolving Loans and Swingline Loans then
outstanding;
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(ii)
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the
aggregate face amount of all Letters of Credit and of the aggregate
maximum contingent liability under all Guarantees issued by the
Issuer;
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(iii)
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the
amount by which the Commitment of any Lender is or is due to be
permanently cancelled or reduced in accordance with the terms of this
Agreement;
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(iv)
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all
reserves for accrued interest on the Revolving Loans and Swingline
Loans;
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(v)
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the
Invoice Discounting Facility Exposure at such
time;
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(vi)
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any
IDF Portfolio Loss; and
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(vii)
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all
other reserves which the Agent in its discretion deems necessary or
desirable to maintain with respect to any Borrower’s account (including,
without limitation, in respect of any day-to-day fluctuations in the value
of sterling against any Foreign Currency and in respect of any liability
of any Borrower under any Hedging Agreement or in respect of any other
Bank Products) and any amounts which the Agent, the Security Trustee, any
Lender or any other Beneficiary may be obliged to pay in the future for
the account of any Borrower;
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Bank Product: any
of the following products, services or facilities extended to an Obligor: (a)
Cash Management Services; (b) products under Hedging Agreements; (c) commercial
credit card and merchant card services; and (d) leases and other banking
products or services as may be requested by an Obligor, other than Letters of
Credit or other Utilisations;
Bank Product
Debt: financial indebtedness and other obligations of an
Obligor relating to Bank Products;
Belgian IDF Company: Bell
Microproducts BVBA, a corporation incorporated under the laws of Belgium with
registered number 0474128872 and having its registered office at Mechelen
Campus, Schalienhoevedreef 20 1, B-2800 Mechelen, Belgium;
Belgian Invoice Discounting
Agreement: the invoice discounting agreement dated 15 December 2004 and
made between the Belgian IDF Company and Bank of America, National Association
acting through its Antwerp branch at Uitbreidingstraat 180, Box 6, B2600,
Antwerp, Belgium;
Belgian Pledge: any pledge in
respect of the Company Accounts and the Non-Vesting Accounts of the Belgian IDF
Company, in form and substance satisfactory to the Agent and the Receivables
Purchaser;
Beneficiary: collectively (a)
each of the Agent, the Arranger, any Hedge Provider (provided always that such
Hedge Provider is BofA), the Swingline Lender, the Issuer, the Security Trustee
and any Lender; (b) BofA (in relation to Bank Products) and (c) BofA in its
capacity as Receivables Purchaser;
BMEH: Bell Microproducts
Europe (Holdings) B.V., a private company with limited liability (besloten vennootschap met beperkte
aansprakelijkheid) incorporated under the laws of the Netherlands, having
its official seat in Almere, the Netherlands and its registered office at
Veluwezoom 42-50, 1327 AH Almere, the Netherlands and registered in the
Netherlands with the Trade Register under number: 39087200;
BMEH IBM Guarantees: the
guarantees dated 1 December 2005 entered into by BMEH in favour of the IBM
Entities for a principal amount not exceeding €40,000,000 in aggregate in
respect of the obligations of members of the Restricted Group under invoice
purchase, working capital and term loan facility agreements entered into and to
be entered into between the IBM Entities (or any of them) and certain members of
the Restricted Group;
BMEH Reichl Guarantee: the
guarantee by BMEH in favour of Mr Klaus Reichl for an amount not exceeding
€4,000,000 in aggregate in respect of the obligations of Bell Microproducts
Solutions GmbH under a facility agreement dated 23 November 2005 and made
between Mr Klaus Reichl (as lender), Bell Microproducts Solutions GmbH (as
borrower) and BMEH (as guarantor);
BMUK/IDFC Group: collectively,
the BMUK Group and each of the IDF Companies;
BMUK Group: BMUK and its
Subsidiaries for the time being;
BofA: Bank of America,
N.A.;
Borrowers: each Original
Borrower and each Additional Borrower and “Borrower” means any one of
them;
Borrowing Base Certificate: a
certificate in such form as the Agent may from time to time reasonably require
and completed by BMUK setting out, amongst other things, details of Accounts and
with effect from the Inventory Eligibility Date, if applicable, Inventory (as
specified in Clause 16.4.1 (Collateral Reporting) and of
preferential creditors so as to enable the Agent to determine the Available
Revolving Facility Amount;
Borrowings: a sum equal to the
aggregate amount for the time being of the principal, capital or nominal amount
(determined on a consolidated basis) of all financial indebtedness of any member
of the Group (other than moneys borrowed or raised from another member of the
Group) and, without prejudice to the generality of the foregoing, shall be
deemed to include the following:
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(a)
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the
principal amount of any debenture, bond, note, loan stock, preference
share capital, commercial paper or similar instrument of any member of the
Group;
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(b)
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any
amounts raised by any member of the Group under any bill of exchange (but
excluding any bill drawn or accepted in the ordinary course of trade of
the relevant member of the Group and which is payable at sight or not more
than 90 days after sight or has a final maturity of not more than 90 days
from the date thereof and is not refinancing another bill whether or not
relating to the same underlying transaction) and the indebtedness of any
member of the Group under any acceptance credit, bill discounting, note
purchase or documentary credit
facility;
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(c)
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the
aggregate amount remaining to be paid by any member of the Group under any
credit agreement save for amounts remaining to be paid which cannot
properly be attributed to capital in accordance with Applicable
GAAP;
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(d)
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the
capitalised value (determined in accordance with Applicable GAAP) of the
outstanding commitments of any member of the Group under any finance
lease;
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(e)
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indebtedness
under any receivables purchase, factoring or discounting arrangement
including, without limitation, the Invoice Discounting Agreements (to the
extent there is any recourse against any member of the
Group);
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(f)
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the
aggregate amount remaining to be paid in respect of any credit (other than
normal trade credit which has been outstanding for a period of less than
90 days) granted to, or of any deferred payments due from, any member of
the Group in respect of the acquisition or construction price of assets
acquired or constructed or the purchase price of services
supplied;
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(g)
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indebtedness
of any member of the Group in respect of any other transaction having the
commercial effect of a borrowing or other raising of money entered into by
it in order to finance its business or operations or capital requirements;
and
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(h)
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(without
double counting) indebtedness of any member of the Group under any
guarantee or other assurance against financial loss in respect of the
financial indebtedness of any
person.
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For the
purpose of determining the amount of “Borrowings” at any time, any
amount which is on a particular day outstanding or repayable in a currency other
than sterling shall on that day be taken into account (i) if that day is the
last day of a Financial Year or Management Accounting Period, at its equivalent
in sterling at the rate of exchange used for the purpose of preparing the
balance sheet forming part of the Relevant Accounting Information prepared as at
such date and (ii) in any other case, at its sterling equivalent as determined
by the Agent by reference to the Agent’s Spot Rate of Exchange;
Borrowing Costs: in relation
to any financial period, a sum equal to the aggregate amount of all continuing,
regular or periodic costs (excluding any prepayment or termination fee), charges
and expenses incurred by the BMUK/IDFC Group in respect of such period (and
whether paid or not) in effecting, servicing or maintaining Borrowings including
(but without double-counting):
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(a)
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interest
(whether the same shall be payable immediately or be capitalised or
otherwise deferred);
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(b)
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any
fixed or minimum premium or dividend paid or payable on the maturity of
any Borrowings;
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(c)
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consideration
given whether by way of discount or otherwise in connection with finance
by way of acceptance credit, bill discounting, note purchase, receivables
purchase, debt factoring or other like arrangement including, without
limitation, the discount charge payable under the Invoice Discounting
Agreements; and
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(d)
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the
gross amount payable under any finance lease or credit agreement less so
much as can properly be attributed to
capital,
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the
amount of any such costs, charges and expenses to be allocated to each such
period over the term of any Borrowings in accordance with Applicable
GAAP;
Capital Expenditure: all
payments due (whether or not paid) in respect of the cost of any fixed asset or
any improvement, replacement, substitution or addition thereto, which has a
useful life of more than one year, including, without limitation, those arising
in connection with the direct or indirect acquisition of such assets by way of
increased product or service charges or offset items or in connection with
finance leases;
Capital Markets Transaction:
any direct or indirect public offering or private placement of any debt or
equity securities of (including any capital contribution to) any Borrower, BMEP,
BMEH or BMEBV;
Cash Management
Services: any services provided from time to time by BofA or
any of its Affiliates to an Obligor in connection with operating, collections,
payroll, trust, or other depository or disbursement accounts, including
automated clearinghouse, e-payable, electronic funds transfer, wire transfer,
controlled disbursement, overdraft, depository, information reporting, lockbox
and stop payment services;
Cash Outflow: in relation to
any financial period and without double-counting, the aggregate for that period
of:
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(i)
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Borrowing
Costs;
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(ii)
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taxes
paid;
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(iii)
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dividends
paid or other distributions made;
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(iv)
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Capital
Expenditure;
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(v)
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amortisation
payments on Borrowings and the capital element of any rental payments or
instalments under any credit agreement or finance
lease;
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(vi)
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any
expenditure which results in a corresponding release of any provision in
the balance sheet;
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Charging Company: the
companies listed in Part 2 of Schedule 7 (The Dormant Companies and the
Guarantors) and any other Group Company which has executed the Debenture
or any other Security Document or which has acceded to the Debenture or any
other Security Document by executing a Supplemental Deed in accordance with
Clause 4 (Additional Charging
Companies);
Closing Date: 2 December
2002;
Collateral: the meaning given
to it in the Debenture;
Collateral Management Fee: the
meaning given to it in Clause 22.3 (Collateral Management
Fee);
Commitment: in relation to a
Lender at any time, the amount in sterling set opposite its name in Schedule 1
(Lenders and
Commitments) (and/or, as the case may be, the amount in sterling
specified as the portion transferred in the Transfer Certificate pursuant to
which such Lender increased its Commitment or became a party to this Agreement)
as the same may at any time be cancelled or reduced in accordance with this
Agreement;
Commitment Period: the period
commencing on the Closing Date and ending on the date falling one month prior to
the Termination Date;
Company Accounts: has, as the
context requires, the meaning ascribed to it in the applicable Invoice
Discounting Agreement;
Current Assets: the meaning
given to it in Clause 15.4 (Financial
Ratios);
Current Liabilities: the
meaning given to it in Clause 15.4 (Financial
Ratios); Debenture: the composite
guarantee and debenture creating one or more encumbrances in favour of the
Security Trustee on behalf of the Beneficiaries, dated 2 December 2002 and
executed as a deed by certain Charging Companies to secure the obligations of
the Obligors under the Finance Documents;
Default: an Event of Default
or any condition, act or event which (with the giving of notice, lapse of time,
making of any determination, fulfilment of any condition or any combination of
any of the foregoing) may become an Event of Default;
Discharge: a release, spill,
emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal,
leaching or migration of a Hazardous Substance into the indoor or outdoor
environment or into or out of any real estate or other property, including the
movement of Hazardous Substances through or in the air, soil, surface water,
groundwater or real estate or other property;
Distribution: any dividend or
other distribution (whether in cash or in kind) in respect of share capital,
including any bonus issue or return of capital (whether at a premium or
otherwise);
Dormant Company: a company
which is a “dormant”
company as defined in section 249AA Companies Act 1985 and which does not at any
time have assets (other than intercompany indebtedness) in excess of £5,000 (or
the equivalent in any other currency) and which expression shall include, for
the purposes of this Agreement, each of the companies whose names are set out in
Part 1 of Schedule 7;
EBITDA: in relation to any
financial period, a sum equal to the BMUK/IDFC Group’s profit on ordinary
activities before taxation (save to the extent that such profit is attributable
to any interest received) after adding back Borrowing Costs, depreciation and
amortisation and deducting any release to profits of negative goodwill in
respect of such period but excluding:
(a) profits
or losses on the sale or termination of an operation;
(b) profits
or losses on the disposal of fixed assets; and
(c) extraordinary
items;
EC Insolvency Regulation:
Council Regulation (EC) No. 11346/2000 of 29 May 2000 on insolvency
proceedings;
Effective Date: the meaning
given to it in clause 3.1 (Effective Date) of the
Supplemental Agreement dated 21 May 2008;
Eligible Accounts: the
Accounts which the Agent in the exercise of its commercial discretion determines
to be Eligible Accounts. Without limiting the discretion of the Agent
to establish other criteria of ineligibility, Eligible Accounts shall not,
unless the Agent in its commercial discretion elects, include any
Account:
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(a)
|
with
respect to which more than ninety (90) days have elapsed since the date of
the original invoice or sixty (60) days have elapsed since the due date
therefor;
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(b)
|
with
respect to which any of the representations, warranties, covenants and
agreements contained in the Debenture are incorrect or have been
breached;
|
|
|
(c)
|
with
respect to which Account (or any other Account due from the applicable
Account Debtor), in whole or in part, a cheque, promissory note, draft,
trade acceptance or other instrument for the payment of money has been
received, presented for payment, and returned uncollected for any
reason;
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|
|
(d)
|
which
represents a progress billing (as hereinafter defined) or as to which the
applicable Borrower has extended the time for payment without the consent
of the Agent (for the purposes hereof, “progress billing” means any
invoice for goods sold or leased or services rendered under a contract or
agreement pursuant to which the Account Debtor’s obligation to pay such
invoice is conditional upon such Borrower’s completion of any further
performance under such contract or
agreement);
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|
|
(e)
|
with
respect to which any one or more of the following events has occurred to
the Account Debtor on such Account: (i) death or judicial declaration of
incompetency of such Account Debtor who is a natural person; (ii) the
filing by or against such Account Debtor of a request, notice of intention
to appoint or petition for winding-up, dissolution, liquidation or
bankruptcy of such person or for the appointment of an administrative
receiver, receiver, manager or administrator in respect of such person or
its assets or any other bankruptcy, insolvency or similar laws of the
United Kingdom or any foreign jurisdiction now or hereafter in effect;
(iii) the making of any general assignment by such Account Debtor for the
benefit of its creditors; (iv) the appointment of a receiver or trustee of
such Account Debtor or of any of the assets of the Account Debtor; (v) the
institution by or against such Account Debtor of any other type of
insolvency proceeding or of any formal or informal proceeding for the
dissolution or liquidation of, settlement of claims against, or winding up
of affairs of, such Account Debtor; (vi) the non-payment generally of such
Account Debtor of its debts as they become due; or (vii) the cessation of
the business of such Account Debtor as a going
concern;
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|
|
(f)
|
if
fifty per cent. (50%) or more of the aggregate sterling equivalent of
outstanding Accounts owed at such time by the Account Debtor thereon is
classified as ineligible pursuant to the other provisions of this
definition;
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(g)
|
owed
by an Account Debtor which (i) does not maintain its registered office or
principal place of business in the United States, Canada (other than the
Province of Newfoundland), the United Kingdom or another country within
the European Union prior to 1 May 2004, (ii) is not organised under the
laws of the United States, Canada, part of the United Kingdom or another
country within the European Union prior to 1 May 2004 or any political
subdivision, state or province thereof, or (iii) is the government of any
foreign country or sovereign state, or of any state, province municipality
or other political subdivision thereof, or of any department, agency,
public corporation, or other instrumentality thereof, except to the extent
that such Account is secured or payable by a letter of credit satisfactory
to the Agent in its discretion;
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|
|
(h)
|
owed
by an Account Debtor which is an Affiliate or employee of such Borrower or
an Account which the Agent determines is an Intercompany Account or an
internal account;
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|
|
(i)
|
with
respect to Accounts of a Borrower, with respect to which either the
perfection, enforceability or validity of the security over such Account
constituted by the Debenture, or the Security Trustee’s or the Agent’s
right or ability to obtain direct payment to the Agent or, as appropriate,
the Security Trustee, of the proceeds of such Account, is governed by any
laws other than the local state or federal laws of the United States of
America (including the UCC) or the laws of Canada, any part of the United
Kingdom or another member of the European Union prior to 1 May
2004;
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|
|
(j)
|
owed
by an Account Debtor to which a Borrower or any Affiliate thereof is
indebted in any way, or which is subject to any right of set-off or
recoupment by the Account Debtor (or otherwise a contra account), unless
the Account Debtor has entered into an agreement acceptable to the Agent
to waive set-off rights, or if the Account Debtor thereon has disputed
liability or made any claim with respect to any other Account due from
such Account Debtor;
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(k)
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[intentionally
omitted];
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(l)
|
which
represents a sale on a bill-and-hold, guaranteed sale, sale and return,
sale on approval, consignment or other repurchase or return
basis;
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(m)
|
which
is evidenced by a promissory note or other similar
instrument;
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(n)
|
with
respect to which the Agent believes, in the exercise of its commercial
judgment, that the prospect of collection of such Account is impaired or
that such Account may not be paid by reason of the Account Debtor’s
financial inability to pay;
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(o)
|
which
arises out of a sale not made in the ordinary course of such Borrower’s
business;
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(p)
|
with
respect to which the goods giving rise to such Account have not been
shipped and delivered to and accepted by, or have been rejected or
objected to by, the Account Debtor or the services giving rise to such
Account have not been fully performed by such Borrower, and, if
applicable, accepted by the Account Debtor, or the Account Debtor revokes
its acceptance of such goods or
services;
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(q)
|
owed
by an Account Debtor or group of affiliated Account Debtors which is
obligated to the Borrowers, or any of them, representing Accounts the
aggregate unpaid balance of which exceeds ten per cent. (10%) of the
aggregate unpaid balance of all Accounts owed to the Borrowers at such
time by all of the Borrowers’ Account
Debtors;
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(r)
|
which
is not subject to a first priority, perfected Security Interest in favour
of the Security Trustee, for the benefit of the Beneficiaries established
in a manner satisfactory to the
Agent;
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(s)
|
owed
by an Account Debtor incorporated outside the United Kingdom with whom
such Borrower is trading in excess of its agreed credit
limits;
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(t)
|
with
respect to which such Borrower or the Agent has deemed such Account as
uncollectible or has any reason to believe that such Account is
uncollectible; and
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(u)
|
which
the Agent determines, in its commercial discretion, is ineligible for any
other reason.
|
The Agent
will consider a request from BMUK for the inclusion of Accounts in excess of ten
per cent. (10%) of the total Eligible Accounts (as described in paragraph (q))
on a case by case basis, upon production by BMUK of such financial or other
information regarding the business condition (financial or otherwise) of the
Borrowers and the Group as the Agent may require and upon BMUK demonstrating to
the satisfaction of the Agent, an improvement in its trading and financial
position since 20 October 2005.
If any
Account at any time ceases to be an Eligible Account, then such Account shall
promptly be excluded from the calculation of the Maximum Eligibility Amount and
the Revolving Facility Amount;
Eligible Inventory: with
effect from the Inventory Eligibility Date, if any, Inventory valued at the
lower of cost (on a FIFO basis) or market value, which is eligible as the basis
for Revolving Loans, based on such criteria as the Agent may from time to time
establish in its reasonable commercial discretion;
Environmental Authorisation:
any authorisation, permit, licence, consent, registration or other
approval required by or pursuant to any Environmental Law;
Environmental Laws: all
applicable laws, regulations, codes of practice, circulars, statutory guides,
guidance notes and the like (whether in the United Kingdom or in any other
jurisdiction in which any Obligor carries on its business or in which its assets
may be situated) relating to contamination, human health, safety or the
environment including but not limited to those relating to Discharges, waste,
nuisance, health and safety, noise, packaging or the manufacture, processing,
use, handling, treatment, storage, labelling, recovery, recycling, transport or
disposal of Hazardous Substances;
Equipment: in relation to each
Trading Company, all of its now owned and hereafter acquired machinery,
equipment, furniture, furnishings, fixtures and other tangible personal property
of any kind (except Inventory), as well as all of such types of property leased
by it and all of its rights and interest with respect thereto under such leases
together with all present and future additions and accessions thereto and
replacements therefor, component and auxiliary parts and supplies used or to be
used in connection therewith and all substitutes for any of the foregoing, and
all manuals, drawings, instructions, warranties and rights with respect thereto,
wherever any of the foregoing is located;
Event of Default: any of those
events specified in Clause 17.1 (Events of
Default);
Exceptional Items: the meaning
given to it in Clause 15.4 (Financial
Ratios);
Excess
Availability: at any time, the amount, if any, by which the
Revolving Facility Amount exceeds the Aggregate Exposure at such
time;
Facility Office: in relation
to a Lender at any time, the office set out under its name at the end of this
Agreement or, in the case of a Transferee, in the Transfer Certificate to which
it is a party as Transferee or, in the case of a Lender which is an assignee or
other successor of any other Lender, the office notified to the Agent by the
assignee or other successor on or before the date it becomes a Lender or such
other office as such Lender may from time to time notify to the
Agent;
Fee Letter: means any letter
or letters dated on or about the date of this Agreement and/or the date of a
Supplemental Agreement between the Arranger and BMUK (or the Agent and/or the
Security Trustee and BMUK) setting out and/or relating to any of the fees
referred to in Clause 22 (Fees) and “Fee Letter (2008)” means such
letter dated 21 May 2008;
Finance Documents: this
Agreement, the Invoice Discounting Agreements, any Fee Letter, any Accession
Notice, any Hedging Agreement, the Security Documents, the Supplemental
Agreements, the IBM Standstill Agreement, the Reichl Standstill Agreement,
documents evidencing or constituting Bank Products and any other agreement,
deed, notice, document or certificate from time to time designated as such by
the Agent and BMUK;
Financial Quarter: any period
of three months in any Financial Year, ending on the day which is, respectively,
three, six or nine months after the first day of that Financial Year or on the
last day of that Financial Year;
Financial Statements:
according to the context in which it is used, the Pro-Forma Balance Sheet or any
financial statements required to be delivered to the Agent pursuant to Clause
15.2 (Provision of Financial
Information) and complying with the provisions of Clause 15.3 (Financial Information – basis of
preparation);
Financial Year: any period of
twelve months ending on 31 December;
Foreign Currency: dollars,
euros or such other currency which is freely transferable and freely convertible
into sterling as may at any time be specifically agreed by the
Agent;
French IDF Company: Bell
Microproducts Sarl, a corporation incorporated under the laws of France with
registered number 43474497500013 and having its registered office at 23 avenue
General Leclerc, 92340, Bourg La Reine, Paris, France;
French Invoice Discounting
Agreement: the invoice discounting agreement dated 15 December 2004 and
made between the French IDF Company and Bank of America, National Association
acting through its Paris branch at 51 rue Francois 1er, 75008 Paris
France;
French Bank Accounts Pledge:
any pledge in respect of the Company Accounts of the French IDF Company,
in form and substance satisfactory to the Agent and the Receivables
Purchaser;
Group: BMEH and its
Subsidiaries at any time including, whether or not a Subsidiary of BMEH, each
IDF Company (but excluding, in each case, unless the Agent otherwise agrees, any
member of the Restricted Group) and “Group Company” shall mean any
one of them;
Guarantee: any guarantee
(which has been specifically agreed between the relevant Borrower and the Agent)
of the obligations of any person issued by the Issuer at the request of that
Borrower pursuant to the terms of Clause 6.4 (Letters of Credit and
Guarantees);
Guarantors: each Secured
Guarantor and each Unsecured Guarantor and “Guarantor” means any one of
them;
Hazardous Substance: any
radioactive emissions and any natural or artificial substance (whether in solid
or liquid form or in the form of a gas or vapour and whether alone or in
combination with any other substance) capable of causing harm to the
environment, human health or welfare or to any organism, including (without
limitation) any type of waste or any form of energy;
Hedge Provider: the Arranger,
any Lender or any other bank or financial institution of international standing
whose long term unsecured debt securities are, on the date that it enters into
any Hedging Agreement, rated at least A+ by S&P or A1 by
Moody’s;
Hedging Agreement: any
agreement or instrument between an Obligor and a Hedge Provider relating to the
hedging of an interest rate or a currency exposure (including a swap, option,
cap, collar or floor);
IBM Entities: means Nederland
Financieringen B.V., IBM Belgium Financial Services S.A. and IBM Deutschland
Kreditbank GmbH (as agent for the foregoing entities) (and “IBM Entity” means any one of
them);
IBM Standstill Agreement: the
standstill agreement dated on or about 20 December 2005 and entered into between
(1) IBM Deutschland Kreditbank GmbH (as agent for the other IBM Entitites), (2)
the Agent and the Security Trustee and (3) BMEH;
IDF Companies: means the
Belgian IDF Company, the French IDF Company and the Italian IDF Company and any
other company which has entered into an Invoice Discounting Agreement and which
has consequently been designated an IDF Company by the Receivables Purchaser
from time to time and “IDF
Company” means any one of them;
IDF Guarantee: the guarantee
by the Borrowers contained in clause 7 (Guarantee) of the
Supplemental Agreement dated 15 December 2004;
IDF Portfolio Loss: an amount
equal to the amount by which the Remittances (as defined in the Accounts
Transfer Conditions) received in respect of an Account (as defined in the
Accounts Transfer Conditions) purchased by the Receivables Purchaser pursuant to
an Invoice Discounting Agreement fall short of the Purchase Price (as defined in
the Accounts Transfer Conditions) paid by the Receivables Purchaser pursuant to
that Invoice Discounting Agreement less the amount (if any) received by the
Receivables Purchaser by way of repurchase consideration or indemnity from the
relevant IDF Company, or from any other Obligor, in respect of that
Account;
Information Memorandum: the
document in the form approved by BMUK concerning the Group which, at BMUK’s
request, and on its behalf, was prepared by the Arranger in relation to the
transactions contemplated by this Agreement and distributed to selected
financial institutions;
Inter Company Sale Agreement:
the inter company sale agreement dated 17 March 2005 between BMUK and the
USD Co pursuant to which BMUK will sell US Inventory acquired by it to the USD
Co and the USD Co will, immediately prior to BMUK selling such US Inventory to
its customers, re-sell such US Inventory back to BMUK to enable BMUK to make
such sales;
Intercompany Accounts: all
assets and liabilities, however arising, which are due to any Trading Company
from, which are due from any Trading Company to, or which otherwise arise from
any transaction by any Trading Company with, any Affiliate;
Interest Period: any of those
periods referred to in Clause 7 (Interest and Interest
Periods) (by reference to which interest is calculated on any LIBOR
Revolving Loan) or in Clause 18.2 (Default Interest Periods) (by
reference to which interest is calculated on an unpaid sum) provided that, save
in respect of any Interest Periods relating to an unpaid sum, no Interest Period
shall extend beyond the Termination Date;
Inventory: in relation to each
Trading Company, all of its now owned and hereafter acquired inventory, goods
and merchandise, wherever located, to be furnished under any contract of service
or held for sale or lease, all raw materials, work-in-progress, finished goods,
returned goods and materials and supplies of any kind, nature or description
which are or might be used or consumed in its business or used in connection
with the manufacture, packing, shipping, advertising, selling or finishing of
such goods, merchandise and other personal property, and all documents of title
or other documents representing them;
Inventory Eligibility Date:
the date, if any, upon which the Lenders shall have agreed, and the Agent
shall have advised BMUK to that effect, that Eligible Inventory may be eligible
as the basis for Revolving Loans;
Invoice Discounting
Agreements: the Belgian Invoice Discounting Agreement, the French Invoice
Discounting Agreement and the Italian Invoice Discounting Agreement including,
in each case, the Account Transfer Conditions incorporated therein in accordance
with their respective terms together with any other Invoice Discounting
Agreement entered into from time to time by an IDF Company, including in each
case, the Accounts Transfer Conditions incorporated therein in accordance with
their respective terms;
Invoice Discounting
Facilities: the invoice discounting facilities made available or to be
made available to the IDF Companies under the Invoice Discounting
Agreements;
Invoice Discounting Facility
Exposure: at any time, the aggregate of the Total MDL Balance (as defined
in the Accounts Transfer Conditions) at such time, the sterling equivalent of
any Prepayments to be made on the date on which the computation falls to be made
and the sterling equivalent of all other amounts owing, actually or
contingently, by the IDF Companies under the Invoice Discounting Agreements at
such time, as notified to the Agent from time to time by each Receivables
Purchaser;
Italian IDF Company: Bell
Microproducts S.r.l, a corporation incorporated under the laws of Italy with
registered number 13456670150 and having its registered office at Via V Pisani
12/a, 20124 Milan, Italy;
Italian Invoice Discounting
Agreement: the invoice discounting agreement dated 15 December 2004 and
made between the Italian IDF Company and Bank of America, National Association
acting through its Milan branch at Corso Matteotti 10,20121 Milan, Italy and
includes any agreement from time to time entered into in order to extend the
validity of such invoice discounting agreement in order to comply with Italian
law;
Italian Bank Accounts Pledge:
any pledge in respect of the Company Accounts of the Italian IDF Company, in
form and substance satisfactory to the Agent and the Receivables
Purchaser;
Latest Projections: the
projections most recently received by the Agent pursuant to clause
15.2.3;
Lender: means:
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(i)
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any
Original Lender; and
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(ii)
|
any
bank, financial institution, trust, fund or other entity which has become
a party to this Agreement in accordance with Clause 28.3 (Assignments and Transfers by
Lenders),
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which in
each case has not ceased to be a party to this Agreement in accordance with the
terms of this Agreement;
Letter of Credit: any standby
letter of credit (which has been specifically agreed between a Borrower and the
Agent) issued by the Issuer at the request of a Borrower pursuant to the terms
of Clause 6.4 (Letters of
Credit and Guarantees);
Letter of Credit and Guarantee
Fee: the meaning given to it in Clause 22.5 (Letter of Credit and Guarantee
Fee);
LIBOR: in relation to any
LIBOR Revolving Loan or any unpaid sum and any Interest Period relating to
it:
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(i)
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the
applicable Screen Rate; or
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(ii)
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(if
no Screen Rate is available for the currency or Interest Period of that
Loan or unpaid sum) the arithmetic mean of the rates (rounded up to 4
decimal places) as supplied to the Agent at its request quoted by the
Reference Banks to leading banks in the London Interbank
Market,
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at or
about 11.00 a.m. in London on the Quotation Date for a period comparable to the
relevant Interest Period;
LIBOR Revolving Loan: a
revolving loan made or to be made by the Lenders in relation to which interest
thereon is to be calculated by reference to LIBOR;
Limit Reduction Notice: a
notice from BMUK to the Agent in form and substance acceptable to the Agent
confirming that the loans and credit granted to the Parent by BMUK, do not
exceed $33,000,000 and requesting that the Parent Loan Limit be reduced to
$33,000,000 in accordance with Clause 7.7 (Reduction of the Parent Loan
Limit);
Loans: each Revolving Loan and
Swingline Loan and “Loan”
means any one of them;
Majority Lenders: Lenders
whose Outstandings together exceed sixty-six and two-thirds per cent (66 2/3%) of the
Outstandings of all the Lenders (or, if there are no Outstandings, Lenders whose
Commitments together exceed sixty-six and two-thirds per cent (66 2/3%) of the
Total Commitments) provided that, if at any time there are only two Lenders
party to this Agreement “Majority Lenders” shall mean
both of them together;
Management Accounting Period:
each period of one calendar month ending on the last day of that
month;
Management Accounts: the then
latest unaudited but consolidated and consolidating management accounts of BMEH,
BMEP, BMEBV, BMEE, BMUK and the Group (other than the members of the Restricted
Group but including in any event each IDF Company) in respect of each Management
Accounting Period to be prepared in accordance with Applicable GAAP and in a
format agreed by the Agent required to be delivered to the Agent pursuant to
Clause 15.2.2 (Management
Accounts);
Mandatory Cost: the percentage
rate per annum calculated by the Agent in accordance with Schedule 5 (Mandatory Cost
Formulae);
Material Contracts: each of
the contracts details of which are set out in Schedule 10 (The Material Contracts) and
any other contract from time to time designated as a Material Contract by the
Agent and BMUK;
Maximum Eligibility Amount:
the amount which is equal to the sum of:
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(a)
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80%
of the Net Amount of Eligible Accounts (the “Accounts Advance
Rate”). If at any time the Agent determines that the
Dilution Percentage for the Borrowers (as a whole) has been equal to or
less than 5% for a continuous period of three (3) months ending on the
date of such determination, the Agent, in its absolute discretion (upon
completing a field exam and such other reviews as it deems appropriate),
may increase the Accounts Advance Rate to 85%. “Dilution Percentage”
means the percentage figure obtained by dividing (A) all credits,
allowances, discounts, write-offs, contra-accounts and other set-offs
incurred in any month which reduce the value of Accounts for the Borrowers
(as a whole) by (B) the gross amount of all cash received and retained in
the Receivables Accounts from all Accounts created by the Borrowers (as a
whole) in such month; notwithstanding but without prejudice to the
foregoing, the Agent shall have the right to reduce the Accounts Advance
Rate or to establish reserves, if the Agent at any time determines that
the Dilution Percentage has increased;
plus
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(b)
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after
the Inventory Eligibility Date, if applicable, up to 60% of the value of
Eligible Inventory;
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Maximum Revolving Credit Line:
the maximum amount which is available under this Agreement; being £60,000,000
or, if the Agent has received a notice in accordance with Clause 2.7 (Increase of Maximum Revolving Credit
Line) and the period referred to in Clause 2.7 (Increase of Maximum Revolving Credit
Line) has expired, £76,000,000 (or such other amount as may be agreed
between the Agent and BMUK from time to time);
Net Amount of Eligible Accounts:
the gross amount of Eligible Accounts less sales, excise or similar
taxes, and less returns, discounts, claims, credits and allowances of any nature
at any time issued, owing, granted, outstanding, available or claimed in respect
of such Eligible Accounts;
Non-Vesting Accounts: has the
meaning given to it in the Accounts Transfer Conditions;
Notice of
Conversion/Continuation: the meaning given to it in Clause 7.5.2 (Conversion and Continuation of
Revolving Loans);
Obligors: each Borrower, each
Charging Company, each Guarantor and each other member of the Group which has,
or may be required by the Agent to have, any liability from time to time,
whether actual or contingent, present or future, for the payment of any amounts
outstanding or capable of becoming outstanding under any of the Finance
Documents and “Obligor”
means any one of them;
Original Sterling Amount: in
relation to a Loan, the amount specified in sterling in the Utilisation Notice
relating to that Loan (or, if the amount requested is denominated in a Foreign
Currency, that amount converted into sterling at the Agent’s Spot Rate of
Exchange on the date which is three business days before the Utilisation Date
or, if later, on the date the Agent received the Utilisation
Notice);
Outstandings: in relation to a
Lender at any time, the Original Sterling Amount of the aggregate principal
amount of its share of all (if any) Utilisations, including (in relation to the
Issuer) the Original Sterling Amount of the aggregate of its contingent
liabilities in respect of any such Utilisations consisting of the issue of any
Letters of Credit or Guarantees outstanding at that time;
Parent: Bell Microproducts
Inc.;
Parent Financial Documents:
means:
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(a)
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the
quarterly management accounts of the Parent in respect of each Financial
Quarter to be prepared in accordance with Applicable GAAP and in a format
agreed by the Agent required to be delivered to the Agent pursuant to
Clause 15.2.2 (Management Accounts);
and
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(b)
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a
certificate signed by an authorised signatory of the Parent certifying
that no event or circumstance of a type described under Clauses 17.1.15
(Cross Default)
to 17.1.13 (Judgments) was, at the
end of the Financial Quarter to which the relevant quarterly management
accounts relate, outstanding in relation to the Parent and, without
limitation, that the Parent is not in breach of any of the financial
covenants set out at Clause 9.13 of the facility agreement dated 28
September 2008 (as amended) and entered into between the Parent and
Wachovia Capital Finance Corporation (Western) and other lenders, Clause
6.2(g) of the facility agreement dated 30 June 2008 (as amended) and
entered into between the Parent and The Teachers’ Retirement System of
Alabama and other lenders, and Clause 6.2(g) of the facility agreement
dated 2 October 2006 (as amended) entered into between the Parent and The
Teachers’ Retirement System of Alabama and The Employees’ Retirement
System of Alabama (or any financial covenant in any agreement
entered into for the purpose of refinancing amounts owed under any of
those agreements).
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Parent Loan Limit: prior to
the Agent receiving a Limit Reduction Notice in accordance with Clause 7.7
(Reduction of the Parent Loan
Limit), an amount of $50,000,000 (or the equivalent in any other
currency) and after the Agent receives a Limit Reduction Notice in accordance
with Clause 7.7 (Reduction of
the Parent Loan Limit), an amount of $33,000,000 (or the equivalent in
any other currency).
Participating Proportion: in
relation to a Lender and a sum payable to or by it on any date, the proportion
which the Commitment of that Lender bears to the Total Commitments on that
date;
Permitted Encumbrance: any
encumbrance permitted under Clause 16.3.1 (Encumbrances);
Permitted Indebtedness: any
indebtedness permitted under Clause 16.3.5 (Indebtedness);
Pledge Agreements: the Belgian
Pledge, the French Bank Accounts Pledge and the Italian Bank Accounts Pledge and
any other pledge agreement from time to time entered into by an IDF Company
pursuant to the terms of an Invoice Discounting Agreement;
Pre-Approved Acquisition: any
acquisition of any business, shares or other assets of any kind by any Group
Company which does not require the prior written consent or approval of the
Agent or the Lenders by virtue of the fact that both prior to and at the time of
its completion, each of the Approved Acquisition Conditions were
satisfied;
Prepayment: the meaning given
to it in the Accounts Transfer Conditions;
Qualifying Lender: a lender
which either:
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(i)
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is
a bank as defined in section 840A of the Taxes Act which, for the purposes
of section 349 of the Taxes Act, is within the charge to corporation tax
as regards all interest payable to it under this Agreement;
or
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(ii)
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is
a lender (a “Treaty
Lender”) which has the benefit of a double tax treaty which
provides a complete exemption from UK income tax on
interest; or
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(iii)
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is
a lender (a “UK Non-Bank
Lender”) which is beneficially entitled to interest payable to that
lender in respect of a Loan under this Agreement and
is:
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(a)
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a
company resident in the United Kingdom for United Kingdom tax
purposes;
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(b)
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a
partnership each member of which is a company resident in the United
Kingdom for United Kingdom tax purposes;
or
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(c)
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a
company not so resident in the United Kingdom which carries on a trade in
the United Kingdom through a branch or agency and which is required to
bring that interest into account in computing its chargeable profits
(within the meaning given by section 11(2) of the Taxes
Act),
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and has
given a Tax Confirmation to the Borrowers;
Quotation Date: in relation to
any period for which an interest rate is to be determined, the day on which
quotations would ordinarily be given by prime banks in the London Interbank
Market for deposits in the currency in relation to which such rate is to be
determined for delivery on the first day of that period provided that, if, for
any such period, quotations would ordinarily be given on more than one date, the
Quotation Date for that period shall be the last of those dates;
Receivables Account: has the
meaning given to it in the Security Documents;
Receivables Purchaser: Bank of
America, N.A. in its capacity as receivables purchaser under the Invoice
Discounting Agreements;
Reference Banks: such banks as
may be appointed by the Agent in consultation with BMUK;
Reichl Standstill Agreement:
the standstill agreement dated 23 November 2005 and made between (1) Mr
Klaus Reichl, (2) BMEH, (3) the Agent and the Security Trustee and (4) Bell
Microproducts Solutions GmbH;
Relevant Accounting Information:
the meaning given to it in Clause 15.4 (Financial
Ratios);
Relevant Agreements: the
Finance Documents, the Material Contracts and any Approved Acquisition
Documents;
Reservations: the principle
that equitable remedies are remedies which may be granted or refused at the
discretion of the court, the limitation of enforcement by laws relating to
bankruptcy, insolvency, liquidation, reorganisation, court schemes, moratoria,
administration and other laws generally affecting the rights of creditors, the
time barring of claims under the Limitation Act 1980, the possibility that an
undertaking to assume liability for or to indemnify against non-payment of
United Kingdom stamp duty may be void, the unenforceability of penalty
provisions and defences of set-off or counterclaim and similar principles
arising under the laws of any other jurisdiction in which relevant obligations
must be performed;
Restricted Group:
collectively, Bell Microproducts BV, a company incorporated in The
Netherlands registered at the Flevoland Commercial Register with number KvK:
39061489, its Subsidiaries for the time being and Bell Microproducts GmbH, a
company incorporated in Germany registered at the Munich Commercial Register
with number HRB162143 and Bell Microproducts Solutions NV, a company registered
in Belgium in Mechelen with number 0461 3609 02 and “member of the Restricted Group”
means any one of them but so that an IDF Company shall be deemed not to
be a member of the Restricted Group even if this is in fact the
case;
Restricted Investment: any
acquisition of any assets by any Group Company in exchange for cash or other
assets, whether in the form of an acquisition of shares, debt securities or
other indebtedness or obligation, or the purchase or acquisition of any other
assets, or a loan, advance, capital contribution or subscription, except the
following:
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|
(i)
|
acquisitions
of fixed assets to be used in the business of such Group Company, so long
as the acquisition costs thereof constitute Capital Expenditure permitted
hereunder; and
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|
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(ii)
|
acquisitions
of goods held for sale or lease or to be used in the rendering of services
by such Group Company in the ordinary course of
business;
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|
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(iii)
|
any
acquisition of shares, debt securities or other indebtedness or
obligation, or the making of any loan, advance, capital contribution or
subscription by any Group Company in or to any other Group Company which
is loss-making and solely for the purpose of recapitalising such
loss-making Group Company, provided always that, unless (A) the funds (the
“investment funds”) employed by the investing Group Company have been made
available to it wholly by the Parent (directly or through BMEH) and not by
the utilisation of any amounts drawn down under this Agreement and (B) the
investment funds are the proceeds of a new capital injection (whether by
way of debt or equity) into the investing Group Company occurring after 20
October 2005 and not moneys already available to such investing Group
Company, then such capital injection by the relevant investing Group
Company may not exceed £500,000 without the prior written consent of the
Agent;
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(iv)
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any
Pre-Approved Acquisition;
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Revolving Facility: the
facility referred to in Clause 2.1 (The Revolving
Facility);
Revolving Facility Amount: the
lesser of:
(i) the
Maximum Revolving Credit Line; and
(ii) the
Maximum Eligibility Amount;
Revolving Loan: each LIBOR
Revolving Loan and each Alternative Rate Revolving Loan made or to be made by
the Lenders pursuant to the Revolving Facility;
Screen Rate: the British
Bankers Association Interest Settlement Rate for the relevant currency and
period displayed on page 3750 of the Telerate screen; if the agreed page is
replaced or service ceases to be available, the Agent may specify another page
or service displaying the appropriate rate after consultation with BMUK and the
Lenders;
Secured Guarantor: each
Charging Company;
Secured Obligations: the
meaning given to it in the Debenture;
Security Documents: the
Debenture, the Priority Agreement, the Pledge Agreements and any document
creating an encumbrance over any asset of any Obligor and/or any IDF Company
entered into pursuant thereto or pursuant to any other Finance Document and any
other security document granted to the Security Trustee as security for the
obligations of the Obligors and/or any IDF Company to the
Beneficiaries;
Security Interest:
collectively the encumbrances granted to the Security Trustee pursuant to
the Security Documents or any other agreement or instrument;
St. Crispin Mortgagee: HSBC
Bank PLC as mortgagee of the St. Crispin Property in connection with such
borrowing or such other bank or financial institution which may at any time
refinance all or any part of such borrowings, provided that such bank or
financial institution shall have entered into an intercreditor deed or other
priority arrangement on terms and conditions mutually acceptable to such bank or
financial institution, BMUK and the Agent;
St. Crispin Priority
Agreement: the priority agreement, in form and substance satisfactory to
the Agent, entered or to be entered into between (1) BMUK, (2) the Security
Trustee and (3) HSBC Bank PLC;
St. Crispin Property: all that
freehold property registered under title number LA596977 and more particularly
known as land to the west side of St. Crispin Way, Haslingden, Rossendale,
Lancashire;
Subsidiary: of a person means
any company or entity directly or indirectly controlled by such
person;
Supplemental Agreements: the
agreements supplemental to this Agreement dated 3 December 2003, 22 September
2004, 15 December 2004, 17 March 2005, 16 August 2005, 20 October 2005, 2
January 2007, 21 May 2008 and 18 December 2009 entered into by the parties
hereto;
Supplemental Deed: a deed
supplemental to the Debenture or any other Security Document, substantially in
the form set out in schedule 9 to the Debenture or, as the case may be,
substantially in the form set out in such Security Document, entered or to be
entered into by a Group Company pursuant to which that Group Company accedes to
the Debenture or, as the case may be, any other Security Document, as a Charging
Company;
Swingline Loan: a swingline
loan made or to be made by the Swingline Lender pursuant to Clause 6.3 (Swingline
Loans);
TARGET: the
Trans-European Automated Real-time Gross Settlement Express Transfer payment
system which utilises interlinked national real time gross settlement systems
and the European Central Bank’s payment mechanism and which began operations on
4 January 1999.
TARGET2: the
Trans-European Automated Real-time Gross Settlement Express Transfer payment
system which utilises a single shared platform and which was launched on 19
November 2007.
TARGET Day:
(a) until
such time as TARGET is permanently closed down and ceases operations, any day on
which both TARGET and TARGET2 are; and
(b) following
such time as TARGET is permanently closed down and ceases operations, any day on
which TARGET2 is,
open for
the settlement of payments in euro.
Taxes Act: the Income and
Corporation Taxes Act 1988;
Tax Confirmation: a
confirmation by a person which is a Lender under this Agreement that the person
beneficially entitled to interest payable to that Lender in respect of a Loan
under this Agreement is either:
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|
(i)
|
a
company resident in the United Kingdom for United Kingdom tax purposes;
or
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|
|
(ii)
|
a
partnership each member of which is a company resident in the United
Kingdom for United Kingdom tax purposes;
or
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|
|
(iii)
|
a
company not so resident in the United Kingdom which carries on a trade in
the United Kingdom through a branch or agency and which is required to
bring that interest into account in computing its chargeable profits
(within the meaning given by section 11(2) of the Taxes
Act);
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Termination Date: subject to
Clause 9.5 (Extension of
Termination Date), 20 October 2011;
Total Commitments: the
aggregate at any time of the Commitments of all the Lenders;
Total Outstandings: the
aggregate at any time of the Outstandings of all the Lenders;
Trading Company: each Group
Company with Eligible Accounts and, if applicable following the Inventory
Eligibility Date, with such Eligible Inventory as the Agent may agree in
writing;
Transfer Certificate: a
certificate substantially in the form set out in Schedule 6 (Form of Transfer Certificate)
completed in accordance with Clause 28 (Assignments and
Transfers);
Transferee: a Lender or other
financial institution which is a Qualifying Lender to which a Lender seeks to
transfer rights and obligations under this Agreement in accordance with Clause
28 (Assignments and
Transfers);
Trust Property: all or any of
the assets, rights, powers, authorities and discretions at any time subject to
or expressed to be subject to the security from time to time constituted by or
arising pursuant to the Security Documents or vested in the Security Trustee or
given under or pursuant to the Security Documents including all income and other
sums at any time received or receivable by the Security Trustee in respect
thereof;
Unsecured Guarantor: BMEH,
BMEP, Bell Microproducts S.a.r.l., Bell Microproducts S.r.l., Bell Microproducts
BVBA and each other Group Company which from time to time accedes to this
Agreement as an unsecured guarantor by executing and delivering to the Agent an
Accession Notice in accordance with Clause 3 (Additional Borrowers and Unsecured
Guarantors) and “Unsecured Guarantor” means any one of them;
Unused Line Fee: the meaning
given to it in Clause 22.1 (Unused Line
Fee);
US Inventory: Inventory
purchased by BMUK from third party suppliers where the purchase price paid by
BMUK to such third party suppliers is settled in dollars;
USD Co: Bell Microproducts
(US) Limited (Company Number: 5305904) whose registered office is at Cox Lane,
Chessington, Surrey KT9 1SJ;
Utilisation: a utilisation
consisting of the drawdown of a Swingline Loan or Revolving Loan or the issue by
the Issuer of a Letter of Credit or Guarantee;
Utilisation Notice: a notice
of Utilisation substantially in the form set out in Schedule 4 (Form of Utilisation Notice);
and
VAT: value added tax or any
similar tax substituted therefor.
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1.2
|
Construction
|
Any
reference in this Agreement to:
|
1.2.1
|
the
“Agent”, the
“Arranger”, the
“Receivables
Purchaser”, the “Security Trustee”, the
“Issuer”, the
“Swingline Lender”
or any “Lender”
shall be construed so as to include their respective successors,
Transferees and assignees in accordance with their respective
interests;
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|
1.2.2
|
“this Agreement” or to
any other agreement or document shall, unless the context otherwise
requires, be construed as a reference to this Agreement or such other
agreement or document as the same may from time to time be amended,
varied, supplemented, novated or replaced and shall include any document
which is supplemental to, is expressed to be collateral with, or is
entered into pursuant to or in accordance with, the terms of this
Agreement or, as the case may be, such other agreement or
document;
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|
1.2.3
|
the
“assets” of any
person shall be construed as a reference to all or any part of its
business, operations, undertaking, property, assets, revenues (including
any right to receive revenues) and uncalled
capital;
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|
1.2.4
|
a
“business day” is
a reference to a day (other than a Saturday or Sunday) on which banks
generally are open for business in London
and:
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|
(a)
|
(in relation to any date for
the payment or purchase of a currency other than euro) in the principal
financial centre of the country of that currency;
or
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|
(b)
|
(in
relation to any date for the payment or purchase of euro) which is a
TARGET Day;
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|
1.2.5
|
a
“capital adequacy
regulation” shall be construed as a reference to any guideline,
request or directive of any central bank or public authority, or any other
law, rule or directive or regulation, whether or not having the force of
law, in each case, regarding capital adequacy of any bank or of any
corporation controlling a bank;
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|
1.2.6
|
a
document being a “certified copy” of
another means such document is certified by a duly authorised officer of
the relevant Obligor (or by reputable solicitors to the relevant Obligor
from time to time) as being a true, complete, accurate and up-to-date copy
of the original;
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|
1.2.7
|
a
person being “controlled” by another
means that that other (whether directly or indirectly and whether by the
ownership of share capital, the possession of voting power, contract or
otherwise) has the power to appoint and/or remove all or the majority of
the members of the board of directors or other governing body of that
person or otherwise controls or has the power to control the affairs and
policies of that person;
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|
1.2.8
|
a
“credit agreement”
shall be construed as a reference to any conditional sale agreement (as
defined in the Consumer Credit Act 1974), hire purchase or credit sale
agreement or other similar agreement entered into primarily as a method of
financing the acquisition of the asset which is the subject of such
agreement;
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|
1.2.9
|
a
Default which is “continuing” shall be
construed as a reference to a Default which has not been remedied or
waived;
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|
1.2.10
|
“dollars” and “US$” shall mean the
lawful currency of the United States of
America;
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|
1.2.11
|
“EMU legislation” means
legislative measures of the European Communities for the introduction of,
changeover to or operation of the
euro;
|
|
1.2.12
|
an
“encumbrance”
shall be construed as a reference to a mortgage, charge, assignment by way
of security, pledge, lien, hypothecation, right of set-off, reservation of
title arrangement, preferential right (save as arising under the general
law for the protection of certain classes of creditors) or any trust,
flawed asset or other arrangement for the purpose of and having a similar
effect to the granting of security, or other security interest of any
kind;
|
|
1.2.13
|
“euro” and “EUR” means the single
currency adopted by certain participating member states of the European
Communities in accordance with EMU
legislation;
|
|
1.2.14
|
a
“finance lease”
shall be construed as a reference to any lease or other similar agreement
entered into primarily as a method of financing the use of the asset which
is the subject of such lease or
agreement;
|
|
1.2.15
|
“financial indebtedness”
shall be construed as a reference to any indebtedness under or in respect
of:
|
|
(a)
|
moneys
borrowed or raised (including by way of preference share capital but
excluding by way or ordinary shares);
|
|
(b)
|
any
debenture, bond, note, loan stock, commercial paper or similar
instrument;
|
|
(c)
|
any
acceptance credit, bill-discounting, note purchase or documentary credit
facility;
|
|
(d)
|
any
credit agreement or finance lease;
|
|
(e)
|
any
receivables purchase, factoring or discounting arrangement under which
there is recourse in whole or in part to any member of the Group
including, without limitation, the Invoice Discounting
Agreements;
|
|
(f)
|
credit
(other than normal trade credit for a period not exceeding 90 days) or
deferred payment arrangements in respect of the acquisition or
construction price of assets acquired or constructed or the purchase price
of services supplied;
|
|
(g)
|
any
other transaction having the commercial effect of a borrowing or other
raising of money entered into by a person to finance its business or
operations or capital requirements; or
|
|
(h)
|
(without
double counting) any guarantee or other assurance against financial loss
in respect of the indebtedness of any person arising under an obligation
falling within (a) to (g)
above;
|
|
1.2.16
|
the
“Financial
Statements” or the “Management Accounts”
shall be construed so as to include any notes, reports, statements or
other documents annexed or attached to any of
them;
|
|
1.2.17
|
a
“guarantee” shall
be construed so as to include an indemnity, bond, standby letter of credit
and any other obligation (whatever called) of any person to pay for,
purchase, provide funds (whether by the advance of money, the purchase or
subscription for shares or other securities, the purchase of assets or
services or otherwise) for the payment of, indemnify against the
consequences of default in the payment of, or otherwise be responsible
for, any indebtedness or other obligation of any other person (and
“guaranteed” and “guarantor” shall be construed
accordingly);
|
|
1.2.18
|
“indebtedness” shall be
construed as a reference to any obligation for the payment or repayment of
money, whether as principal or as surety and whether present or future,
actual or contingent;
|
|
1.2.19
|
a
document expressed to be “in the approved terms”
is a reference to a document the terms, conditions and form of which have
been initialled for the purpose of identification by or on behalf of the
Agent;
|
|
1.2.20
|
something
having a “material
adverse effect” on a person shall be construed as a reference to it
having a material adverse effect (i) on its financial condition, business
or operations or on the consolidated financial condition, business or
operations of it and its Subsidiaries or (ii) on its ability to comply
with its payment obligations under any Finance
Document;
|
|
1.2.21
|
a
“month” is a
reference to a period starting on one day in a calendar month and ending
on the numerically corresponding day in the next calendar month save that,
where any such period would otherwise end on a day which is not a business
day, it shall end on the next business day, unless that day falls in the
calendar month succeeding that in which it would otherwise have ended, in
which case it shall end on the preceding business day provided that, if a
period starts on the last business day in a calendar month or if there is
no numerically corresponding day in the month in which that period ends,
that period shall end on the last business day in that later
month;
|
|
1.2.22
|
a
“participating member
state” is a reference to any member state of the European
Communities which adopts or has adopted the euro as its lawful currency in
accordance with EMU legislation;
|
|
1.2.23
|
a
“person” shall be
construed as a reference to any individual, firm, company, corporation,
public authority or any association or partnership (whether or not having
separate legal personality) of two or more of the
foregoing;
|
|
1.2.24
|
a
“public authority”
shall be construed as a reference to any government of any country or
sovereign state or any political sub-division thereof or any department,
agency, public corporation or other instrumentality of any of the
foregoing;
|
|
1.2.25
|
a
“regulation” shall
be construed so as to include any regulation, rule, by-law, official
directive, requirement, request or guideline (whether or not having the
force of law) of any governmental body, agency, department or regulatory,
self-regulatory or other authority or
organisation;
|
|
1.2.26
|
“sterling” and “£” denotes the lawful
currency of the United Kingdom;
|
|
1.2.27
|
the
“sterling
equivalent” of (i) any amount denominated in a Foreign Currency
shall mean the equivalent in sterling of such amount as determined by the
Agent by reference to the Agent’s Spot Rate of Exchange and of (ii) any
amount denominated in sterling shall mean such sterling
amount;
|
|
1.2.28
|
“tax” shall be construed
so as to include any present and future tax, levy, impost, deduction,
withholding, duty or other charge of a similar nature (including, without
limitation, any penalty or interest payable in connection with any failure
to pay or any delay in paying any of the
same);
|
|
1.2.29
|
“tax on overall net
income” of a person shall be construed as a reference to tax (other
than tax deducted or withheld from any payment) imposed on that person by
the jurisdiction in which its principal office (and/or, in the case of a
Lender, its Facility Office) is located on (i) the net income, profits or
gains of that person world-wide or (ii) such of its net income, profits or
gains as arise in or relate to that
jurisdiction;
|
|
1.2.30
|
an
“unpaid sum” is a
reference to an unpaid sum as that term is defined in clause
18.1;
|
|
1.2.31
|
the
“winding-up”,
“dissolution”,
“administration”,
“receivership” or
“bankruptcy” of a
person and references to the “liquidator”, “administrator”, “receiver”, “administrative
receiver”, “receiver and manager”,
“manager” or
“trustee” of a
person shall be construed so as to include any equivalent or analogous
proceedings or, as the case may be, insolvency representative or officer
under the law of the jurisdiction in which such person or, as the case may
be, insolvency representative or officer is incorporated or constituted or
of any jurisdiction in which such person or, as the case may be,
insolvency representative or officer, carries on
business.
|
|
1.3
|
Any
reference in this Agreement to any statute or statutory provision shall,
unless the context otherwise requires, be construed as a reference to such
statute or statutory provision (including all instruments, orders or
regulations made thereunder or deriving validity therefrom) as in force at
the date of this Agreement and as subsequently re-enacted or
consolidated.
|
|
1.4
|
Any
reference in this Agreement to a time of day shall, save where the context
otherwise requires, be construed as a reference to London
time.
|
|
1.5
|
In
construing this Agreement general words introduced by the word “other”
shall not be given a restrictive meaning by reason of the fact that they
are preceded by words indicating a particular class of acts, matters or
things and general words shall not be given a restrictive meaning by
reason of the fact that they are followed by particular examples intended
to be embraced by the general
words.
|
|
1.6
|
The
illegality, invalidity or unenforceability of any provision of this
Agreement under the law of any jurisdiction shall not affect its legality,
validity or enforceability under the law of any other jurisdiction nor the
legality, validity or enforceability of any other provision of this
Agreement.
|
|
1.7
|
This
Agreement supersedes any previous agreement, whether written or oral,
express or implied, between the Original Borrowers, the Arranger, the
Agent, the Security Trustee and the Lenders, or any of them, in relation
to the subject matter of this
Agreement.
|
|
1.8
|
The
headings in this Agreement are for convenience only and shall not affect
its meaning and references to a clause, Schedule or paragraph are (unless
otherwise stated) to a clause of, or schedule to, this Agreement and to a
paragraph of the relevant Schedule.
|
|
1.9
|
This
Agreement may be signed in any number of counterparts, all of which taken
together shall constitute one and the same instrument. Any
party may enter into this Agreement by signing any such
counterpart.
|
|
1.10
|
Save
where the context otherwise requires, the plural of any term includes the
singular and vice versa.
|
|
1.11
|
Except
as provided in Clause 27.13 (Indemnity Provisions),
the terms of this Agreement may only be enforced by a party to it and the
operation of the Contracts (Rights of Third Parties) Act 1999 is
excluded. Notwithstanding such clause, the parties to this
Agreement do not require the consent of any third party to rescind or vary
this Agreement or any Finance Document at any
time.
|
|
1.12
|
Nothing
in this Agreement or envisaged hereby shall operate, whether directly or
indirectly, to constitute a partnership between any Obligor and any of the
Beneficiaries.
|
|
1.13
|
The
liabilities and obligations of the Obligors under the Finance Documents to
which each of them is expressed to be a party are and shall be construed
as being, joint and several.
|
|
2.
|
THE
REVOLVING FACILITY
|
The
Revolving Facility
|
2.1
|
Subject
to the terms and conditions of this Agreement, the Lenders shall make
available to the Borrowers a revolving credit facility (the “Revolving Facility”) of
up to the Maximum Revolving Credit Line. The Revolving Facility (as
described in Clause 6 (Utilisation of the Revolving
Facility)) shall consist of Revolving Loans (to be denominated in
sterling and/or, if agreed between the relevant Borrower and the Agent,
dollars, euro or one or more other Foreign Currencies) to be made by the
Lenders and, if specifically agreed by the Agent (on the instructions of
the Issuer), Letters of Credit and/or Guarantees to be issued by the
Issuer (subject to reimbursement by the relevant Borrower and each of the
Lenders on the terms set out in this Agreement) and Swingline Loans (to be
denominated in sterling and/or dollars, euros or such one or more other
Foreign Currencies as may be agreed between the relevant Borrower and the
Swingline Lender), to be made by the Swingline Lender (subject to
reimbursement by the Lenders on the terms set out in this Agreement) in a
maximum aggregate principal Original Sterling Amount not exceeding the
Revolving Facility Amount.
|
Purpose
|
2.2
|
The
Revolving Facility is to be applied to meet each Borrower’s general
working capital purposes and each Borrower shall apply all amounts raised
by it under this Agreement accordingly provided that none of the Agent,
the Security Trustee or any of the Lenders shall be obliged to concern
itself with the application of amounts raised by any Borrower under this
Agreement.
|
Obligations
Several
|
2.3
|
The
obligations of each Lender under this Agreement are
several. The failure by any Lender to perform its obligations
under this Agreement shall not affect the obligations of any Obligor
towards any other party to this Agreement nor shall any such other party
be liable for the failure by such Lender to perform its
obligations.
|
Rights
Several
|
2.4
|
The
rights of each Lender are several. The amount at any time owing
by any Borrower to any party under this Agreement shall be a separate and
independent debt from the amount owing to any other
party.
|
Financial
Assistance
|
2.5
|
None
of the proceeds of any Utilisation of the Revolving Facility under this
Agreement may be used in any way which infringes section 151 Companies Act
1985 or any similar or other statutory obligation whether in the United
Kingdom or elsewhere unless the provisions of sections 155 to 158 thereof
are actually complied with.
|
Continuing
Obligations
|
2.6
|
The
obligations of any party under or in respect of Clauses 10 (Taxes), 11 (Increased Costs), 18
(Default
Interest), 19 (Indemnities and Currency of
Account), 20.7 (Refunding of Payments),
24 (Costs, Expenses and
Stamp Duties) and 26.9 (Indemnity) shall
continue even after the date (the “Discharge Date”) upon
which the Total Commitments have been cancelled or otherwise reduced to
zero and the Outstandings of all the Lenders have been permanently repaid
or prepaid, to the extent of and in respect of any cost, expense, loss,
liability or claim indemnifiable under any such clause and suffered or
incurred by any Beneficiary on or prior to the Discharge
Date
|
Increase
of Maximum Revolving Credit Line
|
2.7
|
BMUK
may, by not less than 30 days’ prior written notice to the Agent, request
that the Maximum Revolving Credit Line be increased from £60,000,000 to
£76,000,000. Upon receipt of such notice, the Agent shall notify the
Lenders and, upon the expiry of such period, the Maximum Revolving Credit
Line shall be increased to £76,000,000. The Lenders shall enter into such
documents and other agreements and carry out such actions as the Agent may
require to give effect to such
increase.
|
|
3.
|
ADDITIONAL
BORROWERS AND UNSECURED GUARANTORS
|
Request
or requirement
|
3.1
|
BMUK
may request that any Group Company shall become an Additional Borrower or,
as applicable, the Agent may require that any Group Company shall become
an Unsecured Guarantor by giving to the Agent or, as applicable, to BMUK
not less than 10 business days’ notice. For the avoidance of
doubt, any Additional Borrower shall, unless the Agent otherwise agrees,
automatically be required also to become a Charging Company pursuant to
Clause 4 (Additional
Charging Companies), without the need for the Agent to serve a
further notice in accordance with Clause 4 (Additional Charging
Companies).
|
Accession
|
3.2
|
The
Group Company in respect of which the request or, as the case may be,
requirement is made pursuant to Clause 3.1 (Request or Requirement)
shall become an Additional Borrower or, as applicable, an Unsecured
Guarantor:
|
|
3.2.1
|
if
the Lenders approve or, as applicable, require the addition of that Group
Company as an Additional Borrower or, as applicable, as an Unsecured
Guarantor;
|
|
3.2.2
|
upon
BMUK delivering to the Agent a duly completed and executed Accession
Notice;
|
|
3.2.3
|
in
the case of a request to appoint an Additional Borrower, if no Default has
occurred or is likely to occur as a result of that Group Company becoming
an Additional Borrower;
|
|
3.2.4
|
if
the Agent has received all of the documents and other evidence specified
in Schedule 9 (Documents
to accompany Accession Notice or Supplemental Deed) in relation to
that Group Company and each is in form and substance satisfactory to the
Agent.
|
For the
avoidance of doubt, no Accounts or Inventory of any Group Company which is to
become an Additional Borrower shall be considered as Eligible Accounts or
Eligible Inventory, unless the Agent has completed a field examination and such
other due diligence as the Agent may require and such Accounts and Inventory
satisfy the applicable conditions set forth in this Agreement.
Timing
|
3.3
|
The
Agent shall notify BMUK and the Lenders promptly upon being satisfied that
it has received all of the documents and other evidence specified in
Schedule 9 (Documents to
accompany Accession Notice or Supplemental Deed) in relation to the
relevant Group Company and that each is in form and substance satisfactory
to it, whereupon subject always to Clauses 3.2.1, 3.2.2 and, in the case
of a proposed Additional Borrower, Clause 3.2.3, the relevant Group
Company shall become an Additional Borrower or, as applicable, an
Unsecured Guarantor.
|
BMUK
as agent
|
3.4
|
Each
Borrower and each Unsecured Guarantor shall be deemed to appoint BMUK as
its agent for the purposes of the Finance Documents by its execution of an
Accession Notice. The Agent may rely on a document signed by
BMUK as if it had been signed by any other Borrower or any Unsecured
Guarantor. BMUK may give a good receipt for any sum payable by
any Finance Party to any other Borrower or an Unsecured
Guarantor. Any communication delivered to BMUK shall be deemed
to have been delivered to each of the Borrowers and each Unsecured
Guarantor. Any communication made by BMUK to the Agent or any
other Finance Party shall, to the extent permissible by law, be deemed to
have been made with the consent of each other Borrower and each Unsecured
Guarantor.
|
Repetition
of Representations
|
3.5
|
Delivery
of an Accession Notice constitutes confirmation by the relevant Additional
Borrower or, as applicable, Unsecured Guarantor that the representations
and warranties set out in Clause 14.1 (General Representations and
Warranties) which are required to be repeated pursuant to Clause
14.3 (Repetition)
are true and correct in all material respects in relation to it as at the
date of delivery as if made by reference to the facts and circumstances
then existing.
|
Invoice
Discounting Agreements
|
3.6
|
By
executing an Accession Notice an Additional Borrower shall accede to, and
be bound by, the IDF Guarantee as if it had been named in clause 7 (Guarantee) of the
Supplemental Agreement dated 15 December 2004 as a
Borrower.
|
|
4.
|
ADDITIONAL
CHARGING COMPANIES
|
Requirement
|
4.1
|
The
Agent (acting on the instructions of the Lenders) may require that any
Group Company becomes a Charging Company by giving to BMUK not less than
10 business days’ notice, provided that any Group Company which has
acceded to this Agreement as an Additional Borrower shall, unless the
Agent otherwise agrees, automatically be required to become a Charging
Company without the need for the Agent to serve a notice under this Clause
4 (Additional Charging
Companies).
|
Accession
|
4.2
|
The
Group Company in respect of which the requirement is made (or, in the case
of an acceding Additional Borrower, is deemed to have been made) pursuant
to Clause 4.1 (Requirement) shall
become a Charging Company:
|
|
4.2.1
|
(other
than in the case of a Group Company acceding to this Agreement as an
Additional Borrower (in which case, accession as a Charging Company shall,
unless the Agent otherwise agrees, be automatic)), if the Lenders require
the addition of that Group Company as a Charging
Company;
|
|
4.2.2
|
upon
BMUK delivering to the Agent a duly completed and executed Supplemental
Deed or such other security document as the Agent may require in form and
substance satisfactory to the
Agent;
|
|
4.2.3
|
if
no Default has occurred or is likely to occur as a result of that Group
Company becoming a Charging Company;
and
|
|
4.2.4
|
if
the Agent has received all of the following documents and other evidence
in relation to that Group Company specified in Schedule 9 (which shall be
required to be delivered within 60 days of receipt (or deemed receipt) of
notice under Clause 4.1 (Requirement)) and each
is in form and substance satisfactory to the
Agent.
|
Timing
|
4.3
|
The
Agent shall notify BMUK and the Lenders promptly upon being satisfied that
it has received all of the documents and other evidence specified in
Schedule 9 (Documents to
accompany Accession Notice or Supplemental Deed) in relation to the
relevant Group Company and that each is in form and substance satisfactory
to it, whereupon subject always to Clauses 4.2.1 to 4.2.3 (inclusive) the
relevant Group Company shall become a Charging
Company.
|
BMUK
as agent
|
4.4
|
Each
Charging Company shall be deemed to appoint BMUK as its agent for the
purposes of the Finance Documents by its execution of a Supplemental Deed
or other Security Document. The Agent may rely on a document
signed by BMUK as if it had been signed by each other Charging
Company. BMUK may give a good receipt for any sum payable by
any Beneficiary to each other Charging Company. Any
communication delivered to BMUK shall be deemed to have been delivered to
each of the Charging Companies. Any communication made by BMUK to the
Agent shall, to the extent permissible by law, be deemed to have been made
with the consent of each other Charging
Company.
|
Repetition
of Representations
|
4.5
|
Delivery
of a Supplemental Deed constitutes confirmation by the relevant Charging
Company that the representations and warranties set out in Clause 14.1
(General representations
and Warranties) which are required to be repeated pursuant to
Clause 14.3 (Repetition) are true
and correct in all material respects in relation to it as at the date of
delivery as if made by reference to the facts and circumstances then
existing.
|
|
5.
|
CONDITIONS
PRECEDENT
|
The
Lenders shall be under no obligation to make the Revolving Facility available
under this Agreement unless the Agent has received, or the Lenders are satisfied
that the Agent will receive at the same time as or immediately prior to the
making available of the Revolving Facility, in form and substance satisfactory
to it, all of the documents and evidence referred to in Schedule 2 (Conditions Precedent) (save
to the extent that the Agent may at any time waive such receipt).
|
6.
|
UTILISATION
OF THE REVOLVING FACILITY
|
General
Conditions of Utilisation
|
6.1
|
The
Lenders shall not be obliged to make the Revolving Facility available and
no Utilisation Notice in respect of the Revolving Facility shall become
effective unless the provisions with respect to Excess Availability
outlined at Clause 16.2.14 (Excess Availability)
are complied with;
|
and
either:
|
6.1.1
|
no
Default has occurred and is continuing or would occur if the Revolving
Facility was made available and the representations set out in Clauses
14.1 (General
Representations and Warranties) and 14.2 (Accounts and Inventory)
to be repeated on and as of the proposed date for the making available of
the Revolving Facility are true and correct in all material respects on
and as of such date; or
|
|
6.1.2
|
the
Lenders have agreed (notwithstanding any such matter) to make the
Revolving Facility available and no notice of termination of this
Agreement has been given by BMUK as referred to in Clause 29 (Term and
Termination).
|
Revolving
Loans
|
6.2
|
Subject
to the terms of this Agreement, a Revolving Loan will be made by the
Lenders to a Borrower on its request
if:
|
|
6.2.1
|
not
later than 11.00 a.m. on the business day immediately prior to the day
which is the proposed date for the making of such Revolving Loan (or three
business days in the case of any Revolving Loan to be denominated in a
Foreign Currency), or such lesser period as the Agent may agree prior to
the proposed date for the making of such Revolving Loan, the Agent has
received from the relevant Borrower a Utilisation Notice in respect of
such Revolving Loan;
|
|
6.2.2
|
the
proposed date for the making of such Revolving Loan is a business day
during the Commitment Period;
|
|
6.2.3
|
the
Original Sterling Amount of the proposed amount of such Revolving Loan is
a minimum amount of £3,000,000 and an integral multiple of £1,000,000 (or,
where the Revolving Loan is to be made pursuant to Clause 6.8.3 (Refunding of Swingline Loans
by the Lenders), an amount equal to the Original Sterling Amount of
the aggregate principal amount of the Swingline Loans then outstanding)
which is less than or equal to the lesser of the amount of the Available
Facility and the Available Revolving Facility Amount;
and
|
|
6.2.4
|
the
proposed Interest Period in respect of such Revolving Loan is a period of
one, two or three months (or such other period as the Agent may agree)
ending on or before the Termination
Date.
|
Swingline
Loans
|
6.3
|
Subject
to the terms of this Agreement, a Swingline Loan (which may be denominated
in sterling, dollars, euro or such other Foreign Currency as the Swingline
Lender may agree) will be made by the Swingline Lender to a Borrower on
its request if:
|
|
6.3.1
|
not
later than 11.00 a.m. on the day which is the proposed date for the making
of such Swingline Loan, the Agent has received from the relevant Borrower
a Utilisation Notice in respect of such Swingline
Loan;
|
|
6.3.2
|
the
proposed date for the making of such Swingline Loan is a business day
during the Commitment Period.
|
Letters
of Credit and Guarantees
|
6.4
|
Subject
to the terms of this Agreement, if the Agent agrees with a Borrower
(acting on the instructions of the Issuer), the Issuer shall, at that
Borrower’s request (contained in a Utilisation Notice) issue one or more
documentary letters of credit (each a “Letter of Credit”) or
Guarantees (each a “Guarantee”), in each
case denominated in sterling or any Foreign Currency as the Issuer may
agree, for that Borrower’s account. The Issuer will not issue
any Letter of Credit or Guarantee:
|
|
6.4.1
|
if
the Original Sterling Amount of the maximum face amount of the requested
Letter of Credit or of the maximum contingent liability under the
requested Guarantee, in each case plus all commissions, fees and charges
due from the relevant Borrower in connection with its issue, would cause
its Available Commitment or the Available Revolving Facility Amount to be
exceeded at such time;
|
|
6.4.2
|
if
the expiry date of the Letter of Credit or Guarantee would be later than
30 days prior to the Termination Date or a date falling more than 12
months from its date of issue;
|
|
6.4.3
|
if
the Original Sterling Amount of the maximum face amount of the requested
Letter of Credit or of the maximum contingent liability under the
requested Guarantee, when aggregated with the Original Sterling Amount of
the maximum face value of all Letters of Credit and of the maximum
contingent liability under all Guarantees, in each case then in issue,
would exceed £5,000,000,
|
unless
the Issuer has specifically agreed with that Borrower that it is prepared to do
so.
Utilisation
Notices
|
6.5
|
|
6.5.1
|
Subject
to the terms of this Agreement, each Utilisation Notice shall be
irrevocable and shall oblige the relevant Borrower to borrow the amount so
requested or, as the case may be, to give effect to the Utilisation so
requested on the date specified in such Utilisation Notice upon the terms
and subject to the conditions set out in this
Agreement.
|
|
6.5.2
|
The
first Utilisation Notice delivered hereunder shall include a request to
draw down as part of the relevant Revolving Loan an amount equal to the
amount of any fees then due and payable to the Arranger, the Agent and the
Lenders and to such other valuers and professional advisers as shall have
been agreed with the Agent and the Lenders as being payable therefrom and
an authorisation and direction to the Agent to appropriate for such
purpose the proceeds of so much of the relevant Revolving Loan as is
required to satisfy the payment in full of such
fees.
|
Termination
of Commitments
|
6.6
|
If
it has not already been cancelled or otherwise reduced to zero prior to
such time the Commitment of each of the Lenders shall be reduced to zero
at close of business in London on the last day of the Commitment
Period.
|
Special
Provisions relating to Revolving Loans
|
6.7
|
Agent’s
right to exceed limits
|
6.7.1
|
The
Agent, in its discretion, may elect to allow the limits of the Available
Revolving Facility Amount to be exceeded on one or more occasions,
provided that the Agent may never exceed the Maximum Revolving Credit
Line. If the Agent does exceed the limits of the Available
Revolving Facility Amount, it may not do so by an amount which exceeds
five (5) per cent. of the amount of the Maximum Revolving Credit Line and
if it does exceed the limits of the Available Revolving Facility Amount on
any occasion, the Agent shall not be deemed thereby to have changed such
limits or to be obliged to exceed such limits on any other
occasion.
|
Sharing
of Applicable Margin
|
6.7.2
|
On
the first business day of each month following a month in which a
Alternative Rate Revolving Loan shall have been outstanding and on the
first business day of the next Interest Period following an Interest
Period during which a LIBOR Revolving Loan shall have been outstanding,
the Agent shall pay to each of the Lenders an amount equal to each such
Lender's Participating Proportion of the interest which would have been
payable on any Alternative Rate Revolving Loan outstanding during that
month or, as the case may be, on any LIBOR Revolving Loan outstanding
during that Interest Period, if such interest had been calculated on the
basis of the Applicable Margin less 0.25% provided that the Agent shall
have actually received all interest due from the relevant Borrowers on
such Alternative Rate Revolving Loans or LIBOR Revolving Loans at the
rates applicable to them. Each Lender agrees that the Agent shall pay such
additional interest actually received from the Borrowers above that paid
to the Lenders in accordance with this Clause 6.7 (Special Provisions relating to
Revolving Loans) to Bank of America, National Association (in its
capacity as a Lender) for its own
account.
|
Special
Provisions relating to Swingline Loans
|
6.8
|
Notification
|
6.8.1
|
The
Swingline Lender shall notify the Agent and the Lenders at the end of each
week of the net amount of Swingline Loans then
outstanding.
|
Repayment
of Swingline Loans
|
6.8.2
|
The
principal amount of the Swingline Loans denominated in any currency shall
be repaid on a daily basis by the transfer of the full credit balance on
each Receivables Account to any loan account denominated in that currency
maintained by each Borrower with the Agent as contemplated in Clause 20.8
(Debit to Loan
Account) or otherwise on demand by the Swingline Lender, any such
credit balance denominated in any particular currency to be applied first
to the unpaid principal amount of Swingline Loans denominated in the same
currency and thereafter in or towards repayment of the unpaid principal
amount of any Swingline Loans denominated in any other currency, the
manner and extent of such application to be at the Agent’s
discretion.
|
Refunding
of Swingline Loans by the Lenders
|
6.8.3
|
The
Agent will not less than weekly and may, at any time in its sole and
absolute discretion or upon request of the Swingline Lender, on behalf of
the Borrowers (each of which hereby irrevocably directs the Agent to act
on its behalf in this respect), give notice to the Lenders (including the
Swingline Lender) requiring that they make a Alternative Rate Revolving
Loan to the relevant Borrower in an amount equal to the aggregate
principal amount of the Swingline Loans then outstanding together with all
interest accrued thereon but unpaid. Interest on any such
Alternative Rate Revolving Loan shall be calculated and payable in
accordance with the provisions of Clause
7.2.2.
|
|
6.8.4
|
Application of Alternative
Rate Revolving Loans: Regardless of whether the
conditions in this Agreement for the making of Revolving Loans are then
satisfied, each Lender shall make its share of any Alternative Rate
Revolving Loan referred to in Clause 6.8.3 (Refunding of Swingline Loans
by the Lenders) available to the Agent for the benefit of the
Swingline Lender on the date notice of the requirement for any such
Alternative Rate Revolving Loan is given to the
Lenders.
|
Special
Conditions for Issue of Letters of Credit and Guarantees
|
6.9
|
In
addition to being subject to the satisfaction of the applicable conditions
precedent referred to in Clause 5 (Conditions Precedent),
the obligation of the Issuer to issue any Letter of Credit or Guarantee is
subject to the following conditions having been satisfied in a manner
satisfactory to the Agent:
|
|
6.9.1
|
the
relevant Borrower shall have delivered to the Agent, at such times and in
such manner as the Agent may prescribe, an application in form and
substance satisfactory to the Agent for the issue of the Letter of Credit
or Guarantee and such other documents as may be required pursuant to the
terms thereof;
|
|
6.9.2
|
the
form and terms of the proposed Letter of Credit or Guarantee shall be
satisfactory to the Agent and the Issuer;
and
|
|
6.9.3
|
as
of the date of issue, no order of any court, arbitrator or public
authority shall purport by its terms to prohibit or restrain the Issuer or
banks generally from issuing letters of credit or guarantees of the type
and in the amount of the proposed Letter of Credit or Guarantee (as the
case may be), and no law, rule or regulation applicable to the Issuer or
banks generally and no request or directive (whether or not having the
force of law) from any central bank or public authority with jurisdiction
over the Issuer or banks generally shall prohibit, or request that the
Issuer refrain from, the issue of letters of credit or guarantees
generally or the issue of such Letter of Credit or
Guarantee.
|
General
Conditions for issue of Letters of Credit and Guarantees
|
6.10
|
Requests
for issue of Letters of Credit or Guarantees
|
6.10.1
|
A
Borrower shall give to the Agent four business days’ prior written notice
of that Borrower’s request for the issue of any Letter of Credit or
Guarantee. In the case of a Guarantee, such notice shall specify the
maximum contingent liability to be guaranteed, the beneficiary in whose
favour the Guarantee is to be issued, the effective date of issue of such
Guarantee (which shall be a business day), details of the obligation in
respect of which the contingent liability might arise and the date on
which such obligation is due to mature or expire. In the case
of a Letter of Credit, such notice shall specify the original face amount
and currency denomination of the Letter of Credit requested, the effective
date of issue of such Letter of Credit (which shall be a business day),
whether such Letter of Credit may be drawn in a single or partial draws,
the date on which such Letter of Credit is to expire and the beneficiary
of such Letter of Credit.
|
No
extensions or amendment:
|
6.10.2
|
The
Issuer shall not be obliged to extend or amend or cause to be extended or
amended any Letter of Credit or Guarantee it has
issued.
|
Events
of Default
|
6.10.3
|
The
Issuer need not, before issuing a Letter of Credit or Guarantee, make any
enquiry or otherwise concern itself as to whether any event has occurred
which, under the terms hereof, would relieve the Issuer from its
obligations to issue that Letter of Credit or Guarantee and accordingly
none of the Borrowers nor any of the Lenders shall have any right to
resist any claim under Clause 6.12 (Payments pursuant to Letters
of Credit or Guarantees) nor otherwise on the ground that any such
event had occurred before the issue of the Letter of Credit or Guarantee,
provided that, before issuing a Letter of Credit or Guarantee, the Issuer
shall inform each of the Lenders of any Event of Default of which it has
actual notice.
|
Compensation
for Letters of Credit and Guarantees
|
6.11
|
Each
Borrower agrees to pay to the Agent for the account of the Issuer with
respect to each Letter of Credit or Guarantee, the Letter of Credit and
Guarantee Fee and such other reasonable fees and other charges as are
charged by the Issuer for letters of credit or guarantees issued by it
including, without limitation its standard fees for issuing,
administering, amending, renewing, paying and cancelling letters of credit
and guarantees and all other fees associated with issuing or servicing
letters of credit, as and when assessed, all as specified in Clause 22.5
(Letter of Credit and
Guarantee Fee).
|
Payments
pursuant to Letters of Credit and Guarantees
|
6.12
|
Demands
under a Letter of Credit or Guarantee
|
6.12.1
|
If
a demand for payment is made under a Letter of Credit or Guarantee on the
Issuer, the Issuer shall promptly notify the Agent of such demand and pay
the sum demanded in accordance with the terms of the relevant Letter of
Credit or Guarantee, whereupon:
|
|
(a)
|
the Agent shall not later than
four hours after receipt of such demand, if such demand is made prior to
1.00 p.m. on any business day, or otherwise by 10.00 a.m. on the next
succeeding business day, notify each Lender of the amount of such demand
and such Lender’s proportion thereof which such Lender shall be obliged to
pay; and
|
|
(b)
|
each Lender shall on the date
of such notification make its share of the amount demanded available to
the Agent for the benefit of the Issuer in immediately available
funds.
|
If any
Lender is unable to make its share of such amount available on such date, it
shall nevertheless do so as soon as possible thereafter and in any event by no
later than two business days after the date notice of such requirement was given
to it by the Agent, together with interest thereon from the date of such notice
to the date of payment at the rate specified by the Agent as representing the
Issuer’s cost of funds.
Indemnity
|
6.12.2
|
Each
Borrower agrees to indemnify and hold harmless the Issuer in sterling or
sterling equivalent from and against all claims, demands, liabilities,
damages, losses, costs, charges and expenses (including reasonable legal
fees) which the Issuer may incur or sustain as a consequence of the issue
of any Letter of Credit or Guarantee or the performance of its obligations
thereunder (save where the same are caused by the Issuer’s gross
negligence or wilful misconduct). This is a continuing
indemnity, extends to the ultimate balance of each Borrower’s obligations
and liabilities under clause 6 and shall continue in force notwithstanding
any intermediate payment in whole or in part of those obligations or
liabilities.
|
Payment
of Letter of Credit or Guarantee obligations
|
6.12.3
|
Without
limiting or affecting any of the provisions of this Clause 6.12 (Payments pursuant to Letters
of Credit and Guarantees), each Borrower agrees to reimburse the
Agent and each Lender for any draw under any Letter of Credit or Guarantee
immediately upon demand, and to pay the Agent the amount of all other
obligations and other amounts payable to it under or in connection with
any Letter of Credit or Guarantee immediately when due, irrespective of
any claim, set-off, defence or other right which that Borrower may have at
any time against the Agent, the Lenders, the Issuer or any other
person.
|
Alternative
Rate Revolving Loans to satisfy reimbursement obligations
|
6.12.4
|
If
the Issuer honours a draw under any Letter of Credit or makes a payment
under a Guarantee and the relevant Borrower shall not have repaid such
amount to the Agent pursuant to Clause 6.12.3 (Payment of Letter of Credit or
Guarantee obligations), the honouring of such draw or the making of
such payment by the Issuer shall of itself cause there to arise an
Alternative Rate Revolving Loan by the Lenders of the amount of such draw
or payment which Alternative Rate Revolving Loan that Borrower shall be
obliged to repay immediately. In the event of non-payment of
such Alternative Rate Revolving Loan, interest thereon shall be calculated
by reference to successive periods of such duration as the Agent may
select at a rate per annum which is the sum of (i) two per cent (2%) (ii)
the Applicable Margin and (iii) the Alternative Rate for the month during
which such interest accrues and shall be paid by the relevant Borrower at
the end of the period by reference to which it is calculated or on such
other date as the Agent may specify by written notice to that
Borrower. If not paid on the due date, the interest shall be
added to and form part of the Alternative Rate Revolving Loan on which
interest shall accrue and be payable in accordance with the provisions of
this Clause 6.12.4 (Alternative Rate Revolving
Loans to satisfy reimbursement
obligations).
|
Letters
of Credit and Guarantees - Assumption of Risk
|
6.13
|
Authorisations
|
6.13.1
|
Each
of the Borrowers and the Lenders unconditionally and
irrevocably:
|
|
(a)
|
authorise and direct the Issuer to pay any request or demand for
payment under and in accordance with any Letter of Credit or Guarantee
issued by it without requiring proof of the relevant Borrower’s agreement
that any amount so demanded or paid is or was due and notwithstanding that
the relevant Borrower may dispute the validity of any such request, demand
or payment;
|
|
(b)
|
confirms
that the Issuer deals in documents only and shall not be concerned with
the legality of any claim under any Letter of Credit or Guarantee or any
other underlying transaction or any set-off, counterclaim or defence as
between the relevant Borrower and any beneficiary of any Letter of Credit
or Guarantee; and
|
|
(c)
|
agrees
that the Issuer need not have any regard to the sufficiency, accuracy or
genuineness of any such request or demand or any certificate or statement
in connection therewith or any incapacity of or limitation upon the powers
of any person signing or issuing any such request, demand, certificate or
statement which appears on its face to be in order and agrees that the
Issuer shall not be obliged to enquire as to any such matters and may
assume that any such request, demand, certificate or statement which
appears on its face to be in order is correct and properly
made.
|
Rights
of contribution and subrogation
|
6.13.2
|
Until
all amounts which are or may become payable by the Obligors under or in
connection with the Finance Documents have been irrevocably paid in full
and the Agent, the Issuer, the Swingline Lender and/or the Lenders are
under no liability hereunder, whether actual or contingent, no Borrower
shall, by virtue of any payment made by it under or in connection with or
referable to this Clause 6 (Utilisation of the Revolving
Facility) or otherwise be subrogated to any rights, security or
moneys held or received by the Agent, the Lenders and/or the Security
Trustee or be entitled at any time to exercise, claim or have the benefit
of any right of contribution or subrogation or similar right against any
of them and each Borrower irrevocably waives all rights of contribution or
similar rights against each of
them.
|
Waiver
of defences
|
6.13.3
|
Each
Borrower’s obligations under this Clause 6 (Utilisation of the Revolving
Facility) shall not be affected by any act, omission, matter or
thing which, but for this provision, might reduce, release or prejudice
any of its obligations hereunder in whole or in part, including without
limitation and whether or not known to
it:
|
|
(a)
|
any time or waiver granted to or composition with any beneficiary or
any other person;
|
|
(b)
|
any
taking, variation, compromise, exchange, renewal or release of, or refusal
or neglect to perfect, take up or enforce, any rights, remedies or
securities available to the Issuer or other person or arising under any
Letter of Credit or Guarantee; or
|
|
(c)
|
any
unenforceability, illegality or invalidity of any Letter of Credit or
Guarantee to the intent that each Borrower’s obligations under this clause
6 shall remain in full force and be construed as if there were no such
effect.
|
Supporting
Letter of Credit; Cash Collateral
|
6.14
|
If,
notwithstanding the provisions of this Clause 6 (Utilisation of the Revolving
Facility) and Clause 29 (Term and Termination)
any Letter of Credit or Guarantee is outstanding upon the termination of
this Agreement, then upon such termination each Borrower shall deposit
with the Security Trustee, at its discretion, with respect to each Letter
of Credit or Guarantee then outstanding, in its favour and at its request
either:
|
|
6.14.1
|
a
standby letter of credit (a “Supporting Letter of
Credit”) in form and substance satisfactory to the Agent and the
Security Trustee, issued by an issuer satisfactory to the Lenders in an
amount equal to the greatest amount for which such Letter of Credit may be
drawn (or, as the case may be, the maximum contingent liability under such
Letter of Credit or Guarantee) together with all fees, expenses and
charges in respect thereof (together the “maximum liability”) under which
Supporting Letter of Credit the Security Trustee is entitled to draw
amounts necessary to reimburse the Issuer (through the Agent) for payments
made by the Issuer under such Letter of Credit or Guarantee;
or
|
|
6.14.2
|
cash
in an amount equal to such maximum
liability.
|
Such
Supporting Letter of Credit or deposit of cash shall be held by the Security
Trustee as security for, and to provide for the payment of, the aggregate face
amount of all Letters of Credit or, as the case may be, the aggregate maximum
contingent liability under all Guarantees, remaining outstanding.
Agent
Loans
|
6.15
|
Authorisation
|
6.15.1
|
Subject
to the provisions of this Clause 6.15 (Agent Loans), the Agent
is hereby authorised by each Borrower and the Lenders, from time to time
in the Agent’s reasonable discretion, after the occurrence of a Default or
an Event of Default which is continuing unremedied or unwaived or at any
time that any of the other conditions to the making available of any Loans
hereunder have not been satisfied (and provided in any such case that it
is impractical to contact the Lenders), to make Alternative Rate Revolving
Loans (but in any event not to exceed the Available Facility) to a
Borrower on behalf of the Lenders which the Agent, in its reasonable
business judgement, deems necessary or desirable (i) to preserve or
protect any Collateral, (ii) to enhance the likelihood of, or maximise the
amount of, repayment of any of the Outstandings or (iii) to pay any other
amount chargeable to that Borrower pursuant to the terms of this
Agreement, including without limitation any costs, fees and expenses (any
such Alternative Rate Revolving Loan described in this Clause 6.15 (Agent Loans) being an
“Agent Loan”).
|
Revocation
of Authorisation
|
6.15.2
|
The
Lenders may at any time revoke the Agent’s authorisation contained in
Clause 6.15.1 (Authorisation) to make
Agent Loans, any such revocation to be in writing and to become effective
only upon the Agent’s actual receipt
thereof.
|
Repayment
|
6.15.3
|
Agent
Loans shall constitute Alternative Rate Revolving Loans under this
Agreement repayable by the relevant Borrower on demand and shall bear
interest at the rate per annum applicable to Alternative Rate Revolving
Loans plus 2%. The Agent shall notify each Lender in writing of
each Agent Loan that it makes.
|
Settlement
|
6.15.4
|
It
is agreed that each Lender shall participate in each such Alternative Rate
Revolving Loan constituted by an Agent Loan in an amount equal to its
Participating Proportion of the amount of such Alternative Rate Revolving
Loan. Notwithstanding such agreement, the Agent and the Lenders
agree (which agreement shall not be for the benefit of or enforceable by
the Borrowers) that in order to facilitate the administration of this
Agreement settlement of Agent Loans shall take place on a periodic basis
on such date or dates as the Agent may specify by written notice to the
Lenders. On receipt of any such notice, each Lender shall make
an amount equal to its Participating Proportion of the outstanding
principal amount of the Agent Loans in respect of which settlement is
requested available to the Agent in immediately available funds to such
account of the Agent as the Agent may designate, not later than 2.00 p.m.
on the proposed settlement date (which shall be not less than three
business days following the date of such notice). If any such amount is
not made available to the Agent by any Lender on such settlement date,
such Lender shall pay such amount to the Agent on demand together with
interest thereon from such settlement date to the date of actual payment
calculated at a rate per annum which is the sum of (i) two per cent (2%)
(ii) the Applicable Margin and (iii) the Alternative Rate for the month
during which such interest accrues.
|
Participation
and Notification
|
6.16
|
Participation
by Lenders
|
6.16.1
|
Each
Lender will participate through its Facility Office in each Utilisation
hereunder, comprising the making of the Revolving Loans, or in any amount
to be reimbursed to the Swingline Lender or the Issuer following any
non-payment by any Borrower of any amount due from it in respect of a
Swingline Loan or, as appropriate, a Letter of Credit or Guarantee, in the
proportion which its Commitment bears to the Total Commitments immediately
prior to the making available of that Utilisation or, as the case may be,
at the time of any such
non-payment.
|
Notification
to Lenders
|
6.16.2
|
The
Agent shall, promptly after receipt by it of a Utilisation Notice, notify
each Lender of the details of such notice and of the amount of that
Lender’s share of the Utilisation to be made available to the relevant
Borrower.
|
Aggregate
Exposure
|
6.17
|
The
Aggregate Exposure shall at no time exceed the Maximum Revolving Credit
Line and if at any time this limit is exceeded as a consequence of
currency fluctuations, the Borrowers shall provide cash cover in an amount
equal to such excess.
|
|
7.
|
INTEREST
AND INTEREST PERIODS
|
Dates
of Payment of Interest
|
7.1
|
Each
Revolving Loan shall bear interest on its unpaid principal amount from the
date made until paid in cash at a rate determined by reference to the
Alternative Rate for the month during which such interest accrues or to
LIBOR, as applicable, and the relevant Borrower shall pay accrued interest
on each such Revolving Loan (i) in the case of each Alternative Rate
Revolving Loan, on the first day of each month thereafter and (ii) in the
case of each LIBOR Revolving Loan, on the last day of each Interest Period
relating to such LIBOR Revolving
Loan.
|
If the
audited consolidated Financial Statements for the Group and related certificate
of BMUK for a Financial Year delivered in accordance with Clauses 15.2.1 (Financial Statements) and
15.3.3 (Certificate of
BMUK) show that a higher Applicable Margin should have applied during a
certain period, then BMEH shall (or shall ensure that the relevant Borrower
shall) promptly pay to the Agent any amounts necessary to put the Agent and the
Lenders in the position they would have been in had the appropriate rate of the
Applicable Margin applied during such period.
Rate
of Interest
|
7.2
|
|
7.2.1
|
The
rate of interest applicable to a LIBOR Revolving Loan from time to time
during an Interest Period relating to it shall be the rate per annum which
is the sum of (i) the Applicable Margin at such time, (ii) LIBOR relating
to such LIBOR Revolving Loan for such Interest Period and (iii) the
Mandatory Cost, if any, applicable to that LIBOR Revolving
Loan.
|
|
7.2.2
|
The
rate of interest applicable to a Swingline Loan and each Alternative Rate
Revolving Loan shall be a fluctuating rate per annum which is the sum of
the Alternative Rate for the month during which such interest accrues and
the Applicable Margin. Each change in the Alternative Rate for the month
during which such interest accrues and the Applicable Margin shall be
reflected in such interest rate as of the effective date of such
change.
|
Interest
Periods – LIBOR Revolving Loans
|
7.3
|
Save
as otherwise provided in this Agreement, the duration of each Interest
Period relating to a LIBOR Revolving Loan shall be the period selected by
the relevant Borrower in the Utilisation Notice relating to that LIBOR
Revolving Loan.
|
Maximum
Number of Interest Periods
|
7.4
|
A
Borrower may not select an Interest Period in respect of any LIBOR
Revolving Loan of such a duration that there shall at any time be more
than five Interest Periods in existence at the same
time.
|
Conversion
and Continuation of Revolving Loans
|
7.5
|
|
7.5.1
|
BMUK
(on behalf of the Borrowers) may, upon irrevocable written notice to the
Agent in accordance with Clause
7.5.2:
|
|
(a)
|
at
any time after the Outstandings in respect of Reference Revolving Rate
Loans are equal to or exceed an amount equal to an Original Sterling
Amount of £20,000,000 elect, as of any business day, in the case of
Alternative Rate Revolving Loans, to convert any such Alternative Rate
Revolving Loans (or any part thereof) in an amount or integral multiple of
not less than £1,000,000 into LIBOR Revolving
Loans;
|
|
(b)
|
elect, as of the last day of
the applicable Interest Period, to continue any LIBOR Revolving Loans
having Interest Periods expiring on such day (or any part thereof) in an
amount or integral multiple of not less than
£1,000,000.
|
|
(a)
|
at
any time after the Outstandings in respect of Reference Revolving Rate
Loans are equal to or exceed an amount equal to an Original Sterling
Amount of £20,000,000 elect, as of any business day, in the case of
Alternative Rate Revolving Loans, to convert any such Alternative Rate
Revolving Loans (or any part thereof) in an amount or integral multiple of
not less than £1,000,000 into LIBOR Revolving
Loans;
|
|
(b)
|
elect, as of the last day of
the applicable Interest Period, to continue any LIBOR Revolving Loans
having Interest Periods expiring on such day (or any part thereof) in an
amount or integral multiple of not less than
£1,000,000.
|
|
7.5.2
|
If
any Revolving Loans are to be converted into or continued as LIBOR
Revolving Loans, BMUK shall deliver a notice of conversion or continuation
(a “Notice of
Conversion/Continuation”) to be received by the Agent not later
than 11.00 a.m. at least one business day (in the case of any Revolving
Loan denominated in sterling) and at least three business days (in the
case of any Revolving Loan denominated in a Foreign Currency), in advance
of the proposed date of conversion or continuation
specifying:
|
|
(a)
|
the proposed date of such
conversion or continuation;
|
|
(b)
|
the aggregate amount of
Revolving Loans to be converted or
continued; and
|
|
(c)
|
the type of Revolving Loans
resulting from the proposed conversion or
continuation.
|
|
7.5.3
|
If
upon drawdown of any Revolving Loan or upon the expiry of any Interest
Period applicable to any LIBOR Revolving Loan, BMUK has failed to select a
new Interest Period to be applicable thereto or if any Default or Event of
Default then exists, BMUK shall be deemed to have elected to convert such
LIBOR Revolving Loan into an Alternative Rate Revolving Loan as of the
expiry date of such Interest
Period.
|
|
7.5.4
|
During
the existence of a Default or an Event of Default, BMUK may not elect to
have a Revolving Loan converted into or continued as a LIBOR Revolving
Loan.
|
Margin
Ratchet
|
7.6
|
|
7.6.1
|
On
the first business day of each Management Accounting Period, the Agent
shall calculate the average daily Available Revolving Facility Amount
during the previous Management Accounting Period. Subject to the
provisions of this Clause 7.6 (Margin Ratchet), if the
average daily Available Revolving Facility Amount during such previous
Management Accounting Period was within a range set out below then the
Applicable Margin for the next succeeding Management Accounting Period
will (subject to any adjustment pursuant to Clause 7.6.3 below) be the
percentage per annum set out in the table below, if such calculation is
made prior to the receipt by the Agent of a Limit Reduction Notice, in the
first column opposite that range and, if such calculation is made after
the receipt by the Agent of a Limit Reduction Notice, in the second column
opposite that range:
|
|
Average
daily Available Revolving Facility Amount
|
Applicable
Margin
(%)
per annum
|
|
|
Prior
to receipt
of
a Limit Reduction
Notice
|
After
receipt
of
a Limit Reduction
Notice
|
|
|
Less
than £10,000,000
|
3.00
|
2.50
|
|
Equal
to or greater than £10,000,000 but less
than
£15,000,000
|
2.75
|
2.25
|
|
Equal
to or greater than £15,000,000 but less
than
£20,000,000
|
2.50
|
2.00
|
|
Equal
to or greater than £20,000,000
|
2.25
|
1.75
|
|
7.6.2
|
Any
increase or decrease (as applicable) in the Applicable Margin as a result
of the operation of Clause 7.6.1 shall take effect on the first business
day of the Management Accounting Period following the Management
Accounting Period in respect of which the Agent shall have made the
calculation referred to in Clause
7.6.1.
|
|
7.6.3
|
At
the same time as it prepares the next set of Management Accounts that are
required to be delivered to the Agent in accordance with Clause 15.2.2
(Management
Accounts) following the end of a Financial Quarter ending on or
after (but not before) 31 December 2005 (each such Financial Quarter being
for the purposes of this Clause 7.6 (Margin Ratchet) the
“Previous Financial
Quarter”), BMUK shall calculate the actual EBITDA achieved from the
start of the Financial Year in which the Previous Financial Quarter fell
to the end of the Previous Financial Quarter (the “Actual YTD EBITDA”) and
shall compare it against the projected EBITDA for that period (as set out
in the projections delivered to the Agent prior to the Effective Date or,
in any Financial Year commencing after the Effective Date, the Latest
Projections delivered to the Agent in accordance with Clause 15.2.3 (Latest Projections) for
that Financial Year) (the “Projected YTD EBITDA”).
BMUK shall, at the same time as it delivers those Management Accounts to
the Agent, deliver a certificate to the Agent (signed by its finance
director) (an “Actual YTD
EBITDA Certificate”) certifying the Actual YTD EBITDA achieved to
the end of the Previous Financial Quarter and calculating (as a
percentage) the amount (if any) by which the Projected YTD EBITDA to the
end of the Previous Financial Quarter exceeds the Actual YTD EBITDA
achieved to the end of the Previous Financial Quarter (the “Variance”). Subject to
the provisions of this Clause 7.6 (Margin Ratchet) , if
the Actual YTD EBITDA Certificate delivered to the Agent demonstrates that
the Variance is within a range set out below then the Applicable Margin
(as determined from time to time in accordance with Clause 7.6.1) will be
increased by the amount set out below in the column opposite that
range:
|
|
Variance
|
Amount
by which the Applicable Margin determined in accordance with Clause 7.6.1
is increased (%)
|
|
Less
than 30%
|
Nil
|
|
Equal
to or greater than 30% but less than 50%
|
0.25
|
|
Equal
to or greater than 50%
|
0.50
|
For the
avoidance of doubt, if an Actual YTD EBITDA Certificate delivered to the Agent
demonstrates that the Actual YTD EBITDA achieved to the end of the Previous
Financial Quarter exceeds the Projected YTD EBITDA to the end of the Previous
Financial Quarter then the Applicable Margin (determined in accordance with
Clause 7.6.1) will be increased by zero per cent..
If BMUK
does not deliver an Actual YTD EBITDA Certificate in accordance with Clause
7.6.3 then the Applicable Margin (determined in accordance with Clause 7.6.1)
will be increased by 0.50 per cent. per annum.
|
7.6.4
|
Any
increase in the Applicable Margin (determined in accordance with Clause
7.6.1) as a result of the operation of Clause 7.6.3 shall take effect on
the first business day of the Management Accounting Period in which the
Actual YTD EBITDA Certificate is delivered or should have been
delivered.
|
|
7.6.5
|
For
the avoidance of doubt, the Applicable Margin shall never, prior to the
receipt by the Agent of a Limit Reduction Notice, be less than 2.25 per
cent. per annum and, after the receipt by the Agent of a Limit Reduction
Notice, be less than 1.75 per cent. per
annum.
|
|
7.6.6
|
If,
following receipt by the Agent of the audited consolidated Financial
Statements for the Group and related certificate of BMUK in accordance
with Clauses 15.2.1 (Financial Statements)
and 15.3.3 (Certificate
of BMUK), those Financial Statements and related certificate of
BMUK show that the Variance stated in any Actual YTD EBITDA Certificate
delivered in respect of any Financial Quarter falling in the Financial
Year to which those Financial Statements relate was greater than the
Variance stated in any Actual YTD EBITDA Certificate delivered in respect
of any Financial Quarter falling in the Financial Year to which those
Financial Statements relate, then the provisions of Clause 7.1 (Dates of Payment of
Interest) shall apply and the Applicable Margin shall be determined
using the table set out in Clause 7.6.3 above and each Variance in respect
of a period shall be calculated using audited consolidated Financial
Statements for the Group and related certificate of BMUK delivered for
that Financial Year.
|
|
7.6.7
|
At
any time while a Default has occurred and is continuing, the Applicable
Margin shall be, prior to the receipt by the Agent of a Limit Reduction
Notice, 3.00 per cent. per annum and, after the receipt by the Agent of a
Limit Reduction Notice, 2.50 per cent. per annum, notwithstanding any
previous reduction of the Applicable Margin made pursuant to this Clause
7.6 (Margin
Ratchet) and no reduction shall be instituted while a Default has
occurred and is continuing. For the avoidance of doubt, nothing in this
Clause 7.6.7 shall limit any default interest or other charges that may be
payable under this Agreement and if any default interest or other charges
are payable under this Agreement then they shall be paid in addition to
the Applicable Margin calculated under this Clause 7.6 (Margin
Ratchet).
|
Reduction
of the Parent Loan Limit
|
7.7
|
All
parties to this Agreement agree that BMUK may, at any time, elect to
reduce the Parent Loan Limit from $50,000,000 to $33,000,000 by a Limit
Reduction Notice provided that the loans and credit granted to the Parent
by BMUK, at the time that the Limit Reduction Notice is issued, does not
exceed $33,000,000. The parties to this Agreement hereby agree and
acknowledge that:
|
|
7.7.1
|
for
the purpose of any Limit Reduction Notice, BMUK is hereby appointed as
agent for each Borrower, each Guarantor, BMEP and
BMEBV;
|
|
7.7.2
|
any
Limit Reduction Notice will be irrevocable and binding on all parties;
and
|
|
7.7.3
|
the
reduction in the Parent Loan Limit effected by any Limit Reduction Notice
shall be effective from the date on which such Limit Reduction Notice is
received by the Agent and until the Termination
Date.
|
|
8.
|
MARKET
DISRUPTION
|
Circumstances
|
8.1
|
If
at or about 11.00 a.m. on the Quotation Date for an Interest Period in
respect of any LIBOR Revolving Loan the Agent (in consultation with the
Lenders) determines it is not possible by reason of circumstances
affecting the London Interbank Market generally (i) to determine LIBOR in
accordance with its definition, or (ii) for the Lenders to obtain
requisite matching deposits in the required currency in the London
Interbank Market at the relevant time to fund their respective shares
during such Interest Period, or (iii) for the Majority Lenders to obtain
such deposits for such period at a cost less than or equal to the rate
offered to the Agent in accordance with the definition of LIBOR, then the
Agent shall forthwith notify BMUK and the Lenders and notwithstanding the
provisions of Clause 7 (Interest and Interest
Periods), the Interest Period in respect of that LIBOR Revolving
Loan and the amount of interest payable in respect of that LIBOR Revolving
Loan during its Interest Period shall be determined in accordance with the
following provisions of this Clause 8 (Market
Disruption).
|
Applicable
Interest Rate
|
8.2
|
If
Clause 8.1 (Circumstances) applies
in relation to a LIBOR Revolving Loan the duration of the Interest Period
relating to that Loan shall be one month or, if less, such that it shall
end on the Termination Date and the rate of interest applicable to that
LIBOR Revolving Loan during its Interest Period shall be the rate per
annum which is the sum of (i) the Applicable Margin, (ii) the Mandatory
Cost, if any, and (iii) the rate determined by the Agent (and notified to
BMUK) to be that which expresses as a percentage rate per annum the
weighted average of the cost to each of the Lenders of funding its share
of such LIBOR Revolving Loan during such Interest Period from whatever
sources and in whatever manner each such Lender may reasonably
select.
|
Review
of Circumstances
|
8.3
|
So
long as any alternative basis for the calculation of interest as provided
in Clause 8.2 (Applicable Interest
Rate) is in force the Agent shall from time to time review whether
or not the circumstances referred to in Clause 8.1 (Circumstances) still
prevail with a view to returning to the normal provisions of this
Agreement relating to the determination of the rates of interest
applicable to any LIBOR Revolving
Loan.
|
Distribution
of Interest
|
8.4
|
Interest
on a LIBOR Revolving Loan during an Interest Period relating to it
calculated at the rates specified in Clause 8.1 (Circumstances) or 8.2
(Applicable Interest
Rate) shall be distributed by the Agent to the Lenders in
proportion to the amounts which represent the cost to each Lender of
funding its share of such LIBOR Revolving Loan during such Interest Period
provided that any such interest which is attributable to the Applicable
Margin shall be distributed by the Agent to the Lenders in proportion to
their respective shares in such LIBOR Revolving
Loan.
|
|
9.
|
REPAYMENT,
PREPAYMENT AND CANCELLATION
|
Repayment
of Revolving Loans
|
9.1
|
Each
Borrower shall repay each LIBOR Revolving Loan made to it, together with
accrued but unpaid interest thereon, on the last day of the Interest
Period applicable to that Loan. Each Borrower may repay each
Alternative Rate Revolving Loan and each Swingline Loan made to it,
together with accrued but unpaid interest thereon, at any
time. Each Borrower shall, in any event, repay the outstanding
principal balance of all Revolving Loans made to it, plus all accrued but
unpaid interest thereon, upon the termination of this Agreement for any
reason. In addition, and without limiting the generality of
each foregoing, each Borrower shall pay to the Agent, on demand, the
amount by which the Original Sterling Amount of the unpaid principal
balance of any Revolving Loans and any Swingline Loans when aggregated
with the Original Sterling Amount of the maximum face amount of all
Letters of Credit and the maximum contingent liability under all
Guarantees then in issue (together “contingency
outstandings”) at any time exceeds the Available Facility in
respect of the Revolving Facility or the Available Revolving Facility
Amount, the Available Facility and Available Revolving Facility Amount
being determined for this purpose as if the amount of the Revolving Loans,
Swingline Loans and contingency outstandings were zero. Subject
to the other terms of this Agreement and to availability, Revolving Loans
and Swingline Loans may be
reborrowed.
|
Cancellation
of Total Commitments
|
9.2
|
Any
Borrower may, by giving to the Agent not less than 30 business days’ prior
notice to that effect, permanently cancel the whole (but subject to Clause
29 (Term and
Termination)) or any part (being a minimum amount of £5,000,000 and
an integral multiple of £1,000,000) of the Total Commitments, provided
that both on the date of such notice and upon the effective date of
cancellation, the amount to be so cancelled does not exceed an amount
equal to the difference between the Maximum Revolving Credit Line and the
Aggregate Exposure and the Agent has not, pursuant to Clause 6.7 (Special Provisions relating to
Revolving Loans), permitted the limits of the Available Revolving
Facility Amount to have been exceeded. Any such cancellation shall reduce
the Commitment of each Lender pro rata. If a Borrower cancels any part
(but not the whole) of the Total Commitments, BMUK shall (or shall procure
that such other Borrower shall) pay to the Agent (for the rateable benefit
of the Lenders), on or prior to the date of such
cancellation:
|
|
9.2.1
|
0.75%
of the amount of the Total Commitments so cancelled, if such cancellation
is made on or prior to the first Anniversary
Date;
|
|
9.2.2
|
0.5%
of the amount of the Total Commitments so cancelled, if such cancellation
is made at any time after the first Anniversary Date but on or prior to
the second Anniversary Date; and
|
|
9.2.3
|
0.25%
of the amount of the Total Commitments so cancelled, if such cancellation
is made at any time after the second Anniversary Date but on or prior to
the date falling two months before the third Anniversary
Date.
|
Prepayment
and cancellation of Individual Lenders
|
9.3
|
If
a Borrower becomes obliged to pay an increased amount pursuant to Clauses
10.1 (Requirement to
Gross-up) or 11.1 (Increased Costs and Reduction
of Return) or any Lender claims indemnification from BMUK under
Clause 10.2 (Indemnity) or Clause
11.1 (Increased Costs
and Reduction of Return) and the Agent receives from BMUK at least
fifteen days’ prior notice of the intention of the Borrowers to prepay
such Lender’s Outstandings, such Lender shall, upon receipt by the Agent
of such notice, cease to be obliged to participate in any further Loans,
its Commitment shall be permanently cancelled and reduced to zero and each
Borrower shall on the last day of each of the then current Interest
Periods or earlier, if the Agent or such Lender so requires, prepay such
Lender’s portion of the Loan to which such Interest Period relates
together with any applicable break costs payable under Clause 19.2 (Break Costs) but
otherwise without premium or
penalty.
|
Notices
Irrevocable
|
9.4
|
Any
notice of cancellation or prepayment given by a Borrower (or BMUK on its
behalf) pursuant to Clause 9.2 (Cancellation of Total
Commitments) or Clause 9.3 (Prepayment and Cancellation of
Individual Lenders) shall be irrevocable, shall specify the date
upon which such prepayment is to be made and the amount of such prepayment
and shall oblige that Borrower to make such prepayment on such
date. A Borrower shall not be entitled to reborrow any amount
so prepaid.
|
Extension
of Termination Date
|
9.5
|
|
9.5.1
|
On
20 October 2010 BMUK may deliver a request to the Agent (which the Agent
shall promptly forward to the Lenders), requesting that the Lenders shall
extend the maturity of the Revolving Facility to 20 October
2012.
|
|
9.5.2
|
The
decision whether or not to extend the Termination Date shall be in the
absolute discretion of the Agent to determine (acting on the instructions
of all of the Lenders) and shall be based upon such factors as the Agent
may deem relevant (including, without limitation, the business condition
(financial or otherwise) of the Group at the relevant time and after
reviewing such forecasts, projections and financial and other information
regarding the Borrowers and the Group as the Agent may require. The
Borrowers acknowledge that the Agent and the Lenders shall not be under
any obligation to extend the Termination
Date.
|
|
9.5.3
|
If
extended pursuant to this Clause 9.5 (Extension of Termination
Date), references to the “Termination Date” in
this Agreement and the other Finance Documents shall be construed as a
reference to the Termination Date as from time to time extended. Any
extension of term and restatement of this Agreement does not constitute a
novation.
|
|
10.
|
TAXES
|
Requirement
to Gross-up
|
10.1
|
All
payments to be made by any of the Obligors to any person under this
Agreement shall be made free and clear of and without deduction for or on
account of tax unless such Obligor is required by law to make such a
payment subject to the deduction or withholding of tax, in which case the
sum payable by such Obligor in respect of which such deduction or
withholding is required to be made shall be increased to the extent
necessary to ensure that, after the making of such deduction or
withholding (including any deduction or withholding applicable to
additional sums payable under this clause), such person receives and
retains (free from any liability in respect of any such deduction or
withholding) a net sum equal to the sum which it would have received and
so retained had no such deduction or withholding been made or been
required to be made.
|
Indemnity
|
10.2
|
Without
prejudice to the provisions of Clause 10.1 (Requirement to
Gross-up), if any person or the Agent is required to make any
payment on account of tax (other than tax on its overall net income) on or
calculated by reference to the amount of any Loan made or to be made under
this Agreement or by reference to any Letter of Credit or Guarantee issued
under this Agreement and/or by reference to any sum received or receivable
under this Agreement by such person or the Agent on its behalf (including,
without limitation, any sum received or receivable under this Clause 10
(Taxes)) or any
liability in respect of any such payment is asserted, imposed, levied or
assessed against such person or the Agent on its behalf, the relevant
Obligor shall, upon demand of the Agent, promptly indemnify such person
against such payment or liability, together with any interest, penalties
and expenses payable or incurred in connection therewith provided that the
foregoing shall not apply to the extent that the payment or liability (a)
is compensated for by an increased payment under Clause 10.1 (Requirement to
Gross-up)or (b) would have been so compensated but was not so
compensated, solely because one of the exclusions in Clause 10.6 (Limitation on Requirement to
Gross-up) applied.
|
Notification
|
10.3
|
A
Lender intending to make a claim pursuant to Clause 10.2 (Indemnity) shall notify
the Agent of the event by reason of which it is entitled to do so
whereupon the Agent shall notify the relevant
Obligor.
|
Tax
Receipts
|
10.4
|
Without
prejudice to the provisions of Clause 10.1 (Requirement to
gross-up), if any Obligor makes any payment under this Agreement in
respect of which it is required by law to make any deduction or
withholding it shall pay the full amount to be deducted or withheld to the
relevant taxation or other authority within the time allowed for such
payment under applicable law and shall deliver to the Agent (no later than
one week after the end of the time allowed for such payment under
applicable law) an original receipt or other appropriate evidence issued
by such authority evidencing the payment to such authority of all amounts
so required to be deducted or withheld from such
payment.
|
Tax
Credits
|
10.5
|
If
any Obligor makes an increased payment under Clause 10.1 (Requirement to
Gross-up) for the account of any person and such person in its sole
opinion and based on its own interpretation of any relevant laws or
regulations (but acting in good faith) determines that it has received or
been granted a credit against or relief or remission for or in respect of
any tax paid or payable by it in respect of or calculated by reference to
the deduction or withholding giving rise to such payment, such person
shall, to the extent that it determines that it can do so without
prejudice to the retention of the amount of such credit, relief, remission
or payment and, to the extent it is reasonably identifiable and
quantifiable, as soon as practicable pay to such Obligor an amount equal
to such part or all of such credit, relief, remission or repayment as can
be made available to such Obligor in such a way as to leave such person
(after such payment) in no better or worse position than it would have
been in if such Obligor had not been required to make such deduction or
withholding. Nothing contained in this Clause 10.5 (Tax Credits) shall
interfere with the right of a person to arrange its tax affairs in
whatever manner it thinks fit nor oblige any person to disclose any
information relation to its tax affairs or any computation in respect
thereof.
|
Limitation
on Requirement to Gross-up
|
10.6
|
|
10.6.1
|
If
any Lender ceases to be a Qualifying Lender, no Obligor shall be liable to
pay to such Lender under Clause 10.1 (Requirement to
Gross-up) any amount in excess of the amount it would have been
obliged to pay if such Lender had not ceased to be a Qualifying Lender
provided that this Clause 10.6 (Limitation on Requirement to
Gross-up) shall not apply and each Obligor shall continue to be
obliged to comply with its obligations under Clause 10 (Requirement to
Gross-up) if and to the extent that after the date of this
Agreement there shall have been any change in, or in the interpretation,
administration or application of, any relevant law or double taxation
treaty or any published practice or concession of any relevant taxing
authority and as a result of such change (i) such Lender ceases to be a
Qualifying Lender or (ii) such Obligor would be required to make a
deduction or withholding on account of tax irrespective of whether the
recipient of the relevant payment was or was not a Qualifying
Lender.
|
|
10.6.2
|
No
Obligor shall be liable to make a payment to a Lender under Clause 10.1
(Requirement to
Gross-up) if on the date on which the payment falls due the
relevant Obligor is able to show that the payment could have been made to
such Lender without any deduction or withholding had such Lender complied
with its obligations under Clause 10.7 (Double Taxation
Relief).
|
Double
Taxation Relief
|
10.7
|
If,
and to the extent that, the effect of Clause 10.1 (Requirement to
Gross-up) or 10.2 (Indemnity) can be
mitigated by virtue of the provisions of any applicable double tax treaty
entered into by the United Kingdom (whether by a claim to repayment of any
taxes referred to in Clause 10.1 (Requirement to
gross-up) or 10.2 (Indemnity) or
otherwise) each Lender agrees to co-operate (to the extent reasonably
required) with affected Obligor(s) with a view to submitting any forms
required for the purpose of ensuring the application of such double tax
treaty so far as relevant, provided that no Lender shall be required
pursuant to this Clause 10.7 (Double Taxation Relief)
to complete or co-operate in completing any form which is not
substantially similar to any form in use at the date of this Agreement for
the purpose of claiming exemption or relief from or repayment of taxes
envisaged hereunder pursuant to a double taxation treaty between the
United Kingdom and such Lender’s jurisdiction of residence and which
requires the Lender to undertake obligations which, in its reasonable
opinion, are more onerous than those imposed upon it as at the date of
this Agreement.
|
|
11.
|
INCREASED
COSTS
|
Increased
Costs and Reduction of Return
|
11.1
|
If
the Agent or, as the case may be, any Lender, in its sole discretion
determines that, as a result of (i) the introduction of, or any change in
any law or in any treaty, directive or regulation (whether or not having
the force of law but if not having the force of law, only if such treaty,
directive or regulation is generally applicable to banks and of the type
with which the relevant Lender is accustomed to comply) or the
interpretation or application thereof, in each case after the date hereof,
or (ii) compliance with any request from or requirement (whether or not
having the force of law but if not having the force of law, only if such
request or requirement is generally applicable to banks and of the type
with which the relevant Lender is accustomed to comply) of any central
bank or other fiscal, monetary or other authority made or imposed after
the date hereof:
|
|
11.1.1
|
it
incurs a cost in assuming or maintaining all or any part of any Commitment
under this Agreement and/or in making, maintaining or funding all or any
part of its Outstandings or any unpaid sum and/or assuming or maintaining
a contingent liability under or pursuant to this Agreement (whether under
any Letter of Credit or Guarantee or otherwise), or that cost is
increased; or
|
|
11.1.2
|
any
sum received or receivable by it under this Agreement or the effective
return to it under this Agreement is reduced;
or
|
|
11.1.3
|
it
suffers a reduction in the rate of return on its overall capital below
that which might reasonably have been anticipated at the date of this
Agreement and which it would have been able to achieve but for having
entered into and/or performing its obligations and/or assuming or
maintaining a commitment or contingent liability under or pursuant to this
Agreement; or
|
|
11.1.4
|
it
makes any payment or forgoes any interest or other return on or calculated
by reference to the amount of any sum received or receivable by it under
or pursuant to this Agreement; or
|
|
11.1.5
|
it
incurs a cost or increased cost, or suffers a reduction in any amount
payable to it or in the effective return on its capital, or forgoes any
interest or any other return as a result of the introduction of,
changeover to or operation of the euro in the United
Kingdom,
|
and in
any such case, the same is attributable to its liabilities or obligations under
this Agreement, then the person concerned shall notify the Agent of the relevant
event (setting out in reasonable detail the basis on which its claim has been
computed) promptly upon its becoming aware of the same, whereupon the Agent
shall notify BMUK and, upon demand of the Agent, BMUK shall pay, or shall
procure that there is paid, on demand to the Agent for the account of the person
concerned an amount sufficient to indemnify that person against the
relevant cost, increased cost, reduction, reduction in the rate of return,
payment or forgone interest or other return or such proportion thereof as is, in
the opinion of such person, attributable to its obligations under or pursuant to
this Agreement.
Capital
Adequacy
|
11.2
|
If
the Agent, or as the case may be, any Lender, in its sole discretion
determines that (i) the introduction of, or any change in, any capital
adequacy regulation or in the interpretation or application thereof, in
each case after the date hereof, or (ii) compliance by such person or any
corporation controlling it with any capital adequacy regulation, affects
or would affect the amount of capital, reserves or special deposits
required or expected to be maintained by such person or any corporation
controlling it and (taking into consideration such person’s or such
corporation’s policies with respect to capital adequacy) determines that
the amount of such capital, reserves or special deposits is increased as a
consequence of its loans, contingent liabilities or obligations under this
Agreement then, upon demand of the Agent (having been so notified by such
person) to BMUK, BMUK shall pay, or shall procure that there is
paid, to the Agent for the account of the person concerned, from time to
time as specified by the Agent, additional amounts sufficient to
compensate such person for such
increase.
|
Exceptions
|
11.3
|
Clauses
11.1 (Increased Costs
and Reduction of Return) and 11.2 (Capital Adequacy) do
not apply to any cost, increased cost, reduction, reduction in the rate of
return, payment or forgone interest or other return compensated for by (a)
payment of the Mandatory Cost, (b) by the operation of Clause 10 (Taxes), (c) by a change
in the rate of tax on the overall net income of the Agent or any Lender or
(d) which is attributable to the wilful breach by the relevant Lender or
any of its Affiliates of any law or
regulation.
|
|
12.
|
ILLEGALITY
|
Consequences
of Illegality
|
12.1
|
If
at any time it is unlawful, or contrary to any directive or request of any
applicable central bank or other fiscal, monetary or other authority, or
impossible for a Lender to make, fund or allow to remain outstanding any
Loan made or to be made under this Agreement or to assume or remain under
any obligations hereunder in relation to or under any Letter of Credit or
Guarantee, then the Agent shall, promptly after becoming aware of the
same, deliver to BMUK a certificate to that effect
and:
|
|
12.1.1
|
such
Lender shall not thereafter be obliged to make or participate in any Loan
under this Agreement or (in the case of the Issuer) issue any Letter of
Credit or Guarantee and its Commitment shall immediately be cancelled and
reduced to zero; and
|
|
12.1.2
|
if
the Agent on behalf of such Lender so requires, each Borrower shall on the
last day of the Interest Period for each such Loan occurring after the
Agent has notified BMUK or (if earlier) on such date as the Agent shall
have specified (being no earlier than the last day upon which the Lender
is legally able to permit such Loans to remain outstanding) repay such
Lender’s Outstandings together with accrued interest thereon (any such
repayment to be without premium or penalty or the payment of any amount to
be calculated in accordance with Clause 29.2.3 ) and all other amounts
owing to such Lender under this Agreement, and, with respect to any Letter
of Credit or Guarantee then outstanding, deposit with the Security Trustee
for the benefit of the Issuer a Supporting Letter of Credit or cash, in
either such case in the same manner as contemplated in Clause 6.14 (Supporting Letters of Credit;
Cash Collateral).
|
Mitigation
of Adverse Circumstances
|
12.2
|
If,
in respect of any Lender, circumstances arise which would, or would upon
the giving of notice, result in additional amounts becoming payable under
Clause 10 (Taxes)
or Clause 11.1 (Increased Costs and Reduction
of Return) or result in a cancellation of its Commitment pursuant
to Clause 12.1.1 (Consequences of
Illegality) then, without in any way limiting, reducing or
otherwise qualifying the obligations of any Borrower hereunder such Lender
will, at the request of BMUK, consider means of mitigating the effects of
such circumstances provided that such Lender shall be under no obligation
to take any such action if to do so would or might in its opinion have an
adverse effect on its business, operations or financial
condition.
|
|
13.
|
GUARANTEE
|
Guarantee
|
13.1
|
Each
Unsecured Guarantor, jointly and severally, unconditionally and
irrevocably guarantees to the Beneficiaries the due and punctual payment,
performance and discharge by the Obligors of all the moneys, obligations
and liabilities (whether present or future, actual or contingent) on the
part of the Obligors to be paid, performed or discharged, whether directly
or indirectly, under or pursuant to the terms of this Agreement and/or in
connection with the Facility and/or otherwise under the Finance Documents
(together in this Clause 13 (Guarantee) the “guaranteed
obligations”). If and whenever any Obligor shall default
in the payment, discharge or performance of any of the guaranteed
obligations, each Unsecured Guarantor shall, upon written demand by the
Agent, promptly pay, perform or discharge the guaranteed obligations in
respect of which such default has been
made.
|
Indemnity
|
13.2
|
Each
Unsecured Guarantor agrees to indemnify and hold harmless the
Beneficiaries from time to time on demand for and against any loss
incurred by any of them as a result of any of the guaranteed obligations
being or becoming void, voidable or unenforceable for any reason
whatsoever, whether known to such person or persons or not. The
amount of such loss shall be the amount which the person or persons
suffering it would otherwise have been entitled to recover from the
Obligors.
|
Continuing
Security
|
13.3
|
The
obligations of each Unsecured Guarantor under this Agreement are
continuing obligations and shall remain in force until all of the
guaranteed obligations have been satisfied in full. The
obligations of each Unsecured Guarantor under this Agreement shall not be
(or be construed so as to be) discharged by any intermediate discharge or
payment of or on account of any of the guaranteed obligations or any
settlement of account or any other matter (other than the discharge in
full of the guaranteed
obligations).
|
Protective
Provisions
|
13.4
|
Neither
the obligations of each Unsecured Guarantor nor the rights and remedies of
the Beneficiaries under this Agreement, any other Finance Document or
otherwise conferred by law shall be discharged, prejudiced or impaired by
reason of:
|
|
13.4.1
|
any
variation of any of the guaranteed obligations or of the terms of
conditions of this Agreement, any other Finance Document or of any
encumbrance, guarantee or other assurance held or to be held as security
for the payment, performance or discharge of the guaranteed obligations
(any such encumbrance, guarantee or other assurance together referred to
in this Clause 13 (Guarantee) as “related
security”);
|
|
13.4.2
|
any
failure (whether intentional or not) to take, perfect or realise (whether
in full or in part) any related security now or in the future agreed to be
taken in respect of any of the guaranteed
obligations;
|
|
13.4.3
|
any
incapacity or change in the constitution of any party to this Agreement,
any other Finance Document or to any related
security;
|
|
13.4.4
|
any
of the guaranteed obligations or any obligation of any person under any
related security being or becoming invalid, illegal, void or unenforceable
for any reason;
|
|
13.4.5
|
any
time or other indulgence given or agreed to be given to, or any
composition or other arrangement made with or accepted from, any Obligor
in respect of any of the guaranteed obligations or any other person in
respect of any of its obligations under any related
security;
|
|
13.4.6
|
any
waiver or release of any of the guaranteed obligations or of any
obligation of any person under any related security or any failure to
realise, in full or in part, the value of, or any discharge or exchange of
any related security;
|
|
13.4.7
|
any
Obligor or any other person party to this Agreement, any other Finance
Document or any related security being wound up, going into administration
or liquidation or making any composition or arrangement with its creditors
(whether or not sanctioned by the court and whether or not the Agent has
agreed to such compromise or arrangement) and so that where, by virtue of
any compromise or arrangement, any of the guaranteed obligations are
transferred to any other person, the guarantee and indemnity of each
Unsecured Guarantor contained in this Agreement shall take effect as if
the expression “Obligor” included such other person;
or
|
|
13.4.8
|
any
other act, event or omission which, but for this provision, would or might
operate to offer any legal or equitable defence for or impair or discharge
any of the guaranteed obligations or any obligation of any person under
any related security or prejudicially affect the rights or remedies of the
Beneficiaries or any of them under this Agreement, any other Finance
Document or otherwise conferred by
law.
|
Independent
Obligations
|
13.5
|
The
obligations of each Unsecured Guarantor under this Agreement are
additional to, and not in substitution for, any related security and the
obligations assumed by each Unsecured Guarantor under this Agreement may
be enforced without first having recourse to any related security and
without making or filing any claim or proof in a winding-up or dissolution
of any Obligor or any other person party to this Agreement or any related
security or first taking any steps or proceedings against any Obligor or
any such person.
|
Non-Competition
|
13.6
|
Until
all of the guaranteed obligations have been satisfied in full, no
Unsecured Guarantor shall:
|
|
13.6.1
|
exercise
any right of subrogation, indemnity, set-off or counterclaim against any
Obligor, any other Unsecured Guarantor or any person party to any related
security;
|
|
13.6.2
|
claim
payment of any other moneys for the time being due to it by any Obligor,
any other Unsecured Guarantor or any person party to any related security
by reason of the performance by it of its obligations under this Agreement
or on any account whatsoever or exercise any other right or remedy or
enforce any encumbrance, guarantee or other assurance which it has in
respect thereof;
|
|
13.6.3
|
claim
any contribution from any other Unsecured Guarantor or any person party to
any related security;
|
|
13.6.4
|
negotiate,
assign, charge or otherwise dispose of any moneys, obligations or
liabilities now or at any future time due or owing to it by any Obligor or
any other Unsecured Guarantor or any person party to any related security
or any encumbrance, guarantee or other assurance in respect thereof;
or
|
|
13.6.5
|
claim
or prove in a winding up or dissolution of any Obligor or any other
Unsecured Guarantor in competition with the Beneficiaries or any of them;
and
|
|
13.6.6
|
if
any Unsecured Guarantor receives any sums in contravention of this Clause
13.6 (Non-Competition), it
shall hold them on trust to be applied promptly in or towards the
satisfaction of its obligations under this
Agreement.
|
Warranty
|
13.7
|
Each
Unsecured Guarantor warrants that it has not taken, and agrees that
(without the prior written consent of the Agent acting on the instructions
of the Majority Lenders) it will not take, from any Obligor, any other
Unsecured Guarantor or any person party to any related security any
encumbrance, guarantee or other assurance in respect of or in connection
with its obligations under this Agreement. If any Unsecured
Guarantor takes any such encumbrance, guarantee or other assurance in
contravention of this Clause 13.7 (Warranty), it shall
hold the same on trust for the Beneficiaries until such time as all of the
guaranteed obligations have been satisfied in full and shall on request
promptly deposit the same with and/or charge the same to the Agent for and
on behalf of itself and such persons in such manner as the Agent may
require as security for the due performance and discharge by the relevant
Unsecured Guarantor of the guaranteed
obligations
|
Suspense
Account
|
13.8
|
If
any Obligor or any of the Unsecured Guarantors is wound up, goes into
liquidation or makes any composition or arrangement with its creditors,
neither the existence of the guarantee of the relevant Unsecured Guarantor
contained in this Agreement nor any moneys received or recovered by the
Beneficiaries or any of them under to pursuant to this Agreement shall
impair the right of such persons to prove in such winding-up, liquidation,
composition, or arrangement for the total amount due from the Obligor or
the relevant Unsecured Guarantor. The Agent may at any time and
from time to time place and, for so long as it thinks fit, keep any moneys
received or recovered under this Agreement in a separate or suspense
account, in such name as it thinks fit, without any intermediate
obligation on its part to apply the same in or towards discharge of any
part of such total amount, provided that if the moneys are at any time
sufficient to discharge the guaranteed obligations in full, they shall
promptly be so applied.
|
Conditional
Discharge
|
13.9
|
Any
settlement or discharge between any of the Unsecured Guarantors and the
Arranger, the Agent, the Lenders or any of them shall be conditional upon
no security or payment to the Arranger, the Agent and the Lenders or any
of them by any Obligor or the relevant Unsecured Guarantor or any other
person being avoided or set aside or ordered to be refunded or reduced by
or pursuant to any applicable law or regulation and, if such condition is
not satisfied, the Arranger, the Agent and the Lenders shall each be
entitled to recover from the relevant Unsecured Guarantor on demand the
value of any such security or the amount of any such payment as if such
settlement or discharge had not
occurred.
|
Guarantor
Intent
|
13.10
|
Without
prejudice to the generality of Clause 13.4 (Protective Provisions),
each Unsecured Guarantor expressly confirms that it intends that its
obligations under this Agreement shall extend from time to time to any
(however fundamental) variation, increase, extension or addition of or to
any of the Finance Documents and/or any facility or amount made available
under any of the Finance Documents for the purposes of or in connection
with any of the following: the Group’s business, acquisitions of any
nature; increasing working capital; enabling investor distributions to be
made; carrying out restructurings; refinancing existing facilities;
refinancing any other indebtedness; making facilities available to new
borrowers; any other variation or extension of the purposes for which any
such facility or amount might be made available from time to time; and any
fees, costs and/or expenses associated with any of the
foregoing.
|
|
14.
|
REPRESENTATIONS
AND WARRANTIES
|
General
Representations and Warranties
|
14.1
|
Each
Obligor represents and warrants (in respect of itself and each other
Obligor) to and for the benefit of each other party to this Agreement
that, except as disclosed to and accepted by the Agent in
writing:
|
Status
|
14.1.1
|
(other
than in the case of BMEP) it is a limited liability company duly
incorporated or a corporation duly organised and validly existing under
the laws of its jurisdiction of incorporation and BMEP is a partnership
properly established and validly existing under the laws of the
Netherlands, in each case having the power and authority to own its assets
and to conduct the business and operations which it conducts or proposes
to conduct;
|
Powers
and authority
|
14.1.2
|
it
has full power and authority to enter into and perform each of the
Relevant Agreements to which it is or will be a party and any other
document to be entered into by it pursuant thereto and has taken all
necessary corporate or other action to authorise the execution, delivery
and performance of each such Relevant Agreement and each such other
document;
|
Authorisations
|
14.1.3
|
save
for any necessary registrations which will be made within the applicable
registration period, all actions, conditions and things required by all
applicable laws and regulations to be taken, fulfilled, obtained or done
in order (i) to enable it lawfully to enter into, exercise its rights
under and perform and comply with its obligations under each of the
Relevant Agreements to which it is or will be a party and any other
document to be entered into pursuant thereto (ii) to ensure that those
obligations are valid, legally binding and enforceable in accordance with
their respective terms and (iii) to make each of the Relevant Agreements
and all such other documents admissible in evidence in England and Wales
and, if different, its jurisdiction of incorporation have been taken,
fulfilled, obtained or done;
|
Non-violation
|
14.1.4
|
the
execution by it of and the exercise by it of its rights and performance of
or compliance with its obligations under each of the Relevant Agreements
to which it is or will be a party do not and will not violate (i) any law
or regulation to which it or any of its assets is subject or (ii), to an
extent or in a manner which has or could have a material adverse effect on
it, any agreement to which it is a party or which is binding on it or its
assets or conflict with its constitutional documents and in particular
will not cause any limit on its borrowing or other powers or the exercise
of such powers by its board of directors to be
exceeded;
|
Obligations
binding
|
14.1.5
|
subject
to the Reservations, its obligations under each of the Relevant Agreements
are legal, valid and binding and enforceable in accordance with their
respective terms;
|
Litigation
|
14.1.6
|
save
as disclosed in writing to and agreed by the Agent prior to the date of
this Agreement, it is not involved or engaged in any litigation,
arbitration or administrative proceedings (whether as plaintiff or
defendant) nor, to the best of its knowledge is any such litigation,
arbitration or administrative proceedings threatened, nor are there any
circumstances likely to give rise to any such litigation, arbitration or
proceedings which in any such case may have a material adverse effect on
it, any other Obligor or on the Group (taken as a
whole);
|
No
default
|
14.1.7
|
it
is not in breach of or default under any agreement or arrangement
(including, without limitation, under any Relevant Agreement) or any
statutory or legal requirement to an extent or in a manner which has or
could have a material adverse effect on it or on any other Obligor and no
Event of Default has occurred and is
continuing;
|
Existing
encumbrances
|
14.1.8
|
no
encumbrance exists over its present or future assets except for Permitted
Encumbrances;
|
Future
encumbrances
|
14.1.9
|
the
execution by it of each of the Relevant Agreements to which it is or will
be a party and the exercise by it of its rights and performance of or
compliance with its obligations thereunder will not result in the
existence of or oblige it to create any encumbrance over all or any of its
present or future assets except for Permitted
Encumbrances;
|
Financial
Statements
|
14.1.10
|
|
|
(a)
|
its
audited consolidated Financial Statements were prepared in accordance with
Applicable GAAP and give a true and fair view of the financial condition
of the Group at the date as of which they were prepared and the results of
the Group’s business and operations during the Financial Year then ended
and (in the case of its Financial Statements) disclose or reserve against
all liabilities (contingent or otherwise) of each Group Company as at that
date and all unrealised or anticipated losses from any commitment entered
into by each Group Company and which existed on that date;
|
|
(b)
|
the
Latest Projections represent its best estimate of the Group’s future
financial performance for the periods referred to in them and have been
prepared on the basis of the stated assumptions, which it believes are
fair and reasonable in the light of current and reasonably foreseeable
business conditions;
|
Capitalisation
|
14.1.11
|
the
Adjusted Tangible Net Worth is not less than £26,936,000, BMEBV’s
authorised share capital consists of EUR90,000 of which 200 shares of
EUR100 are validly issued and fully paid and are owned beneficially by
BMEP and BMUK’s authorised share capital consists of 5,000,000 ordinary
shares of £1 per share and 5,000,000 preference shares of £1 per share, of
which 4,000,500 ordinary shares and 1,225,963 preference shares are
validly issued and fully paid and are beneficially owned by BMEBV, in the
case of the ordinary shares, and the Parent, in the case of the preference
shares;
|
Indebtedness
|
14.1.12
|
no
Group Company has any indebtedness except for Permitted
Indebtedness;
|
Distributions
|
14.1.13
|
since
1 January 2002 no Distribution has been declared, paid, or made upon or in
respect of any shares or other securities of any Group Company other than
in accordance with the provisions of Clause 16.3.3 (Distributions and changes in
capital structure);
|
Title
to assets
|
14.1.14
|
except
for assets which are leased, it is the beneficial owner free from all
encumbrances (other than Permitted Encumbrances) of all its other assets
including, without limitation, the assets reflected on the most recent
Financial Statements delivered to the Agent, except as disposed of since
the date thereof in the ordinary course of
trading;
|
Labour
disputes
|
14.1.15
|
there
is no pending or, to the best of its knowledge, threatened strike, work
stoppage, material unfair labour practice claim, or other material labour
dispute against or affecting its or its
employees;
|
Environmental
Laws
|
14.1.16
|
to
the best of its knowledge and belief (having made all due and reasonable
enquiry) it has not breached any Environmental Law and no condition exists
or act or event has occurred which will or might reasonably be expected to
give rise to any breach of, or any liability of any kind under, any
Environmental Law;
|
Environmental
Authorisations
|
14.1.17
|
to
the best of its knowledge and belief (having made all due and reasonable
enquiry) it is in possession of all Environmental Authorisations required
for the conduct of its business or operations (or any part thereof) and it
has not breached any of the terms or conditions of any such Environmental
Authorisation;
|
Notices
of environmental breaches
|
14.1.18
|
(i)
it has not received any summons, complaint, order or similar written
notice that it is not in compliance with, or any public authority is
investigating its compliance with, any Environmental Law or that it is or
may be liable to any other person as a result of a potential or actual
Discharge of a Hazardous Substance and (ii) none of its present or past
operations is the subject of any investigation by any public authority
evaluating whether any remedial action is needed to respond to a potential
or actual Discharge of a Hazardous
Substance;
|
No
deposit of Hazardous Substances
|
14.1.19
|
to
the best of its knowledge and belief (having made all due and reasonable
enquiry) no Hazardous Substance has at any time been used, disposed of,
generated, stored, transported, dumped, released, deposited, buried,
discharged or emitted at, on, from or under any premises owned, leased,
occupied or controlled by it;
|
Liability
for environmental claims
|
14.1.20
|
it
has not entered into any negotiations or settlement agreements with any
person (including, without limitation, any prior owner of its property)
imposing material obligations or liabilities on it with respect to any
remedial action in response to the potential or actual Discharge of a
Hazardous Substance or environmentally related
claim;
|
Taxes
|
14.1.21
|
it
has filed all tax returns and other reports required to be filed and has
paid all taxes imposed on it or upon any of its assets that are due and
payable (save for any that are being contested in good faith and by
appropriate action and in respect of which it has provided or maintained
adequate reserves to meet any such
liability);
|
Material
adverse change
|
14.1.22
|
there
has been no material adverse change in its financial condition or the
financial condition of the Group (taken as a whole) since the date to
which the latest audited Financial Statements were delivered to the Agent
under Clause 15.2.1 (Financial Statements)
were made up nor in the consolidated financial condition, business, assets
or operations of the Group nor in the Collateral since that date which
will nor might reasonably be expected to result in a material adverse
effect;
|
Information
|
14.1.23
|
all
factual information delivered by it or on its behalf to the Agent in
connection with the business, operations and assets of the Group or in
connection with any of the Relevant Agreements from time to time was, in
each such case at the date of its delivery, true and correct in all
material respects and not misleading and all expressions of opinion,
forecasts and projections have been arrived at in good faith and have been
based upon reasonable grounds;
|
Information
Memorandum
|
14.1.24
|
(a)
all statements of fact contained in the Information Memorandum relating to
the Group are, or will be, true in all respects material to the Revolving
Facility, (b) all expressions of opinion or expectations and all forecasts
and projections provided in the Information Memorandum, have been, or will
be, arrived at in good faith and have been, or will be, based upon
reasonable grounds (in each case as at the date at which they are, or will
be, made or expressed to be made and in final form), and (c) it is not
aware, having made all due and reasonable enquiry, of any facts or
circumstances that have not been disclosed to the Agent, the Arranger and
the Lenders which would, if disclosed, be reasonably likely to affect the
decision of a person considering whether or not to provide finance to the
Borrowers;
|
Deductions
and withholdings
|
14.1.25
|
it
is not required to make any deduction or withholding from any payment it
may make under this Agreement;
|
Winding-up
|
14.1.26
|
neither
it nor any other Group Company has taken any corporate action nor have any
other steps been taken or legal proceedings been started or (to the best
of its knowledge and belief) threatened against it or any Group Company
for its winding-up, dissolution or re-organisation (other than for the
purposes of a bona fide solvent scheme of reconstruction or amalgamation
previously approved in writing by the Agent) or for the appointment of a
receiver, administrator, administrative receiver, trustee or similar
officer of it or of any or all of its
assets.
|
USD
Co
|
14.1.27
|
since
the date of its incorporation (save for professional fees) the USD Co has
incurred no liabilities and has acquired no assets and has undertaken no
transactions other than the entry into of and the performance of its
obligations under the Inter Company Sale
Agreement.
|
Accounts
and Inventory
|
14.2
|
Each
Obligor represents and warrants to and for the benefit of each other party
to this Agreement that, except as disclosed to and accepted by the Agent
in writing:
|
Accounts
|
14.2.1
|
|
(a)
|
each
existing Account represents, and each future Account will represent, a
bona fide sale or lease and delivery of goods by a Trading Company, or the
rendering of services by a Trading Company, in the ordinary course of such
Trading Company’s business;
|
|
(b)
|
each
existing Account is, and each future Account will be, for a liquidated
amount payable by the Account Debtor thereon on the terms set forth in the
invoice therefor or in the schedule thereof delivered to the Agent,
without set-off, deduction, defence, or counterclaim;
|
|
(c)
|
no
payment will be received with respect to any Account, and no credit,
discount, or extension, or agreement therefor will be granted on any
Account, except as reported to the Agent in accordance with this
Agreement;
|
|
(d)
|
each
copy of an invoice delivered to the Agent will be a genuine copy of the
original invoice sent to the Account Debtor named in
it; and
|
|
(e)
|
all
goods described in any invoice representing a sale of goods will have been
delivered to the Account Debtor and all services of any Trading Company
described in any invoice will have been
performed;
|
Inventory
|
14.2.2
|
with
effect from any Inventory Eligibility Date, in relation to each Trading
Company, all of its Inventory is and will be held for sale or lease, or to
be furnished in connection with the rendering of services in the ordinary
course of its business and is and will be fit for such purpose and will be
kept by it, at its own expense, in good and marketable condition (save for
damaged or obsolete items as notified to and agreed by the
Agent).
|
Repetition
|
14.3
|
Each
of the representations and warranties in Clauses 14.1 (General Representations and
Warranties) and 14.2 (Accounts and Inventory)
will be correct and complied with on the date of this Agreement and the
Effective Date and (other than the representations in Clauses 14.1.13
(Distributions),
14.1.24 (Information
Memorandum) and 14.1.25 (Deductions and
Withholdings)) will also be correct and complied with on each date
on which a Loan is requested or to be made (or, as the case may be, a
Letter of Credit or Guarantee is issued or requested to be issued) and on
each date on which a Prepayment (as defined in the Accounts Transfer
Conditions) is made under an Invoice Discounting Agreement as if repeated
then by reference to the then existing
circumstances.
|
|
15.
|
FINANCIAL
CONDITION
|
Books
and Records
|
15.1
|
Maintenance
|
15.1.1
|
BMEH
shall maintain, and shall procure that each Group Company shall maintain,
at all times, books, records and accounts which are complete and correct
in all material respects and in relation to which timely entries are made
of their transactions in accordance with Applicable GAAP. BMEH
shall, and shall procure that each Group Company shall, by means of
appropriate entries, reflect in such accounts and in all Financial
Statements proper liabilities and reserves for all taxes and proper
provision for depreciation and amortisation of any property or asset and
bad debts, all in accordance with Applicable GAAP. BMEH shall,
and shall procure that each Group Company shall, maintain at all times
books and records pertaining to any applicable Collateral in such detail,
form and scope as the Agent shall reasonably require, including without
limitation records of (i) all payments received and all credits and
extensions granted with respect to the Accounts; (ii) the return,
rejection, repossession, stoppage in transit, loss, damage or destruction
of any Inventory; and (iii) all other dealings affecting the
Collateral.
|
Access
|
15.1.2
|
BMEH
and/or, as applicable, BMUK shall, upon receiving not less than two
business days’ notice from the Agent (or without notice following a
Default which is continuing), permit and procure that each Group Company
permits the Agent or any person authorised by the Agent at any reasonable
time to have access to its premises and books, records and accounts and to
make extracts from and take copies of such books, records and
accounts.
|
Provision
of Financial Information
|
15.2
|
BMEH,
BMEP, BMEBV, BMEE and BMUK shall each deliver to the Agent in sufficient
copies for each of the Lenders:
|
Financial
Statements
|
15.2.1
|
as
soon as the same become available, but in any event within 180 days after
the end of each Financial Year, the audited consolidated Financial
Statements of the Group for such Financial Year together with (i) the
audited statutory accounts of each Group Company for such Financial Year
and (ii) a consolidation of such audited Financial Statements for each
member of the BMUK/IDFC Group and to the extent that any Financial
Statements have been prepared in accordance with or otherwise converted to
or conformed with US GAAP, such Financial Statements shall be accompanied
by a note or similar document prepared by the Auditors (or prepared by the
Parent and signed by the Auditors) which (a) reconciles the Financial
Statements to the Management Accounts delivered for the relevant Financial
Year pursuant to clause 15.2.2 and (b) explains, in reasonable detail, any
changes or adjustments made to the figures contained in such Management
Accounts, to comply with US GAAP;
|
Management
Accounts
|
15.2.2
|
as
soon as the same become available, but in any event within 25 days of the
end of each Management Accounting Period, Management Accounts of itself
and each member of the Group (other than the members of the Restricted
Group) (incorporating, without limitation, a break-out of all intercompany
balances) as at the end of and for that Management Accounting Period and,
in relation to the Management Accounting Periods ending on 31 March, 30
June, 30 September and 31 December in each year, within 45 days of the end
of such Financial Quarter a consolidation of those Management Accounts
showing the consolidated and consolidating financial position for the
Financial Quarter ending on each such date and for the Financial Year to
date and a further consolidation of those Management Accounts showing the
consolidated and consolidating financial position for the Financial
Quarter ending on each such date and for the Financial Year to date of
each member of the BMUK/IDFC Group;
|
Latest
Projections
|
15.2.3
|
no
sooner than 90 days and no later than 15 days prior to the beginning of
each Financial Year, consolidated and consolidating projected balance
sheets, statements of income and expense and statements of cash flow for
the BMUK/IDFC Group and the Group as at the end of and for each month of
such Financial Year and a statement of projected EBITDA from the start of
such Financial Year to the end of each Financial Quarter falling within
such Financial Year (such projected EBITDA calculations to be acceptable
to the Agent);
|
Capital
Expenditure
|
15.2.4
|
within
45 days after the end of each Financial Quarter, a report of the Capital
Expenditure of the Group for such Financial Quarter and forecast of the
projected Capital Expenditure for the remainder of the then current
Financial Year or, in the case of the last Financial Quarter in any
Financial Year, for the following Financial
Year;
|
Taxes
and Claims
|
15.2.5
|
together
with the Management Accounts delivered under Clause 15.2.2 (Management Accounts) a
certificate signed by the finance director of BMUK that all the sums
referred to in Clause 16.2.6 (Payment of taxes and
Claims) have been paid in respect of the period covered by such
Management Accounts;
|
General
information
|
15.2.6
|
at
the same time as sent to its shareholders or creditors generally, any
circular, document or other written information sent to its shareholders
or creditors as such or the shareholders or creditors of any other
Obligor;
|
Quarterly
Sales Certificates
|
15.2.7
|
BMUK
shall, at the same time as it delivers the Management Accounts that are
required to be delivered to the Agent in accordance with Clause 15.2.2
(Management
Accounts) following the end of a Financial Quarter, deliver to the
Agent a certificate (signed by its finance director) (a “Quarterly Sales
Certificate”) specifying (1) the total sales (the “Total Year 1 Sales”)
made by the Group in the 12 month period to the end of that Financial
Quarter (the “Previous
Sales Year”), (2) the total sales (the “Total Year 2 Sales”)
made by the Group in the 12 month period immediately preceding the
Previous Sales Year and (3) the total sales (the “Total Lost Customer
Sales”) made by the Group in the Previous Sales Year to customers
to whom sales have not been made in the previous Financial
Quarter;
|
Quarterly
Supply Certificates
|
15.2.8
|
BMUK
shall, at the same time as it delivers the Management Accounts that are
required to be delivered to the Agent in accordance with Clause 15.2.2
(Management
Accounts) following the end of a Financial Quarter, deliver to the
Agent a certificate (signed by its finance director) (a “Quarterly Supply
Certificate”) specifying (1) the total amount invoiced to the Group
by suppliers of goods and services to the Group (the “Total Year 1 Supply
Costs”) in the 12 month period to the end of that Financial Quarter
(the “Previous Purchasing
Year”), (2) the total amount invoiced to the Group by suppliers of
goods and services to the Group (the “Total Year 2 Supply
Costs”) in the 12 month period immediately preceding the Previous
Purchasing Year and (3) the total amount invoiced to the Group by
suppliers of goods and services to the Group (the “Total Reduced Supply
Costs”) in the Previous Purchasing Year and from whom the Group has
not received invoices in respect of goods or services supplied by those
suppliers in the previous Financial
Quarter;
|
Other
information
|
15.2.9
|
from
time to time on the request of the Agent, such information about the
business, operations and financial condition of each Group Company as the
Agent may reasonably require, other than any information disclosure of
which will cause such Group Company to breach any confidentiality
undertaking to which it is a party, in which case it shall and shall
procure that any relevant Group Company shall, use all reasonable efforts
to procure the consent of the counterparty to such undertaking to make
disclosure; and
|
|
15.2.10
|
BMUK
shall, as soon as the same become available, but in any event within 45
days of the end of each Financial Quarter, deliver to the Agent the Parent
Financial Documents in respect of that Financial
Quarter.
|
Financial
Information - basis of preparation
|
15.3
|
BMEH,
BMEP, BMEBV, BMUK and BMEE shall each ensure
that:
|
True
and fair view
|
15.3.1
|
each
set of Financial Statements delivered by it or at its request pursuant to
Clause 15.2.1 (Financial
Statements) is prepared (except as stated therein) using the same
accounting principles and policies as were used in the preparation of the
BMUK Pro-Forma Balance Sheet and gives a true and fair view of the
financial condition of the BMUK/IDFC Group and of the Group, as the case
may be, as at the end of the period to which those Financial Statements
relate and of the result of their respective businesses and operations
during such period;
|
Audit
|
15.3.2
|
each
set of Financial Statements delivered by it or at its request pursuant to
Clause 15.2.1 (Financial
Statements) has been audited by the Auditors and each set of
Management Accounts delivered by it pursuant to Clause 15.2.2 (Management Accounts)
has been certified as being correct by BMUK (acting through its finance
director), subject to normal year-end
adjustments;
|
Certificate
of BMUK
|
15.3.3
|
each
set of Financial Statements delivered pursuant to Clause 15.2.1 (Financial Statements)
and each set of Management Accounts delivered by it pursuant to Clause
15.2.2 (Management
Accounts) in respect of a Management Accounting Period ending on
the last day of any Financial Quarter (as consolidated for that Financial
Quarter) is accompanied by a certificate of BMUK (acting through its
finance director) setting forth in reasonable detail (i) when delivered
with the Financial Statements delivered pursuant to Clause 15.2.1 (Financial Statements)
only, the calculations required to show the actual EBITDA achieved from
the start of the Financial Year to which those Financial Statements relate
to the end of each Financial Quarter falling within that Financial Year
and the Variance (if any) for each Financial Quarter falling within that
Financial Year and (ii) in each case, the calculations required to
establish that BMUK was in compliance with its covenants set forth in
Clause 15.5 (Financial
Ratios) during the period covered in such Financial Statements (or,
as the case may be, during such Financial Quarter) and stating that,
except as explained in reasonable detail in such
certificate:
|
|
(a)
|
all
of the representations and warranties of each Obligor contained in this
Agreement and the other Finance Documents are correct and complete as at
the date of such certificate as if made at such
time; and
|
|
(b)
|
no
Event of Default then exists or existed during the period covered by such
Financial Statements or, as the case may be, Management
Accounts,
|
and
describing and analysing in reasonable detail all material trends, changes and
developments in such Financial Statements or Management Accounts. If such
certificate discloses that a representation or warranty is not correct or
complete, or that a covenant has not been complied with, or that an Event of
Default existed or exists, such certificate shall set forth what action BMUK or
the relevant Obligor has taken or proposes to take with respect
thereto.
|
15.3.4
|
each
set of Financial Statements delivered pursuant to Clause 15.2.1 (Financial Statements)
and each set of Management Accounts delivered by it pursuant to Clause
15.2.2 (Management
Accounts) in respect of each Management Accounting Period is
accompanied by a certificate of BMUK (acting through its finance director)
setting forth in reasonable detail the calculations required to establish
that BMUK was in compliance with its covenants set forth in
Clauses 15.6 and 15.7 (Financial Ratios)
during the period covered in such Financial Statements (or, as the case
may be, during such Management Accounting
Period).
|
Financial
Ratios
|
15.4
|
In
this Agreement, unless the context otherwise
requires:
|
“Adjusted Tangible Assets”:
means all of the BMUK/IDFC Group's assets except:
|
|
(i)
|
deferred
assets, other than prepaid insurance and prepaid
taxes;
|
|
|
(ii)
|
patents,
copyrights, trademarks, trade names, franchises, goodwill and other
similar intangibles;
|
|
|
(iii)
|
Restricted
Investments;
|
|
|
(iv)
|
unamortised
debt discount and expense;
|
|
|
(v)
|
assets
constituting Intercompany Accounts;
and
|
|
|
(vi)
|
fixed
assets to the extent of any write-up in the book value thereof resulting
from a revaluation effective after the date of this Agreement;
and
|
“Adjusted Tangible Net Worth”:
means, at any date:
|
|
(i)
|
the
book value (after deducting related depreciation, amortisation, valuation
and other proper reserves as determined in accordance with Applicable
GAAP) at which the Adjusted Tangible Assets would be shown on a
consolidated balance sheet of the BMUK/IDFC Group at such date prepared in
accordance with Applicable GAAP;
less
|
|
|
(ii)
|
the
amount at which the BMUK/IDFC Group’s liabilities would be shown on such
balance sheet, including as liabilities all reserves for contingencies and
other potential liabilities which would be required to be shown on such
balance sheet.
|
“Current
Assets”: means the aggregate of all inventory, work in
progress, trade and other receivables of each member of the Group including
prepayments in relation to operating items and sundry debtors (but excluding
cash in hand and at bank) maturing within 12 months from the date of
computation, but excluding amounts in respect of:
|
|
(a)
|
receivables
in relation to tax;
|
|
|
(b)
|
Exceptional
Items and other non-operating
items;
|
|
|
(c)
|
insurance
claims;
|
|
|
(d)
|
any
interest owing to any member of the Group;
and
|
|
|
(e)
|
any
indebtedness owing by any other member of the Group or by the
Parent;
|
“Current
Liabilities”: means the aggregate of all liabilities
(including trade creditors, accruals and provisions) of each member of the Group
falling due within 12 months from the date of computation, but excluding amounts
in respect of:
|
|
(a)
|
liabilities
for Borrowings;
|
|
|
(b)
|
liabilities
for tax;
|
|
|
(c)
|
Exceptional
Items and other non-operating
items;
|
|
|
(d)
|
insurance
claims; and
|
|
|
(e)
|
liabilities
in relation to dividends declared but not paid by BMUK or by a member of
the Group in favour of a person which is not a member of the
Group;
|
“Exceptional
Items”: means any exceptional, one off, non-recurring or
extraordinary items; and
“Relevant Accounting
Information”: means the accounting information most recently delivered
under this Agreement being (i) the Financial Statements delivered under Clause
15.2.1 (Financial Statements) and (ii) each set of Management Accounts delivered
under Clause 15.2.2 (Management Accounts);
|
15.5
|
BMUK
shall ensure that, at all times, the consolidated financial condition of
the BMUK/IDFC Group shall be such that Adjusted Tangible Net Worth shall
not at any time be less than £26,936,000 as determined at the end of each
Financial Quarter by reference to the Relevant Accounting
Information.
|
|
15.6
|
BMUK
shall ensure that the financial condition of the Group shall be such that
the ratio of EBITDA to Cash Outflow for each period of twelve months
ending on the last day of each Management Accounting Period exceeds 1.1:1
as determined at the end of each Management Accounting Period by reference
to the Relevant Accounting
Information.
|
|
15.7
|
BMUK
shall ensure that, at all times, the ratio of Current Assets to Current
Liabilities exceeds 1:1 as determined at the end of each Management
Accounting Period by reference to the Relevant Accounting
Information.
|
Changes
in basis of preparation of Relevant Accounting Information
|
15.8
|
Where
any Relevant Accounting Information to be delivered under clause 15 has
been prepared in a manner which is inconsistent with the accounting
principles or policies in accordance with which the Pro-Forma Balance
Sheet was prepared, whether as a result of any change in such principles
or otherwise, BMEH or BMUK shall provide to the Agent a written
explanation of any such inconsistency, together with details of its
effects. If any such inconsistency would be likely to affect the ability
of the Agent to satisfy itself from the information delivered as Relevant
Accounting Information as to compliance with the provisions of Clause 15.4
(Financial
Ratios), the Agent shall have the right to adjust the financial
ratios set out in Clause 15.4 (Financial Ratios) or
the relevant definitions set out in Clause 15.4 (Financial Ratios) so as
to reflect so far as is practicable the effect of any such change
(provided that the effect of such adjustments, taking into consideration
such change, shall not be such as to render the said financial ratios more
onerous upon BMUK than as at the date of this
Agreement).
|
|
16.
|
COVENANTS
|
Duration
|
16.1
|
The
undertakings in this Clause 16 (Covenants) shall remain
in force from the date of this Agreement and so long as any amount is
outstanding under this Agreement.
|
Positive
covenants
|
16.2
|
Each
Obligor undertakes that:
|
Consents
|
16.2.1
|
it
will, and will procure that each of the Obligors will, obtain, comply with
the terms of and do all that is necessary to maintain in full force and
effect all authorisations, approvals, licences and consents required by
all applicable laws and regulations to enable it lawfully to enter into,
perform and comply with its obligations under each of the Relevant
Agreements to which it is or will be a party and any document to be
entered into pursuant thereto or to ensure the legality, validity,
enforceability or admissibility in evidence of such Relevant Agreements
and each such document in England and Wales and, if different, its
jurisdiction of incorporation and any jurisdiction in which any of its
assets may be situated;
|
Insurance
|
16.2.2
|
it
will maintain, and procure that each Obligor maintains, policies of
insurance on and in relation to its business and assets with financially
sound and reputable insurers acceptable to the Agent against such risks
and to such extent as is usual for companies carrying on a business such
as that carried on by it and each Obligor whose practice is not to self
insure;
|
Compliance
with law
|
16.2.3
|
it
will comply, and will procure that each Obligor complies, with all
applicable laws and regulations including, without limitation, any
applicable Environmental Law;
|
Environmental
Laws
|
16.2.4
|
it
will, and will procure that each Obligor will, take prompt and appropriate
action to respond to and remedy any non-compliance with any Environmental
Law and shall regularly report to the Agent on such response and
remedying. Without limiting the generality of the foregoing,
whenever BMUK gives notice to the Agent of such non-compliance pursuant to
Clause 16.2.7 (Notices
to Agent) BMUK will, at the Agent’s request and BMUK’s
expense:
|
|
(a)
|
cause
an independent environmental engineer acceptable to the Agent to
investigate and conduct such tests of the site where any Obligor’s
non-compliance or alleged non-compliance with any Environmental Law has
occurred and prepare and deliver to the Agent a report setting forth the
results of such tests, a proposed plan for responding to any environmental
problems described therein, and an estimate of the costs thereof;
and
|
|
(b)
|
provide
to the Agent a supplemental report of such engineer whenever the scope of
the environmental problems, or BMUK’s response thereto or the estimated
costs thereof, changes;
|
Conduct
of business
|
16.2.5
|
it
has, and will ensure that each Obligor has, the right to conduct its
business and operations as they are conducted in all applicable
jurisdictions and will do, and will procure that each Obligor does, all
things necessary (including compliance with all terms and conditions of
any licences and consents) to obtain, preserve and keep in full force and
effect all rights, licences and consents) to obtain, preserve and keep in
full force and effect all rights, licences and authorisations (including,
without limitation, all Environmental Authorisations) and consents as are
necessary for the conduct of such business and
operations;
|
Payment
of taxes and claims
|
16.2.6
|
|
|
(a)
|
it
will, and will procure that each Obligor will, and BMEBV will procure that
each IDF Company will, duly and punctually pay and discharge (i) all taxes
imposed upon it or its properties (save where the same are being contested
in good faith and by appropriate proceedings and where adequate reserves
are being maintained with respect thereto) and (ii) all lawful claims
which, if unpaid, would by law become encumbrances upon any of its
properties; and
|
|
(b)
|
BMEBV
will procure that each IDF Company will duly and punctually pay and
discharge all obligations to:
|
|
(i)
|
pay all emoluments and benefits
to which its employees are entitled (including, without limitation, all
wages and salaries, sick pay, maternity pay, pension contributions,
bonuses, commission, any liability to taxation (including income tax and
national insurance contributions deducted or deductible from such amounts
under the PAYE system in the United Kingdom or such equivalent taxation
and social security payments)) in its jurisdiction of incorporation;
and
|
|
(ii)
|
comply with (in all material
respects) all statutes, regulations and collective agreements relevant to
the conditions of service of its employees or to the relations between it
and its employees (or former employees, as the case may be), any
recognised trade union or works council and the laws applicable to
the employment of the employees in its jurisdiction of
incorporation;
|
Notices
to Agent
|
16.2.7
|
BMUK
will notify the Agent in writing of the following matters at the following
times (each such notice to describe the subject matter thereof in
reasonable detail and to set out the action that BMUK or the relevant
Obligor has taken or proposes to take with respect
thereto):
|
|
(a)
|
immediately
after becoming aware of the existence of any Default;
|
|
(b)
|
immediately
after becoming aware that any shareholder in, or any creditor of, any
Obligor has given notice or taken any action with respect to a claimed
default by such Obligor and in circumstances where such shareholder or
creditor has taken or is threatening to take any action or steps which
will or might reasonably be expected to have a material adverse
effect;
|
|
(c)
|
immediately
after becoming aware of any material adverse change in the assets,
business, operations or condition (financial or otherwise) of any Obligor
or of the Group (taken as a whole);
|
|
(d)
|
immediately
after becoming aware of any pending or threatened action, suit, proceeding
or counterclaim by any person which may have a material adverse effect on
any Obligor, or any pending or threatened investigation by a public
authority;
|
|
(e)
|
immediately
after becoming aware of any pending or threatened strike, work stoppage,
material unfair labour practice claim, or other material labour dispute
affecting any Obligor;
|
|
(f)
|
immediately
after becoming aware of any violation of any law, statute, regulation, or
ordinance of a public authority applicable to any Obligor or its assets
which may have a material adverse effect on it or on such
Obligor;
|
|
(g)
|
immediately
after becoming aware of any violation by any Obligor of any Environmental
Law or immediately upon receipt of any notice (including a works notice)
delivered pursuant to any Environmental Law or of any notice that a public
authority has asserted that any Obligor is not in compliance with any
Environmental Law or that its compliance is being
investigated;
|
|
(h)
|
ten
(10) days prior to any Obligor changing its name or the address of its
registered office;
|
|
(i)
|
immediately
upon becoming aware that any Group Company has received a notice or other
document from any of its suppliers notifying such Group Company of a
breach by such Group Company of any supply agreement to which it is a
party;
|
Hedging
|
16.2.8
|
BMUK
and each other relevant Borrower shall, within 60 days of the Closing Date
or, in the case of any Additional Borrower, within 60 days of the date
upon which it becomes an Additional Borrower, enter into such Hedging
Agreements with a Hedge Provider as the Agent may require (after
consultation with BMUK) and in such form as the Agent (acting reasonably)
may require;
|
St.
Crispin Property
|
16.2.9
|
BMUK
shall promptly notify the Agent of any proposed refinancing of all or any
part of the financial indebtedness secured by any encumbrance over the St.
Crispin Property and shall not complete such refinancing without the St
Crispin Mortgagee having entered into any intercreditor deed or other
priority arrangements in form and substance mutually acceptable to the
relevant replacement St. Crispin Mortgagee, BMUK and the
Agent;
|
|
16.2.10
|
[Intentionally
omitted.]
|
Material
Contracts and terms of business with Account Debtors
|
16.2.11
|
it
will and will procure that each relevant Trading Company will promptly
notify the Agent of:
|
|
(a)
|
any
proposed change in, or amendment to, any Material Contract or its terms of
business with Account Debtors including, without limitation, any material
change to any retention of title or similar provisions but excluding in
each case minor or routine changes or amendments which could not
reasonably be expected to have a materially adverse effect on the
interests of the Lenders or the Receivables Purchaser;
|
|
(b)
|
any
material or persistent breach by any relevant Trading Company or any other
party to any of the Material Contracts and, if relevant, of any steps
being taken or proposed to remedy such breach; and
|
|
(c)
|
any
proposal to repudiate or cancel, or any purported repudiation or
cancellation of, any of the Material
Contracts;
|
Additional
Security
|
16.2.12
|
without
prejudice to the obligations of each of the Obligors pursuant to the
Security Documents to which each of them it is expressed to be a party, it
will grant or procure that there is granted to the Security Trustee, such
new or further security (“additional security”)
over any business, shares or other assets which may be acquired pursuant
to any Pre-Approved Acquisition or any other acquisition permitted
pursuant to the Finance Documents; any such additional security shall be
in such form and contain such terms and conditions as the Agent or the
Lenders (having carried out all necessary due diligence) may require
having regard to the nature and location of the assets in question and
shall be required to be effected in favour of the Security Trustee within
90 days (or such later date as the Agent may agree) of the date of
completion of the relevant acquisition; it will provide the Security
Trustee with such evidence as the Security Trustee may require that all
applicable laws and regulations relating to the execution of such
additional security have been duly complied with (including any statutory
declarations and/or special resolutions required under sections 155 and
156 Companies Act 1985; all costs and expenses (including legal fees)
incurred by any of the Beneficiaries in preparing, negotiating and
perfecting any such additional security shall be for the account of
BMUK;
|
Dormant
Companies
|
16.2.13
|
it
will ensure that each of the Dormant Companies remains dormant and
promptly notify the Agent of any proposal for any of such companies to
recommence trading, which they shall not be permitted to do unless BMUK
has received the prior written consent of the
Agent;
|
Excess
Availability
|
16.2.14
|
the
Excess Availability (calculated on each day) shall be not less than
£8,000,000 (provided that if on any day the Excess Availability is less
than £8,000,000 but more than £4,000,000, the same shall not constitute a
breach of this Clause 16.2.14 provided that a repayment of the Revolving
Facility is made within 2 business days of that day and immediately
following such payment Excess Availability is not less than
£8,000,000);
|
EC
Insolvency Regulation
|
16.2.15
|
it
will maintain, and procure that all other members of the BMUK Group
maintain, its centre of main interests (within the meaning of the EC
Insolvency Regulation) in the United
Kingdom.
|
USD
Co
|
16.2.16
|
it
will procure that the USD Co will (and the USD Co undertakes that it
shall):
|
|
(a)
|
maintain
books and records separate from any other person or
entity;
|
|
(b)
|
maintain
its accounts separate from any other person or entity;
|
|
(c)
|
ensure
that all of its assets are capable of being identified as belonging to the
USD Co and are readily capable of being removed without any physical
obstruction or impediment or any interference as a result of the exercise
of the rights of any Group Company, member of the Restricted Group or of
any other third party or any agent or other person acting on behalf of any
of them;
|
|
(d)
|
indebtedness
under any finance leases disclosed to the Agent prior to the date of this
Agreement or which are fully disclosed in the Latest Projections and
budgets for Capital Expenditure of the Group as delivered to the Agent
pursuant to Clauses 15.2.3 (Latest Projections) and
15.2.4 (Capital
Expenditure) and as approved by the Agent;
|
|
(e)
|
maintain
separate financial statements;
|
|
(f)
|
indebtedness
due and owing by BMUK to the Parent provided that (a) such indebtedness is
unsecured and is incurred on terms no less favourable to BMUK than would
be applicable in a comparable arm's length transaction with a third party
that is not an Affiliate and (b) the aggregate amount of such indebtedness
does not exceed at any time US$15,000,000; or
|
|
(g)
|
use
stationery and invoices in its name only;
|
|
(h)
|
hold
itself out as a separate entity;
|
|
(i)
|
take
prompt action to correct any known misunderstanding on the part of any
person dealing with the USD Co regarding its separate identity;
and
|
|
(j)
|
maintain
its registered office and established place of business in England and
Wales and carry out its business in England and Wales and maintain its
centre of main interests (within the meaning of the EC Insolvency
Regulation) in the United
Kingdom.
|
Negative
Covenants
|
16.3
|
Each
Obligor undertakes that:
|
Encumbrances
|
16.3.1
|
it
will not, and will ensure that no Obligor will, without the prior written
consent of the Agent, create, agree to create or permit to subsist any
encumbrance on or over their respective assets to secure any indebtedness
of any person other than the following:
|
|
(a)
|
any
encumbrance on or over the assets of any Obligor subsisting at the
Effective Date and agreed to by the Agent (and in the case of the
encumbrances held by the St. Crispin Mortgagee, any replacement thereof)
provided that the principal, capital or nominal amount secured by any such
encumbrance may not be increased beyond the amount currently secured by
the relevant encumbrance as at the Effective Date without the prior
written consent of the Agent;
|
|
(b)
|
encumbrances
in favour of the Security Trustee;
|
|
(c)
|
the
Pledge Agreements;
|
|
(d)
|
liens
or rights of set-off arising solely by operation of law incurred in the
ordinary course of business and not in connection with the borrowing of
money, for sums not more than 30 days overdue;
|
|
(e)
|
encumbrances
arising out of title retention provisions in a supplier’s standard
conditions of supply in respect of goods acquired by the relevant person
in the ordinary course of trading;
|
|
(f)
|
any
other encumbrance created or outstanding with the prior written consent of
the Agent;
|
|
(g)
|
agreements
and arrangements of the type referred to in Clause 16.3.5(d) to the extent
that the same constitute security;
|
|
(h)
|
any
encumbrance over any asset (other than Accounts or Inventory) acquired by
any Obligor after the date of this Agreement and subject to which such
asset is acquired provided that (1) except with the prior written consent
of the Agent, the principal, capital or nominal amount secured by such
encumbrance may not be increased beyond the amount secured thereby at the
date of such acquisition and (2) the same is discharged within 90 days of
the date of such acquisition;
|
|
(i)
|
provided
that, in the case of any encumbrance created or existing pursuant to sub
paragraphs (a) and (f) above, it shall be a condition to the creation of
such encumbrance that BMUK shall, if so requested by the Agent, procure
that the beneficiary of the relevant encumbrance shall accede to an
intercreditor deed or other priority arrangement on terms acceptable to
the Agent;
|
Disposals
|
16.3.2
|
without
the prior written consent of the Agent, it will not, and it will ensure
that no Group Company will (whether by a single transaction or a number of
related or unrelated transactions and whether at one time or over a period
of time), sell, transfer, assign, lease out, lend or otherwise dispose of
(whether outright, by a sale and repurchase or sale and leaseback
arrangement or otherwise) any part of its or their assets having an
aggregate value in excess of £750,000 in any one Financial Year except,
sales of Inventory in the ordinary course of trading, sales to Affiliates
permitted under Clause 16.3.8 (Transactions with
Affiliates) and sales of Equipment permitted under Clause 16.4.11
(Disposal of the
Equipment) provided that, where any matter relating to any leasing,
sub-leasing or other similar arrangement with respect to the St. Crispin
Property requires the consent of the Agent pursuant to the terms of this
Clause 16.3.2 (Disposals), such
consent shall not be withheld if the relevant subject matter also requires
the consent of the St. Crispin Mortgagee and the St. Crispin Mortgagee has
granted its consent to such matter;
|
Distributions
and changes in capital structure
|
1.1.1
|
without
the prior written consent of the
Agent:
|
|
(a)
|
it
will not, and it will ensure that no Group Company will, directly or
indirectly declare, make or pay, or incur any liability to make or pay,
any Distribution, or return any capital to any shareholder by way of
capital reduction or otherwise, provided
that:
|
|
(i)
|
BMEE
may make Distributions or returns of capital to BMUK;
|
|
(ii)
|
BMUK
and any one or more of the IDF Companies may make Distributions or returns
of capital to BMEBV;
|
|
(iii)
|
BMEBV
may make Distributions or returns of capital to BMEP;
|
|
(iv)
|
BMEP
may make Distributions or returns of capital to BMEH;
and
|
|
(v)
|
(with
the consent of the Agent) BMEH may make Distributions or returns of
capital to the Parent,
|
so long
as all of such payments in aggregate, together with the aggregate principal
amount of all loans made pursuant to Clause 16.3.7(a) (Loans and guarantees), do not
exceed £2,000,000 (or the equivalent in any other currency) in any Financial
Year and do not exceed £6,000,000 (or the equivalent in any other currency)
during the term of this Agreement but, for the avoidance of doubt, no Group
Company may make any Distribution to any member of the Restricted
Group;
and provided further
that the Agent shall have received a certificate signed by the
finance director of BMUK confirming that:
(1) each
of the Obligors is in compliance with all of its obligations under the Finance
Documents to which it is a party and no Default has occurred and is continuing
or will result from the payment of the Distribution or return of capital
proposed;
(2) there
is Excess Availability under the Revolving Facility of not less than £5,000,000
as at the date of such certificate and there will be an average Excess
Availability of not less than £5,000,000 both as at the proposed date of payment
of the relevant Distribution or return of capital and for a continuous period of
six (6) months thereafter; and
(3) in
the case of a Distribution to be paid by BMEH to the Parent only, the largest
twenty (20) trade creditors of the Borrowers (as a whole) are being paid in full
when the relevant amounts become due in accordance with their prevailing credit
terms; and
|
(b)
|
it
will not, and it will ensure that no Group Company will, make any change
in the capital structure of any Group Company which could have a material
adverse effect on any Obligor or the Group (taken as a
whole);
|
Transactions
having a material adverse effect
|
16.3.4
|
it
will not, and it will ensure that no Obligor will, enter into any
transaction which has or might reasonably be expected to have, a material
adverse effect on any Obligor;
|
Indebtedness
|
16.3.5
|
it
will not, and it will ensure that no Group Company will, incur or maintain
any indebtedness other than:
|
|
(a)
|
indebtedness
under the Finance Documents;
|
|
(b)
|
trade
payables and contractual obligations to suppliers and customers incurred
in the ordinary course of trading;
|
|
(c)
|
indebtedness
between members of the Group as disclosed to and permitted by the
Agent;
|
|
(d)
|
indebtedness
under any finance leases disclosed to the Agent prior to the date of this
Agreement or which are fully disclosed in the Latest Projections and
budgets for Capital Expenditure of the Group as delivered to the Agent
pursuant to Clauses 15.2.3 (Latest Projections) and
15.2.4 (Capital
Expenditure) and as approved by the Agent;
|
|
(e)
|
indebtedness
due and owing under any foreign exchange or interest-rate swap, under any
option, cap, collar or floor or under any other hedging agreement or
similar arrangement with any bank or other financial institution and
disclosed to the Agent prior to the date of this Agreement and any
replacement thereof or other hedging arrangement (which is intended to
hedge exposure to interest rate or currency exchange fluctuations and not
an arrangement of a speculative nature) entered into after the date of
this Agreement, in the case of interest rate hedging only, with the prior
written consent of the Agent and provided that, if the relevant Hedge
Provider is not the Arranger, any financial indebtedness due and owing
under the relevant hedging arrangement may not be secured without the
consent of the Agent (acting on the instructions of all of the Lenders);
or
|
|
(f)
|
indebtedness
due and owing by BMUK to the Parent provided that (a) such indebtedness is
unsecured and is incurred on terms no less favourable to BMUK than would
be applicable in a comparable arm's length transaction with a third party
that is not an Affiliate and (b) the aggregate amount of such indebtedness
does not exceed at any time US$15,000,000; or
|
|
(g)
|
Bank
Product Debt
|
|
(h)
|
indebtedness
due and owing by BMUK to the St. Crispin Mortgagee, provided that the
aggregate principal amount of such indebtedness may not be increased after
the Effective Date; or
|
|
(i)
|
indebtedness
due and owing:
|
|
(i)
|
by
BMUK to BMEBV provided that (a) such indebtedness is unsecured and is
incurred on terms no less favourable to BMUK than would be applicable in a
comparable arm's length transaction with a third party that is not an
Affiliate and (b) the aggregate amount of such indebtedness does not
exceed at any time US$40,000,000; and
|
|
(ii)
|
by
BMEBV to BMEP provided that (a) such indebtedness is unsecured and is
incurred on terms no less favourable to BMEBV than would be applicable in
a comparable arm's length transaction with a third party that is not an
Affiliate and (b) the aggregate amount of such indebtedness does not
exceed at any time US$40,000,000;
|
|
(j)
|
indebtedness
due and owing by BMEH to the IBM Entities under the BMEH IBM
Guarantees;
|
|
(k)
|
indebtedness
due and owing by BMEH to Mr Klaus Reichl under the BMEH Reichl
Guarantee,
|
and will
not, in any event, pay any amount in respect of any financial indebtedness due
to the St Crispin Mortgagee, save in accordance with the provisions of the St.
Crispin Priority Agreement or any subsequent intercreditor deed or priority
arrangement approved by the Agent in accordance with this
Agreement;
Prepayment
|
16.3.6
|
it
will not, and it will ensure that no Group Company will, voluntarily
prepay or redeem any financial indebtedness, save that each Borrower may
make prepayments under this Agreement in accordance with its terms and
save that any Group Company may, in the ordinary course of business, make
early payments to any trade
creditor;
|
Loans
and guarantees
|
16.3.7
|
it
will not, and will ensure that no Group Company will, make, roll-over or
continue to remain outstanding any loans, grant any credit (save in the
ordinary course of trading) or give any guarantee to or for the benefit of
any person (other than any guarantee permitted pursuant to Clause 16.4.15
(St. Crispin Property
Guarantee)) or otherwise voluntarily assume any liability, whether
actual or contingent, in respect of any obligation of any other person,
save that:
|
|
(a)
|
BMEH,
BMEP, BMEBV, each of the Borrowers and IDF Companies may make any loans or
grant any credit to each other and to any one or more of the IDF Companies
(but, subject to paragraph (d) and (e) of this Clause 16.3.7 (Loans and guarantees),
not to any member of the Restricted Group) which, in the case of loans to
BMEH and/or BMEP and/or BMEBV, in aggregate together with any loans or
credit granted to the Parent in accordance with Clause 16.3.7(b) below, do
not exceed £2,000,000 (or the equivalent in any other currency) in any
period of twelve (12) months commencing on the Closing Date and do not
exceed £6,000,000 (or the equivalent in any other currency) during the
term of this Agreement;
|
|
(b)
|
BMUK
may make any loans or grant any credit to the Parent which are repayable
on demand and which, in aggregate, do not exceed the Parent Loan Limit at
any time during the term of this Agreement;
|
|
(c)
|
a
Group Company may make loans to its employees (other than its directors)
provided that the aggregate amount of all such loans made by all of the
Group Companies shall not exceed £20,000;
|
|
(d)
|
a
Group Company may roll-over or continue to make available (but not
increase the principal amount thereof, other than through the
capitalisation of accrued interest) any existing loans or financial
accommodation to any other Group Company or, subject to any other
applicable restrictions in this Agreement, to a member of the Restricted
Group (and for the avoidance of doubt the aggregate amount of loans and
accrued interest outstanding to the Restricted Group as at the Effective
Date is € 8,302,070);
|
|
(e)
|
BMEH
may make loans or other financial accommodation to one or more members of
the Restricted Group, provided always that BMEH is able to provide
evidence satisfactory to the Agent (acting reasonably), whether by way of
the provision of Management Accounts, Financial Statements or otherwise,
from which the Agent is able to determine that such loans or other
advances will be funded wholly out of new funds made available to BMEH
after the Closing Date by loans from the Parent or which have otherwise
been invested in BMEH by the Parent after the Closing Date by way of the
subscription for equity or other capital contribution in or to BMEH and
not funded by any existing funds of BMEH as at the Closing
Date;
|
|
(f)
|
the
Borrowers and the IDF Companies may maintain inter company balances
between themselves in an aggregate amount not exceeding €2,000,000 at any
time provided that the same are maintained on arms' length commercial
terms in the ordinary course of business;
|
|
(g)
|
each
of the loans referred to in Clause 16.3.5(i) (Indebtedness) may be
made;
|
|
(h)
|
[intentionally
omitted;]
|
|
(i)
|
the
BMEH IBM Guarantees are hereby permitted; and
|
|
(j)
|
the
BMEH Reichl Guarantee is hereby
permitted;
|
Transactions
with Affiliates
|
16.3.8
|
save
to the extent permitted by the foregoing sub clauses of this Clause 16.3
(Negative
Covenants), it will not, and will ensure that no Group Company
will:
|
|
(a)
|
sell,
transfer, distribute or pay any money or assets to any Affiliate (other
than sales of US Inventory by BMUK to the USD Co and subsequent sales of
US Inventory by the USD Co back to BMUK immediately prior to BMUK selling
such US Inventory to its customers pursuant to the terms of the Inter
Company Sale Agreement);
|
|
(b)
|
lend
or advance money or assets to any Affiliate; or
|
|
(c)
|
invest
in (by capital contribution or otherwise) or purchase or repurchase any
shares or indebtedness or any assets of any
Affiliate,
|
save
that, if no Default has occurred and is continuing, a Group Company may engage
in transactions relating to the sale and purchase of Inventory (but not, save as
otherwise permitted in this Agreement, involving any sales of Equipment or other
fixed assets) with an Affiliate in the ordinary course of trading in amounts and
upon terms fully disclosed to the Agent in the Management Accounts and no less
favourable to that Group Company than would obtain in a comparable arm’s length
transaction with a third party which is not an Affiliate, provided that Accounts
generated between the Group Companies and their Affiliates shall not account for
more than three per cent (3%) of the total number of Accounts generated by the
Borrowers and/or any other Charging Companies;
Change
of business or operations
|
16.3.9
|
it
will ensure that there is no material change in the nature of its business
or operations or the business or operations of the Group taken as a whole
(whether by a single transaction or a number of related or unrelated
transactions, whether at one time or over a period of time and whether by
disposal, acquisition or
otherwise);
|
Accounting
reference date
|
16.3.10
|
it
will not, without the prior approval of the Agent, change, and will
procure that no other Group Company changes, its accounting reference
date;
|
Subsidiaries
|
16.3.11
|
save
pursuant to any Pre-Approved Acquisition or otherwise with the Agent’s
prior written consent, it will not, directly or indirectly, organise or
acquire any Subsidiary (other than a Dormant Company or those in existence
as at the date of this Agreement and which have been advised to the Agent
in writing);
|
Restricted
Investments
|
16.3.12
|
it
will not, and will ensure that no Group Company will make any Restricted
Investment;
|
Capital
Expenditure
|
16.3.13
|
it
will not, and will ensure that no Group Company will, without the prior
written consent of the Agent, make or incur any Capital Expenditure if,
after giving effect thereto, the aggregate amount of all Capital
Expenditure by the Group in any Financial Year would exceed £1,500,000 (or
the equivalent in any other
currency);
|
Lease
or similar obligations
|
16.3.14
|
save
with the prior written consent of the Agent and save for any finance
leases agreed with the Agent pursuant to Clause 16.3.5 (Indebtedness), it will
not, and will ensure that no Group Company will enter into any lease of
real or personal property as lessee or sub-lessee or enter into any hire
purchase, conditional sale or other similar arrangement if, after giving
effect thereto, the aggregate amount of Rentals payable by the Group
Companies in any Financial Year in respect of such lease and all other
such leases, hire purchase, conditional sale or similar arrangements would
exceed £500,000. The term “Rentals” means all
payments due from the lessee or sub-lessee under a lease or all payments,
liabilities or obligations due from the hirer or other relevant obligor or
debtor (howsoever described) under any hire purchase, conditional sale or
similar arrangement, including, without limitation, rent, service charge,
utility or maintenance costs and insurance premiums together with any VAT
thereon;
|
Capital
Markets
|
16.3.15
|
if
any Borrower, BMEP, BMEH or BMEBV or any other Group Company shall enter
into any Capital Markets Transaction then, subject to the following
provisions of this Clause 16.3.15 (Capital Markets), it
shall apply, or BMEH shall procure that there is applied, thirty per cent
(30%) of the net proceeds of such Capital Markets Transaction to prepay
(subject to payment of any broken funding costs) a commensurate amount of
the then Total Outstandings, provided that, if the average Excess
Availability during the period of six (6) months ending on the date upon
which the Capital Markets Transaction is completed was in excess of
£5,000,000, then the relevant issuer(s) shall not be obliged to apply such
proceeds in prepayment in the manner prescribed by this Clause 16.3.15
(Capital
Markets);
|
Vendor
Financing
|
16.3.16
|
it
will not and will procure that no other Group Company will enter into any
vendor financing programme or similar arrangement for financing the
acquisition of Equipment, any other fixed asset or Inventory (which has
not already been disclosed in its budget for Capital Expenditure and
approved by the Agent), without the prior written consent of the Agent and
without the Agent being provided with such information as it may require
as to the terms and conditions of such vendor financing programme or other
arrangement and assessing the impact, if any, upon the Collateral and/or
the encumbrances created by the
Debenture;
|
USD
Co
|
16.3.17
|
without
prejudice to the terms of any other Finance Document, it will procure that
the USD Co will not (and the USD Co undertakes that it shall not) and, in
relation to Clause 16.3.17(p) only, BMUK undertakes that it will
not:
|
|
(a)
|
except
as provided for in the Inter Company Sale Agreement, sell, assign, convey,
transfer or otherwise dispose of any US Inventory or any other
asset;
|
|
(b)
|
cancel,
terminate, amend, modify or waive any term or condition of the Inter
Company Sale Agreement or any other Finance Document to which it is a
party or any document entered into by it thereunder;
|
|
(c)
|
create
or permit to subsist any encumbrance over all or any of its assets other
than in favour of the Security Trustee;
|
|
(d)
|
amend
its accounting policies, except as may be required by Applicable
GAAP;
|
|
(e)
|
take
any action which may prejudice the validity of the Inter Company Sale
Agreement or any other Finance Document to which it is a
party;
|
|
(f)
|
incur
or permit to subsist any indebtedness of any kind other than pursuant to
the Inter Company Sale Agreement;
|
|
(g)
|
merge
or consolidate with any other company or person;
|
|
(h)
|
except
as contemplated by the Inter Company Sale Agreement, sell, transfer or
otherwise, dispose of or cease to exercise direct control over any part of
its present or future undertaking, assets, rights or revenues whether by
one or a series of transactions related or not;
|
|
(i)
|
make
any loans grant any credit or give any guarantee to or for the benefit of
any person;
|
|
(j)
|
engage
in any business or activity other than those necessary or incidental to
the requirements of the Inter Company Sale Agreement;
|
|
(k)
|
allot,
issue or purchase any shares or alter any of the rights attaching to its
shares currently in issue;
|
|
(l)
|
declare
or pay any dividend or make any other Distribution (whether in cash or in
specie) in respect of its share capital;
|
|
(m)
|
have
any employees;
|
|
(n)
|
make
or agree to make any payment to any person otherwise than in accordance
with the terms of the Inter Company Sale Agreement;
|
|
(o)
|
own,
rent, lease or be in possession of any buildings or
equipment;
|
|
(p)
|
in
relation to BMUK in its capacity as sole shareholder of the USD Co, not
petition or commence proceedings for the administration or winding up (nor
participate in any ex parte proceedings with regard thereto, seek to
enforce a judgment against the USD Co with regard thereto, nor join any
person in the petition or commencement of proceedings for the
administration or winding up) of the USD Co, nor to convene a meeting for
the purposes of considering a resolution or other steps taken by USD Co
for the winding up, dissolution, administration or reorganisation of USD
Co, other than for the purposes of a solvent reorganisation which has been
approved in writing in advance by the Agent;
|
|
(q)
|
permit
to subsist any Subsidiary and it will not form or acquire any
Subsidiary;
|
Material
Contracts and terms of business
|
16.3.18
|
it
will not and will procure that none of the Trading Companies shall,
without the prior written consent of the
Agent:
|
|
(a)
|
amend
in any material respect or terminate any of the Material Contracts or its
terms of business with Account Debtors, for which purpose an amendment
shall be regarded as “material” if it could reasonably be expected to have
a materially adverse effect on the interests of the Lenders or the
Receivables Purchaser; or
|
|
(b)
|
agree
to waive any material or persistent breach of any of the Material
Contracts.
|
Covenants
relating to the Collateral
|
16.4
|
BMUK
(and, in the case of Clause 16.4.16 (USDCo) only, BMEH)
undertakes that:
|
Collateral
Reporting
|
16.4.1
|
it
will provide the Agent, in each case in respect of each Trading Company,
and on a consolidated and consolidating basis, with the following
documents at the following times in form satisfactory to the
Agent:
|
|
(a)
|
on
a weekly basis on each Wednesday based on figures as of the previous
Friday, a Borrowing Base Certificate incorporating, inter alia, a schedule
of credit notes, a summary of collections of accounts receivable, a
schedule of Accounts created since the last such schedule, with effect
from any Inventory Eligibility Date, a report of the Inventory balance (by
location) based on the perpetual inventory reports and such further
details as the Agent may request;
|
|
(b)
|
upon
request, copies of invoices, credit notes, shipping and delivery
documents;
|
|
(c)
|
monthly
ageings of accounts receivable to be delivered no later than the 10th day
of each month in respect of the immediately preceding
month;
|
|
(d)
|
monthly
perpetual inventory reports by category to be delivered no later than the
10th day of each month in respect of the immediately preceding
month;
|
|
(e)
|
on
a monthly basis, a report listing the top ten (10) customers of BMUK
during that month, providing (i) details of the level of sales made to
each such customer; (ii) details of any credit notes issued to each such
customer or any other account adjustments made in respect of such
customer; and (iii) the amount of cash actually received from each such
customer during the relevant month;
|
|
(f)
|
with
effect from any Inventory Eligibility Date, upon request, monthly
perpetual inventory reports with effect from any Inventory Eligibility
Date, a quarterly report of all Inventory based on a physical stock
count;
|
|
(g)
|
monthly
ageings of accounts payable no later than the 10th day of the following
month, together with a specific breakdown (in reasonable detail) of the
monthly ageings of accounts payable to the largest ten supplier creditors
of BMUK and details of the Inventory held by BMUK in respect of such
accounts payable and each such supplier;
|
|
(h)
|
with
effect from any Inventory Eligibility Date, upon request, copies of
purchase orders, invoices, and delivery documents for Inventory and
Equipment acquired by that Trading Company;
|
|
(i)
|
such
other reports as to the Collateral and the Accounts (and each Borrower
hereby authorises the Agent to make enquiries of its customers in this
respect) as the Agent shall request from time to time;
and
|
|
(j)
|
certificates
of an officer of BMUK certifying as to the
foregoing;
|
Inspection
|
16.4.2
|
upon
receiving not more than two business days’ notice from the Agent (or
without notice following a Default which is continuing), it will, and will
procure that each Trading Company will, permit the Agent or any person
authorised by the Agent to have access to its premises to carry out a
periodic inspection of the Collateral, the regularity of such periodic
inspections to be at the Agent’s discretion, but initially to be no more
often than every 60 days;
|
Accounts
|
16.4.3
|
it
will not, and will ensure that no Trading Company will, re-date any
invoice or sale or make sales on extended credit beyond 45 days from its
standard credit terms or modify any Account except with the prior written
consent of the Agent. If BMUK or any other Obligor becomes
aware of any material matter affecting any material Account (including
information regarding any Account Debtor’s creditworthiness and any
information in respect of an Account Debtor against whom a Trading Company
has commenced, or is proposing to commence, legal proceedings), it will
promptly so advise the Agent;
|
Acceptance
of notes or other instruments
|
16.4.4
|
it
will not, and will ensure that no Trading Company will, accept any note or
other instrument (except a cheque or other instrument for the immediate
payment of money) with respect to any Account without the Agent’s written
consent. If the Agent consents to the acceptance of any such
note or other instrument, it shall be considered as evidence of the
Account and not payment thereof, and BMUK will promptly deliver such note
or instrument to the Agent appropriately endorsed. Regardless
of the form of presentment, demand, notice of dishonour, protest and
notice of protest with respect thereto, BMUK will remain liable thereon
until such note or instrument is paid in
full;
|
Disputes
with Account Debtors
|
16.4.5
|
it
will notify the Agent promptly of all disputes and claims with Account
Debtors in excess of £50,000 and settle or adjust them, or ensure that the
relevant Trading Company settles or adjusts them, at no expense
to the Lenders, but no discount, credit or allowance shall be granted to
any Account Debtor without the Agent’s consent, except for discounts,
credits and allowances made or given in the ordinary course of trading
when no Event of Default exists hereunder. BMUK shall send, or
procure that there is sent to, the Agent a copy of each credit note in
excess of £1,000,000 as soon as issued and a list of all credit notes in
excess of £750,000 on a weekly basis, with copies of any such credit notes
to be supplied to the Agent at the Agent’s
request;
|
Returns
of Inventory
|
16.4.6
|
if
after the Inventory Eligibility Date, an Account Debtor returns any
Inventory to any Borrower or any Trading Company when no Event of Default
exists, then that Borrower shall promptly determine the reason for such
return and shall issue, or procure that the relevant Trading Company shall
issue, a credit note to the Account Debtor in the appropriate
amount. Each Borrower shall immediately report to the Agent any
return involving an amount in excess of £1,000,000. Each such
report shall indicate the reasons for the returns and the locations and
condition of the returned Inventory. Whenever any Inventory is
returned, the related Account shall be deemed ineligible, and the
Available Revolving Facility Amount shall be adjusted
accordingly;
|
Inventory
|
16.4.7
|
after
the Inventory Eligibility Date, it will not, and will ensure that no
Trading Company will, without prior written notice to the Agent, acquire
or accept any Inventory on consignment or
approval;
|
Inventory
- Reporting System
|
16.4.8
|
after
the Inventory Eligibility Date, it will maintain, and will ensure that
each Trading Company maintains, a perpetual inventory reporting system at
all times; it will conduct a physical count of the Inventory of all the
Trading Companies at least once per Financial Year and after the
occurrence of an Event of Default at such other times as the Agent
requests, and shall promptly, upon completion, supply the Agent with a
copy of such count accompanied by a report of the value of such Inventory
(valued at the lower of cost, on a FIFO basis, or market value); no
Borrower will, and will ensure that no Trading Company will, without the
Agent’s prior written consent, sell any Inventory on a sale or return,
sale on approval, consignment or other repurchase or return
basis;
|
Condition
of the Equipment
|
16.4.9
|
it
will keep and maintain, and will ensure that each Trading Company keeps
and maintains, its Equipment in good operating condition and repair
(ordinary wear and tear excepted) and will make all necessary
replacements;
|
Additions
to the Equipment
|
16.4.10
|
it
will include information regarding any material additions to or deletions
from any Equipment (which, in the case of any additions, are to be within
the agreed Capital Expenditure budget) within the Management Accounts
required to be delivered pursuant to Clause 15.2.2 (Management
Accounts);
|
Disposal
of the Equipment
|
16.4.11
|
it
will not, and will ensure that no Trading Company will, without the
Agent’s prior written consent, sell, lease as a lessor, or otherwise
dispose of any Equipment provided that obsolete or unusable Equipment
having an orderly liquidation value no greater than £500,000 individually
and £1,500,000 in the aggregate in any Financial Year, may be disposed of
without the Agent’s consent, subject to the conditions set forth
below. If any of the Equipment is sold, transferred or
otherwise disposed of with the Agent’s prior written consent or as
otherwise permitted hereby then:
|
|
(a)
|
if
such sale, transfer or disposal is effected without replacement of such
Equipment, or such Equipment is replaced by leased Equipment, or by
Equipment purchased subject to a Permitted Encumbrance, BMUK will, or will
procure that the relevant Trading Company will, deliver all of the cash
proceeds of any such sale, transfer or disposal to the Agent, which
proceeds shall be applied in or towards prepayment of all sums due from
the Borrowers hereunder; or
|
|
(b)
|
if such sale, transfer or
disposal is made in connection with the purchase of replacement Equipment
(other than subject to a Permitted Encumbrance), BMUK will use the
proceeds of such sale, transfer or disposal to finance the purchase of
such replacement Equipment which shall be free and clear of all liens,
claims and encumbrances, except for the Security Interest and other
Permitted Encumbrances and shall deliver to the Agent written evidence of
the use of the proceeds for such
purchase;
|
|
16.4.12
|
[intentionally
omitted];
|
|
16.4.13
|
[intentionally
omitted];
|
St.
Crispin Mortgage
|
16.4.14
|
it
will not agree to or complete any refinancing of the indebtedness relating
to the St. Crispin Property unless:
|
|
(a)
|
the
Agent shall be afforded a reasonable opportunity (subject to any
applicable confidentiality constraints) to review the terms and conditions
of such refinancing; and
|
|
(b)
|
BMUK
shall procure that the St. Crispin Mortgagee shall enter into an
intercreditor deed or priority arrangement mutually acceptable to the
relevant St. Crispin Mortgagee, BMUK and the
Agent;
|
St.
Crispin Property Guarantee
|
16.4.15
|
it
will not give and will procure that no other Group Company shall provide
any guarantee, indemnity or other assurance in respect of the obligations
of BMUK or any relevant Affiliate to the St. Crispin Mortgagee unless the
obligations of each relevant Group Company and the rights and recourse of
the St. Crispin Mortgagee are fully subordinated to the rights of the
Beneficiaries under the Finance
Documents;
|
USD
Co
|
16.4.16
|
it
will (a) procure that no Group Company or member of the Restricted Group
will take any action or omit to take any action which has the effect of
the USD Co becoming liable for any amount or incurring any liability or
expense to any person save for any action to be taken, or permitted to be
taken, under or pursuant to the Inter Company Sale Agreement and (b) pay
to the USD Co an amount equal to any amount for which the USD Co becomes
liable notwithstanding Clause 16.4.16(a) immediately upon the USD Co
becoming so liable or to make such arrangements as are acceptable to the
Agent for the immediate discharge of such
liability.
|
|
17.
|
DEFAULT
|
Events
of Default
|
17.1
|
Each
of the events set out below is an Event of
Default:
|
Non-payment
|
17.1.1
|
any
Obligor or any IDF Company does not pay any sum due from it under any
Finance Document at the time and in the manner specified in the relevant
Finance Document, or where the non-payment results solely from technical
difficulties relating to the transfer of that amount from the relevant
Obligor or IDF Company to the Agent or, as the case may be, the
Receivables Purchaser, within five (5) days of the due
date;
|
Breach
of representation or warranty
|
17.1.2
|
any
representation or warranty made or deemed to be repeated by any Obligor or
any IDF Company in any Finance Document or in any document delivered
pursuant to it is not complied with or is or proves to have been incorrect
or misleading in any material respect when made or deemed to be
repeated;
|
Breach
of undertaking
|
17.1.3
|
any
Borrower fails duly to perform or comply with any obligation expressed to
be assumed by it in Clause 2.2 (Purpose), 15 (Financial Condition),
16.2.14 (Excess
Availability), 16.2.8 (Hedging), 16.3 (Negative Covenants) or
16.4 (Covenants relating
to the Collateral) or any Obligor or any IDF Company fails duly to
perform any obligation in, or comply with any of the terms of, any of the
Security Documents;
|
Breach
of other obligation
|
17.1.4
|
any
Obligor or any IDF Company fails duly to perform or comply with any other
obligation expressed to be assumed by it in any of the Finance Documents
and such failure (if capable of remedy) is not remedied within ten
business days after the earlier of (i) the date upon which any such
Obligor or, as the case may be, IDF Company becomes aware of such default
or (ii) the date upon which the Agent or, as the case may be, Receivables
Purchaser has notified such Obligor or, as the case may be, IDF Company of
such default or if any such Finance Document shall terminate (other than
in accordance with its terms or with the written consent of the Agent) or
become void or unenforceable;
|
Cross-default
|
17.1.5
|
any
indebtedness (other than indebtedness to any one or more trade creditors
arising in the ordinary course of business which is not overdue by more
than 60 days and in respect of which the relevant trade creditor has not
sought repayment or otherwise taken steps to procure or enforce repayment
or in respect of which repayment has been sought and the relevant Obligor
or, as the case may be, IDF Company is contesting in good faith by
appropriate means its liability to make payment thereof) of any Obligor or
any IDF Company of an amount in excess of £1,000,000 (or its equivalent in
any other currency) is not paid when due or is declared to be or otherwise
becomes due and payable prior to its specified maturity or any creditor of
any Obligor or any IDF Company becomes entitled to declare any such
indebtedness due and payable prior to its specified
maturity;
|
Insolvency
|
17.1.6
|
any
Obligor or Group Company is unable to pay its debts as they fall due (or
is deemed by law or by a court to be unable to pay its debts), stops,
suspends or threatens to stop or suspend payment of all or any part of its
indebtedness or commences negotiations with any one or more of its
creditors with a view to the general readjustment or re-scheduling of all
or any part of its indebtedness or makes a general assignment for the
benefit of, or composition with, its creditors or a moratorium is agreed
or declared in respect of, or affecting, all or any part of its
indebtedness;
|
Enforcement
proceedings
|
17.1.7
|
a
distress, attachment, execution, diligence or other legal process is
levied, enforced or sued out on or against all or any part of the assets
of any Obligor or Group Company and is not discharged within five business
days;
|
Insolvency
proceedings
|
17.1.8
|
any
Obligor or Group Company takes any corporate action or other steps are
taken or legal or other proceedings are started
for:
|
|
(a)
|
its
winding-up, administration, dissolution, receivership or re-organisation
other than (i) a winding-up for the purposes of a bona fide, solvent
scheme of reconstruction or amalgamation previously approved in writing by
the Agent or (ii) a petition for winding up which a Borrower has satisfied
the Agent is vexatious, groundless or an abuse of process and in relation
to which the relevant Group Company has taken steps within seven days of
the petition to restrain the petitioner from advertising the petition and
which in any event has been discharged within 30 days of the petition;
or
|
|
(b)
|
the
appointment of a receiver, administrator, administrative receiver, trustee
or similar officer of it or of any or all of its
assets;
|
Analogous
proceedings
|
17.1.9
|
anything
analogous to or having a substantially similar effect to any of the events
specified in Clauses 17.1.6 (Insolvency), 17.1.7
(Enforcement
proceedings) or 17.1.8 (Insolvency proceedings)
shall occur under the laws of any applicable
jurisdiction;
|
Encumbrance
enforceable
|
17.1.10
|
any
encumbrance on or over the assets of any Obligor or Group Company securing
indebtedness in excess of £500,000 becomes enforceable and any step
(including the taking of possession or the appointment of a receiver,
manager or similar person) is taken to enforce that
encumbrance;
|
Expropriation
|
17.1.11
|
all
or any material part of the shares or assets of any Obligor is seized,
compulsorily acquired, nationalised or otherwise expropriated or custody
or control of the same is assumed by any public authority or any court of
competent jurisdiction at the instance of any public authority, except
where contested in good faith by proper proceedings diligently pursued
where a stay of enforcement is in
effect;
|
Termination
of any guarantee
|
17.1.12
|
any
guarantee of any amounts due and payable under any of the Finance
Documents shall be terminated, revoked or declared void or
invalid;
|
Judgments
|
17.1.13
|
one
or more final judgments for the payment of money aggregating in excess of
£50,000 (whether or not covered by insurance) shall be rendered against
any Obligor and such Obligor shall fail to discharge the same within
thirty (30) days from the date of entry thereof or to appeal
therefrom;
|
Loss
of Collateral
|
17.1.14
|
any
loss, theft, damage or destruction of any item or items of the Collateral
occurs which in the opinion of the Agent (i) could materially and
adversely affect the operation of any Borrower’s or any Obligor’s business
or the business of the Group (taken as a whole) or (ii) is material in
amount and is not adequately covered by
insurance;
|
Cessation
of business
|
17.1.15
|
any
Obligor ceases to carry on the business it carries on today or enters into
any unrelated business;
|
Illegality
|
17.1.16
|
it
is or will become unlawful for any Obligor to perform or comply with any
of its obligations under any Relevant Agreement, or any such obligation is
not or ceases to be legal, valid and
binding;
|
Repudiation
|
17.1.17
|
any
Obligor repudiates, or does or causes to be done anything evidencing an
intention to repudiate any Relevant
Agreement;
|
Loss
of a material number of customers
|
17.1.18
|
if,
on receipt by the Agent of a Quarterly Sales Certificate in accordance
with Clause 15.2.7 (Quarterly Sales
Certificates), that Quarterly Sales Certificate demonstrates that
the result of the formula specified below is less than
0.75.
|
|
A – C
|
|
B
|
Where:
“A” is
the Total Year 1 Sales specified in that Quarterly Sales
Certificate;
“B” is
the Total Year 2 Sales specified in that Quarterly Sales Certificate;
and
“C” is
the Total Lost Customer Sales specified in that Quarterly Sales
Certificate
Expressions
used in this Clause 17.1.18 (Loss of a material number of
customers) have the meanings given to them in Clause 15.2.7 (Quarterly Sales
Certificates);
Loss
of a material number of suppliers
|
17.1.19
|
if,
on receipt by the Agent of a Quarterly Supply Certificate in accordance
with Clause 15.2.8 (Quarterly Supply
Certificates), that Quarterly Supply Certificate demonstrates that
the result of the formula specified below is less than
0.65.
|
|
X – Z
|
|
Y
|
Where:
“X” is
the Total Year 1 Supply Costs specified in that Quarterly Supply
Certificate;
“Y” is
the Total Year 2 Supply Costs specified in that Quarterly Supply Certificate;
and
“Z” is
the Total Reduced Supply Costs specified in that Quarterly Supply
Certificate.
Expressions
used in this Clause 17.1.19 (Loss of a material number of
suppliers) have the meanings given to them in Clause 15.2.8 (Quarterly Supply
Certificates);
Change
of control
|
17.1.20
|
any
person or group of connected persons which does not have control at the
date of this Agreement acquires control of BMEH, BMEP, BMEBV or any
Obligor and for this purpose “connected person” shall be construed in
accordance with section 839 Income and Corporation Taxes Act
1988;
|
Invoice
Discounting Agreements
|
17.1.21
|
any
Event of Default as defined in and referred to in the Accounts Transfer
Conditions (other than an Event of Default set out in Condition 17.1(i)
(Encumbrance
Enforceable) or Condition 17.1(l) (Judgments) of the
Accounts Transfer Conditions) shall
occur;
|
Action
by any IBM Entity pursuant to the BMEH IBM Guarantees
|
17.1.22
|
any
demand, notice of demand for payment and/or fulfilment of obligations is
served on BMEH under any BMEH IBM Guarantee or any other action or claim
is threatened or made or proceedings are commenced against BMEH under or
pursuant to any BMEH IBM Guarantee;
|
Action
by Mr Klaus Reichl pursuant to the BMEH Reichl Guarantee
|
17.1.23
|
any
demand, notice of demand for payment and/or fulfilment of obligations is
served on BMEH under the BMEH Reichl Guarantee or any other action or
claim is threatened or made or proceedings are commenced against BMEH
under or pursuant to the BMEH Reichl
Guarantee.
|
Acceleration
|
17.2
|
If
at any time and for any reason (and whether within or beyond the control
of any party to any of the Finance Documents) any Event of Default has
occurred, then at any time thereafter, whilst such Event of Default is
continuing, the Agent may, and shall, if so instructed by the Majority
Lenders, by written notice to BMUK do one or more of the following at any
time or times and in any order:
|
|
17.2.1
|
reduce
or cancel the Available Facility or any one or more of its elements or
reduce or cancel the Available Revolving Facility
Amount;
|
|
17.2.2
|
restrict
the amount of or refuse to make available any Revolving Loan or Swingline
Loan or to issue any Letter of Credit or
Guarantee;
|
|
17.2.3
|
terminate
this Agreement and the Revolving Facility made or to be made available
hereunder and cancel any Bank
Products;
|
|
17.2.4
|
declare
any Revolving Loan or any Swingline Loan, all unpaid accrued interest or
fees and any other sum then payable under this Agreement to be due and
payable on demand or on such date as it may specify in such notice
whereupon all such moneys shall become so due and payable on demand or on
such date (as the case may be);
|
|
17.2.5
|
require
that the Borrower deposit with the Security Trustee with respect to any
Letter of Credit or Guarantee then outstanding and/or with respect to any
Bank Product Debt, a Supporting Letter of Credit or cash, in the same
manner as contemplated in Clause 6.14 (Supporting Letter of Credit;
Cash Collateral);
|
|
17.2.6
|
declare
the Revolving Facility to be cancelled, whereupon it shall be so cancelled
and the Commitment of each Lender shall immediately be reduced to
zero;
|
|
17.2.7
|
enforce
any or all of its rights or require that the Security Trustee enforce any
or all of its rights under any of the Finance Documents or under
applicable law.
|
On
Demand Facility
|
17.3
|
If,
pursuant to Clause 17.2.4, the Agent declares any of the Loans (or any
other moneys which may become payable hereunder) to be due and payable on
demand of the Agent, then, at any time thereafter, the Agent may by
written notice to BMUK call for repayment of any such Loans (and any other
such moneys) on such date as it may specify in such notice (whereupon the
same shall become due and payable on such date together with all unpaid
accrued interest, fees and any other sums then owed by the Borrowers
hereunder) or withdraw its declaration with effect from such date as it
may specify in such notice.
|
Letter
of Credit and Guarantee Fee following Event of Default
|
17.4
|
From
the date of the occurrence of any Event of Default until such Event of
Default is remedied to the satisfaction of the Agent, or until all sums
payable hereunder have been satisfied or discharged in full and none of
the Lenders is under any contingent liability hereunder or under any
Letter of Credit or Guarantee, the Letter of Credit and Guarantee Fee
shall be calculated at the rate per annum equal to an additional 2% per
annum to that referred to in Clause 22.5 (Letter of Credit and Guarantee
Fee) on the maximum face value of any Letter of Credit or maximum
contingent liability of the Issuer under each Guarantee then
outstanding.
|
Termination
Fee
|
17.5
|
If
the Agent terminates this Agreement upon an Event of Default, BMUK shall
pay the Agent for the account of the Lenders in their Participating
Proportions, immediately upon termination, a fee equal to the early
termination fee that would have been payable under Clause 29 (Term and Termination)
if this Agreement had been terminated on that date pursuant to BMUK’s
election.
|
|
18.
|
DEFAULT
INTEREST
|
Interest
on Unpaid Sums
|
18.1
|
If
any relevant Obligor does not pay any sum payable by it under this
Agreement on its due date in accordance with the provisions of Clause 20
(Payments) or if
any sum due and payable by any relevant Obligor under any judgment of any
court in connection with this Agreement is not paid on the date of such
judgment, it shall pay interest on the balance for the time being
outstanding (such balance being referred to in this Agreement as the
“unpaid sum”) for the period beginning on such due date or, as the case
may be, the date of such judgment, in accordance with the provisions of
this Clause 18 (Interest
on Unpaid Sums).
|
Default
Interest Periods
|
18.2
|
Interest
under this Clause 18 (Default Interest) shall
be calculated by reference to successive periods, each of which (other
than the first, which shall begin on the due date for payment or, as the
case may be, the date of judgment as referred to in Clause 18.1 (Interest on Unpaid
Sums)) shall begin on the last day of the preceding
period. Each such period shall be of such duration as the Agent
may select.
|
Default
Interest Rates
|
18.3
|
The
rate of interest applicable to an unpaid sum from time to time during each
period relating to that unpaid sum shall be the rate per annum which is
the sum of (i) two per cent (2%) (ii) the Applicable Margin (iii) LIBOR
relative to such period (or, in respect of any Swingline Loans or
Alternative Rate Revolving Loans, the Alternative Rate for the month
during which such interest accrues) and (iv) the Mandatory Cost, if any,
applicable to that unpaid sum provided
that:
|
|
18.3.1
|
if,
at or about 11.00 a.m. on the Quotation Date in respect of such unpaid
sum, it is not possible to determine LIBOR in accordance with the
definition of LIBOR there shall be substituted for LIBOR the rate
determined by the Agent (and notified to BMUK) to be the weighted average
of the rates (as notified to the Agent by the Lenders prior to the first
day of the relevant Interest Period) which represent the cost to each
Lender of funding its portion of such unpaid sum during such period from
whatever sources and in whatever manner it may select;
and
|
|
18.3.2
|
if
the unpaid sum is of the principal amount of a LIBOR Revolving Loan which
became due and payable other than on the last day of any Interest Period
relating to it, the first default period applicable to that unpaid sum
shall be of a duration equal to the unexpired portion of that Interest
Period and the rate of interest applicable to it during that Interest
Period shall be the rate per annum equal to the sum of two per cent (2%)
and the rate applicable to it immediately before it became
due.
|
Payment
and Compounding of Default Interest
|
18.4
|
Any
interest accrued due under Clause 18.3 (Default Interest Rates)
in respect of an unpaid sum shall be due and payable and shall be paid by
the relevant Obligor at the end of the period by reference to which it is
calculated or on such other date as the Agent may specify by written
notice to BMUK. If not paid on the due date, the interest shall
be added to and form part of the unpaid sum on which interest shall accrue
and be payable in accordance with the provisions of this Clause 18 (Default
Interest).
|
|
19.
|
INDEMNITIES
|
General
Indemnities
|
19.1
|
BMUK
shall (or will procure that an Obligor will) indemnify on demand each of
the Beneficiaries against any funding or other cost, loss (including any
foreign exchange contract loss incurred by any of them), expense or
liability which it may sustain or incur, directly or indirectly, as a
result of:
|
|
19.1.1
|
a
Loan not being made by reason of any of the provisions of Clause 6.1.1
(General Conditions of
Utilisation) or any of the conditions set out in Schedule 2 (Conditions Precedent)
not being satisfied or any Borrower cancelling or purporting to cancel a
Utilisation Notice; or
|
|
19.1.2
|
the
occurrence of any Default; or
|
|
19.1.3
|
the
receipt or recovery by it (or the Agent on its behalf) of all or any part
of its share of any Loan or unpaid sum other than on the last day of any
Interest Period relating to that Loan or unpaid
sum.
|
Break
Costs
|
19.2
|
BMUK’s
liability under Clause 19.1 (General Indemnities)
shall include the amount (if any) by which (i) the additional interest
which would have been payable under this Agreement on the amount so
received or recovered had it been received or recovered by the relevant
party on the last day of the relevant Interest Period exceeds (ii) the
amount of interest which, in the opinion of the Beneficiary concerned,
would have been payable to such Beneficiary on the last day of that
Interest Period in respect of a deposit denominated in the currency of the
Loan or unpaid sum in question equal to the amount so received or
recovered placed by it with a prime bank in London for a period starting
on the second business day following the date of such receipt or recovery
and ending on the last day of that Interest Period. For the
avoidance of doubt (but without prejudice to their obligations to pay
break costs), neither BMUK nor any other relevant Obligor shall be liable
to compensate any Beneficiary for any loss of Applicable Margin if any
amount is repaid, prepaid or cancelled by virtue of the operation of
Clauses 9.3 (Prepayment
and Cancellation of Individual Lenders) or 12.1.2.(Consequences of
Illegality)
|
Currency
Indemnity
|
19.3
|
Any
amount received or recovered by any Beneficiary in respect of any sum
expressed to be due to it from any Obligor under any Finance Document in a
currency other than the currency (the “contractual currency”)
in which such sum is so expressed to be due (whether as a result of, or of
the enforcement of, any judgment or order of a court or tribunal of any
jurisdiction, the winding-up of such Obligor or otherwise) shall only
constitute a discharge to such Obligor to the extent of the amount of the
contractual currency that the recipient is able, in accordance with its
usual practice, to purchase with the amount of the currency so received or
recovered on the date of receipt or recovery (or, if later, the first date
on which such purchase is practicable). If the amount of the
contractual currency so purchased is less than the amount of the
contractual currency so expressed to be due, such Obligor shall indemnify
the recipient against any loss sustained by it as a result, including the
cost of making any such purchase.
|
Indemnity
to the Agent
|
19.4
|
BMUK
shall (or shall procure that an Obligor shall) promptly indemnify the
Agent against any cost, loss or liability incurred by the Agent (other
than any loss occasioned by the gross negligence or wilful misconduct of
the Agent) as a result of:
|
|
19.4.1
|
investigating
any event which it reasonably believes is a Default;
or
|
|
19.4.2
|
entering
into or performing any foreign exchange contract for the purposes of any
Loan being made in a Foreign
Currency; or
|
|
19.4.3
|
acting
or relying on any notice, request or instruction which it believes to be
genuine, correct and appropriately
authorised.
|
Nature
of Indemnities
|
19.5
|
Each
of the indemnities in this Clause 19 (Indemnities)
constitutes a separate and independent obligation from the other
obligations in this Agreement, shall give rise to a separate and
independent cause of action, shall apply irrespective of any time or
indulgence granted by the Agent or any Lender and shall continue in full
force and effect notwithstanding any order, judgment, claim or proof for a
liquidated amount in respect of any sum due under this Agreement or any
other judgment or order.
|
|
20.
|
CURRENCY
OF ACCOUNT AND PAYMENTS
|
Currency
of Account and Payment
|
20.1
|
Sterling
is the currency of account and payment for all sums at any time due from
the Borrower under or in connection with any of the Finance Documents
(including damages) provided that (i) each repayment of a Loan or a part
thereof shall be made in the currency in which such Loan is denominated at
the time of that repayment; (ii) each payment of interest shall
be made in the currency in which the sum in respect of which such interest
is payable is denominated; (iii) each payment in respect of
costs and expenses shall be made in the currency in which the same were
incurred; and (iv) any amount expected to be payable in a
currency other than sterling shall be paid in that other
currency.
|
Payments
by the Borrower and the Lenders
|
20.2
|
On
each date on which this Agreement requires an amount to be paid by any
Obligor or any of the Lenders to the Agent, that Obligor or, as the case
may be, such Lender shall make the same available to the
Agent:
|
|
20.2.1
|
where
such amount is denominated in sterling, by payment in sterling and in same
day funds (or in such other funds as may for the time being be customary
in London for the settlement in London of banking transactions in
sterling) to the Agent at Bank of America, N.A., 5 Canada Square, London,
E14 5AQ, sort code 16-50-50, Attn: Loans Service (or as the
Agent may otherwise specify for this purpose);
or
|
|
20.2.2
|
where
such amount is denominated in a Foreign Currency (other than euro), by
payment in such Foreign Currency and in immediately available, freely
transferable, cleared funds to such account with such bank in the
principal financial centre of the country of such Foreign Currency as the
Agent may specify for this purpose;
or
|
|
20.2.3
|
where
such amount is denominated in euro, such sum shall be made available to
the Agent by payment in euro and in immediately available, freely
transferable, cleared funds to such account with such bank in such
principal financial centre in such participating member state of the
European Union or in London as the Agent shall from time to time nominate
for this purpose.
|
Payments
by the Agent
|
20.3
|
Save
as otherwise provided herein, each payment received by the Agent for the
account of another person pursuant to Clause 20.2 (Payments by the Borrowers and
the Lenders) shall be made available by the Agent (subject, without
any liability therefor, for delays outside the Agent’s control in
crediting cleared funds) to such other person (in the case of a Lender,
for the account of its Facility Office) for value the same day (provided
that such payment has been received by the Agent by no later than 12.00
noon) by transfer to such account of such person with such bank in the
principal financial centre of the country of the currency of such payment
as such person shall have previously notified to the Agent or (in the case
of a Borrower) in the agreed currency denomination to the account of that
Borrower specified in the Utilisation
Notice.
|
Payments
due on non-business days
|
20.4
|
If
any payment of principal, interest, premium or other sum to be made
hereunder becomes due and payable on a day other than a business day, the
due date of payment shall be extended to the next succeeding business day
and interest thereon shall be payable at the applicable interest rate
during such extension (unless that next succeeding business day falls in
the following calendar month in which case the due date of payment shall
be the immediately preceding business
day).
|
Impracticable
to make payments
|
20.5
|
If,
at any time, it shall become impracticable (by reason of any action of any
governmental authority or any change in law, exchange control regulations
or any similar event) for any Obligor to make any payments hereunder in
the manner specified in Clause 20.2 (Payments by the Borrowers and
the Lenders), then that Obligor may agree with each or any of the
Lenders to make alternative arrangements for the payment direct to such
Lender of amounts due to such Lender hereunder provided that, in the
absence of any such agreement with any Lender, that Obligor shall be
obliged to make all payments due to such Lender in the manner specified in
this Agreement. Upon reaching such agreement the relevant
Obligor and such Lender shall immediately notify the Agent and shall
thereafter promptly notify the Agent of all payments made direct to such
Lender.
|
No
Set-Off or Counterclaim
|
20.6
|
All
payments made by an Obligor under this Agreement shall be made free and
clear of and without any deduction for or on account of any set-off or
counterclaim.
|
Refunding
of Payments
|
20.7
|
Where
a sum is to be paid to the Agent under this Agreement for account of
another person, the Agent shall not be obliged to (but may) make the same
available to that other person until it has been able to establish to its
satisfaction that it has actually received that sum. If and to
the extent that it does so but it proves to be the case that it had not
actually received the sum which it paid out, then, the person to whom the
Agent made that sum available shall on request refund it to the Agent and
that person or (at the option of the Agent) the person by whom that sum
should have been made available shall on request pay to the Agent the
amount (as certified by the Agent) which will indemnify the Agent against
any funding or other cost, loss, expense or liability which it may have
sustained or incurred as a result of paying out that sum before receiving
it.
|
Debit
to Loan Account
|
20.8
|
The
Agent is hereby authorised to debit all Swingline Loans and all
Alternative Rate Revolving Loans and interest thereon to a loan account or
accounts denominated in the currency denomination of each such Loan
maintained with the Agent. All fees, commissions, costs,
expenses and other charges under or pursuant to the Finance Documents and
all payments made and out-of-pocket expenses incurred by the Agent and/or
the Lenders pursuant to the Finance Documents will be debited to such loan
account(s) as of the date due from the relevant Borrower or the date paid
or incurred by the Agent and/or the Lenders, as the case may
be.
|
Change
of Currency to Euro
|
20.9
|
With
effect from the date (if any) upon which sterling is converted into euro
in accordance with EMU legislation:
|
Redenomination
|
20.9.1
|
each
obligation under this Agreement of any party to this Agreement which, up
to such time, had been denominated in sterling shall be redenominated into
euro in accordance with EMU legislation provided that, if and to the
extent that any EMU legislation provides that an amount denominated either
in euro or in sterling as a national currency unit of the euro can be paid
by the debtor either in euro or in that national currency unit, each party
to this Agreement shall be entitled to pay or repay any such amount either
in euro or in sterling as such national currency
unit;
|
Rounding
|
20.9.2
|
without
prejudice and in addition to any method of conversion or rounding
prescribed by any EMU legislation and without prejudice to the respective
liabilities for indebtedness of any Obligor to the Beneficiaries and the
Beneficiaries to any Obligor under or pursuant to this Agreement each
reference in this Agreement to a minimum amount (or an integral multiple
thereof) in sterling to be paid to or by the Agent and/or the Lenders
shall be replaced by a reference to such reasonably comparable and
convenient amount (or an integral multiple thereof) in euro as the Agent
(after consultation with BMUK but without prejudice to its rights under
this Clause 20.9.2 (Rounding)) may from
time to time specify; and
|
Consequential
changes
|
20.9.3
|
each
provision of this Agreement shall be subject to such reasonable changes of
construction as the Agent may (after consultation with BMUK but without
prejudice to its rights under this Clause 20.9.3 (Consequential
changes))from time to time specify to be necessary or appropriate
to reflect the changeover of sterling to
euro.
|
Order
of Distribution
|
20.10
|
If
the amount received by the Agent from an Obligor (or, as the case may be,
from the Security Trustee pursuant to the exercise by the Security Trustee
of any rights or powers it may have pursuant to the Security Documents) on
any date is less than the total sum due under this Agreement on that date,
the Agent shall apply that amount in or towards payment of the following
sums in the following order:
|
|
20.10.1
|
first,
in or towards payment of any sum then due to the Agent in its capacity as
such;
|
|
20.10.2
|
secondly,
in or towards payment of any sum then due to the Arranger in its capacity
as such;
|
|
20.10.3
|
thirdly,
in or towards payment pro rata of any sums (other than principal of or
interest on the Loans) then due to the Lenders (or any of
them);
|
|
20.10.4
|
fourthly,
in or towards payment pro rata of any interest then
due;
|
|
20.10.5
|
fifthly,
in or towards payment pro rata of any principal then
due;
|
|
20.10.6
|
sixthly,
in or towards payment to BofA in respect of any Bank Product Debt then due
but unpaid,
|
and any
such applications shall be made notwithstanding any purported appropriation to
the contrary by any person.
|
21.
|
SET-OFF
|
Each
Obligor authorises any other party to this Agreement at any time after an Event
of Default has occurred and is continuing and without prior notice to that
Obligor to apply any credit balance (whether or not then due) to which that
Obligor is at any time beneficially entitled on any account at any office of
that party in or towards satisfaction of any sum then due from it to that party
under this Agreement and unpaid and for this purpose to purchase with the moneys
standing to the credit of any such account such other currencies as may be
necessary to effect such application (but so that nothing in this Clause 21
(Set-Off) shall be
effective to create a charge). No party shall be obliged to exercise
any of its rights under this clause which shall be without prejudice to and in
addition to any right of set-off, combination of accounts, lien or other right
to which it is at any time otherwise entitled (whether by operation of law,
contract or otherwise).
|
22.
|
FEES
|
Unused
Line Fee
|
22.1
|
For
every month during the term of this Agreement, BMUK shall (or shall
procure that another Obligor shall) pay the Agent for the account of the
Lenders a fee (the “Unused Line Fee”) in an
amount equal to 0.25% per annum, multiplied by the average daily amount by
which the Total Commitments (provided that for the purposes of this Clause
22.1 (Unused Line
Fee) and calculating the Unused Line Fee only, the Total
Commitments shall be deemed to be £60,000,000 until such time as BMUK has
served a notice in accordance with Clause 2.7 (Increase of Maximum Revolving
Credit Line) and the period referred to in such Clause 2.7 (Increase of Maximum Revolving
Credit Line) has expired after which time they shall be
£76,000,000) exceed the sum of the sterling equivalent of (i) the average
daily outstanding amount of the Revolving Loans and Swingline Loans during
such month (with the outstanding amount of Revolving Loans and Swingline
Loans calculated for this purpose by applying payments immediately upon
receipt), (ii) the maximum contingent liability of the Issuer under each
Letter of Credit and Guarantee or, if any demand is made under any Letter
of Credit or Guarantee, the average daily amount outstanding under any
account to which any such payment made thereunder is debited and (iii) the
Invoice Discounting Facility Exposure. Such fee shall be
calculated on the basis of a year of three hundred sixty five (365) days
and actual days elapsed, and shall be payable to the Agent on the first
day of each month following the Closing Date and on the termination of
this Agreement, in each case with respect to the prior month or portion
thereof.
|
Arrangement
Fee
|
22.2
|
BMUK
shall pay to the Arranger for its own account an arrangement fee in the
amount and at the times agreed in a Fee Letter dated on or around the
Closing Date from the Arranger to
BMUK.
|
Collateral
Management Fee
|
22.3
|
BMUK
will pay the Agent for its own account a collateral management fee (the
“Collateral Management
Fee”) of an amount set out in the Fee Letter (2008). The total
amount of such fee shall be deemed to have accrued due and become payable
in full on the date referred to in the Fee Letter (2008) but the Agent
agrees, subject to Clause 29.3 (Effect of Termination),
that such fee shall be paid in equal instalments at the times specified in
the Fee Letter (2008). BMUK will also pay to the Agent for its own account
such other fees as are referred to in the Fee Letter (2008) in the amounts
and at the times referred to in it.
|
Audit
Fee
|
22.4
|
BMUK
shall pay to the Agent for its own account an audit fee of £500 per day
per field examiner charge (the “Audit Fee”) in respect
of the periodic inspection of the Collateral required by the Agent in
accordance with this Agreement and shall also pay on demand all out of
pocket expenses incurred by the Agent in connection with any such
inspection.
|
Letter
of Credit and Guarantee Fee
|
22.5
|
BMUK
agrees to pay (or procure that the relevant Borrower shall pay) to the
Agent for the account of the Issuer a fee (the “Letter of Credit and Guarantee
Fee”) equal to 2.50% per annum (prior to the receipt of a Limit
Reduction Notice) or 2.00% per annum (after receipt of a Limit Reduction
Notice) of the face amount of each Letter of Credit or maximum contingent
liability under each Guarantee issued by the Issuer, plus all
out-of-pocket costs, fees and expenses incurred by the Issuer (other than
where such fees, costs or expenses are indemnified pursuant to Clause
6.12.2 (Indemnity)) in
connection with the application for, issue of, or amendment to any Letter
of Credit or Guarantee, such Letter of Credit and Guarantee Fee to be
calculated on the basis of a year of 365 days and actual days elapsed and
to be payable monthly in arrears on the first day of each month following
any month in which a Letter of Credit or Guarantee was issued and/or in
which a Letter of Credit or Guarantee remains outstanding and, to the
extent that it has been calculated by reference to a Letter of Credit or
Guarantee denominated other than in sterling, shall be satisfied by
payment of the sterling equivalent of the amount so
calculated. Any out-of-pocket costs, fees and expenses incurred
by the Issuer in connection with the application for, issue of, or
amendment to any Letter of Credit or Guarantee shall be payable at the
time of such application, issue or
amendment.
|
Agency
and Trustee Fees
|
22.6
|
BMUK
shall pay to the Agent and the Security Trustee each for its own account
the agency fees or, as the case may be, the trustee fees specified in the
Fee Letter (2008). The full amount of such fees shall be deemed to have
accrued due and become payable in full on the date specified in the Fee
Letter (2008) but the Agent and the Security Trustee each agree, subject
to Clause 29.3 (Effect
of Termination), that such fees shall be paid in equal instalments
as set out in the Fee Letter
(2008).
|
Additional
Monitoring and Administration Fee
|
22.7
|
Without
prejudice to any other rights that the Agent, the Security Trustee or any
of the Beneficiaries may have at such time under this Agreement or any
other Finance Document, BMUK agrees that, upon the appointment of a
receiver, administrator, administrative receiver, trustee, examiner or any
other similar officer or office holder of any Obligor or of any or all of
the assets of any Obligor or upon an order being made for the winding-up,
liquidation or dissolution of any Obligor (the date of such event or
occurrence being the “Insolvency Date”), BMUK
shall become liable to pay forthwith to the Agent for its own account, an
additional monitoring and administrative fee (the “Additional Monitoring and
Administration Fee”) in an amount equal to one per cent. (1%) of
the higher of (a) the aggregate total of all Accounts then due and owing
from any Account Debtor to the Borrowers (as determined by the Agent by
reference to the most recent information provided to it under Clause 15.2
(Provision of Financial
Information) and Clause 16.4 (Covenants relating to the
Collateral)) and (b) the Total Commitments, in each case, as at the
Insolvency Date.
|
Termination
Fee
|
22.8
|
On
the date on which the Loans are finally repaid and each Letter of Credit
or Guarantee is no longer outstanding, the Borrowers shall pay to the
Agent, for the account of the applicable Receivables Purchaser, a
termination fee in an aggregate amount equal to the lesser of (a)
£10,000,000 and (b) each IDF Portfolio
Loss.
|
|
23.
|
PRO
RATA SHARING
|
Sharing
Payments
|
23.1
|
If
a Beneficiary (a “Recovering
Beneficiary”) receives or recovers any amount from an Obligor other
than in accordance with Clause 20 (Payments) and applies
that amount to a payment due under the Finance Documents
then:
|
|
23.1.1
|
the
Recovering Beneficiary shall, within three business days, notify details
of the receipt or recovery to the
Agent;
|
|
23.1.2
|
the
Agent shall determine whether the receipt or recovery is in excess of the
amount the Recovering Beneficiary would have been paid had the receipt or
recovery been received or made by the Agent and distributed in accordance
with clause 20, without taking account of any tax which would be imposed
on the Agent in relation to the receipt, recovery or distribution;
and
|
|
23.1.3
|
the
Recovering Beneficiary shall, within three business days of demand by the
Agent, pay to the Agent an amount (the “Sharing Payment”) equal
to such receipt or recovery, less any amount which the Agent determines
may be retained by the Recovering Beneficiary as its share of any payment
to be made, in accordance with Clause 20.10 (Order of Distribution)
.
|
Redistribution
of payments
|
23.2
|
The
Agent shall treat the Sharing Payment as if it had been paid by the
relevant Obligor and distribute it between the Beneficiaries (other than
the Recovering Beneficiary) in accordance with Clause 20.10 (Order of
Distribution).
|
Recovering
Beneficiary’s rights
|
23.3
|
|
23.3.1
|
On
a distribution by the Agent under Clause 23.2 (Redistribution of
Payments) the Recovering Beneficiary will be subrogated to the
rights of the Beneficiaries which have shared in the
redistribution.
|
|
23.3.2
|
If
and to the extent that the Recovering Beneficiary is not able to rely on
its rights under sub-clause 23.3.1 above, the relevant Obligor shall be
liable to the Recovering Beneficiary for a debt equal to the Sharing
Payment which is immediately due and
payable.
|
Reversal
of redistribution
|
23.4
|
If
any part of the Sharing Payment received or recovered by a Recovering
Beneficiary becomes repayable and is repaid by that Recovering
Beneficiary, then:
|
|
23.4.1
|
each
Beneficiary which has received a share of the relevant Sharing Payment
pursuant to Clause 23.2 (Redistribution of
Payments) shall, upon request of the Agent, pay to the Agent for
account of that Recovering Beneficiary an amount equal to the appropriate
part of its share of the Sharing Payment (together with an amount as is
necessary to reimburse that Recovering Beneficiary for its proportion of
any interest on the Sharing Payment which that Recovering Beneficiary is
required to pay); and
|
|
23.4.2
|
that
Recovering Beneficiary’s rights of subrogation in respect of any
reimbursement shall be cancelled and the relevant Obligor will be liable
to the reimbursing Beneficiary for the amount so
reimbursed.
|
Exceptions
|
23.5
|
This
Clause 23 (Pro Rata
Sharing) shall not apply to the extent that the Recovering
Beneficiary would not, after making any payment pursuant to this Clause 23
(Pro Rata
Sharing), have a valid and enforceable claim against the relevant
Obligor.
|
|
23.6
|
A
Recovering Beneficiary is not obliged to share with any other Beneficiary
any amount which the Recovering Beneficiary has received or recovered as a
result of taking legal or arbitration proceedings,
if:
|
|
23.6.1
|
it
notified that other Beneficiary of the legal or arbitration proceedings;
and
|
|
23.6.2
|
that
other Beneficiary had an opportunity to participate in those legal or
arbitration proceedings but did not do so as soon as reasonably
practicable having received notice and did not take separate legal or
arbitration proceedings.
|
|
24.
|
COSTS,
EXPENSES AND STAMP DUTIES
|
Initial
and Continuing Costs and Expenses
|
24.1
|
BMUK
shall (or shall procure that an Obligor shall), from time to time on
demand of the Agent, reimburse the Agent for all costs and expenses
(including, without limitation, legal fees) together with VAT thereon
incurred by it in connection with the negotiation, preparation, execution
and administration of each of the Finance Documents and the completion of
the transactions contemplated therein and/or any amendment, variation or
novation of, supplement to, or waiver or consent in respect of, any of the
Finance Documents, the cost of any appraisals, inspections, verifications
and audits of the Collateral or Group’s operation the costs and expenses
of forwarding loan proceeds, of the collection of all cheques and other
items of payment, of the establishment and maintenance of any Receivables
Account or other account and the costs and expenses of defending any
claims made or threatened against the Agent arising out of the
transactions contemplated hereby.
|
Enforcement
Costs and Expenses
|
24.2
|
BMUK
shall, from time to time on demand of the Agent, reimburse the Agent, the
Security Trustee and each of the Lenders for all costs and expenses
(including legal fees and a reasonable estimate of the allocable cost of
in-house counsel and staff) together with VAT thereon incurred in or in
connection with the termination of this Agreement or the preservation
and/or enforcement of any of the rights of any of the Beneficiaries under
any of the Finance Documents.
|
Stamp
Duties
|
24.3
|
BMUK
shall (or shall procure that an Obligor shall) pay all stamp, registration
and other taxes to which any of the Finance Documents or any judgment
given in connection with any of the Finance Documents is or at any time
may be subject and shall, from time to time on demand of the Agent,
indemnify the Agent and any other Beneficiaries against any liabilities,
costs, claims and expenses resulting from any failure to pay or any delay
in paying any such tax.
|
Provisions
Relating to Payments
|
24.4
|
All
payments to be made by BMUK (or any other Obligor) under this clause 24
shall be made whether or not any Loan is made or Letter of Credit or
Guarantee is issued under this
Agreement.
|
Indemnity
by Lenders
|
24.5
|
If
BMUK fails to perform any of its obligations under this Clause 24 (Costs, expenses and stamp
duties), each Lender shall (i) in the proportion borne by its
Outstandings to the aggregate of the Outstandings of all the Lenders; or
(ii) if there are no Outstandings, in the proportion borne by its
Commitment to the Total Commitments; or (iii) if there are no Outstandings
and the Total Commitments have been cancelled at such time, in the
proportion borne by its Commitment to the Total Commitments immediately
before they were cancelled (in each case determined, and as at such time
as may be specified, by the Agent), indemnify the Agent, the Security
Trustee and the other Lenders against any loss incurred by any of them as
a result of such failure (save for any failure caused by the gross
negligence or wilful default of any such party) and BMUK shall forthwith
reimburse each Lender for any payment made by it pursuant to this Clause
24.5 (Indemnity by
Lenders).
|
|
25.
|
CALCULATIONS
AND EVIDENCE OF DEBT
|
Basis
of Calculation
|
25.1
|
Interest
shall accrue from day to day and shall be calculated in the case of
sterling on the basis of a year of 365 days (or, in the case of dollars or
euros, 360 days or, in any case where market practice differs, in
accordance with market practice) and the actual number of days elapsed
(not counting within any Interest Period the last day of that Interest
Period). If the basis of accrual of interest or any other
amount expressed in this Agreement in respect of sterling shall be
inconsistent with any convention or practice in the London Interbank
Market for the basis of accrual of interest or any other amount in respect
of euro, such expressed basis shall be replaced by such convention or
practice with effect from the date (if any) of conversion of sterling into
euro in accordance with EMU
legislation.
|
Failure
to Supply Quotations
|
25.2
|
In
on any occasion a Reference Bank or a Lender fails to supply the Agent
with a quotation required of it under any provision of this Agreement, the
rate for which such quotation was required shall be determined from those
quotations which are supplied to the
Agent.
|
Loan
Accounts
|
25.3
|
Each
Lender shall maintain in accordance with its usual practice accounts
evidencing the amounts from time to time lent by and owing to it under
this Agreement.
|
Control
Account
|
25.4
|
The
Agent shall maintain on its books a control account or accounts in which
shall be recorded (i) the amount of any Loan or unpaid sum made or arising
under this Agreement and each Lender’s share in such Loan or unpaid sum,
(ii) the amount of all principal, interest and other sums due or to become
due from each Borrower to each of the Lenders under this Agreement and
each Lender’s share in each such amount and (iii) the amount of any sum
received or recovered by the Agent under this Agreement and each Lender’s
share in such amount.
|
Lenders’
Books and Records.
|
25.5
|
Each
Obligor agrees that the Agent’s and the Lenders’ books and records showing
all amounts from time to time lent by and owing to any of them under this
Agreement and the transactions pursuant to this Agreement and the other
Finance Documents shall be admissible in any action or proceeding arising
therefrom, and shall constitute prima facie proof thereof (in the absence
of manifest error), irrespective of whether any such obligations are also
evidenced by any other instrument.
|
Monthly
Statements
|
25.6
|
The
Agent will provide to BMUK a monthly statement of Loans, payments and
other transactions pursuant to this Agreement. Such statement
shall be deemed correct, accurate, and binding on the Obligors and as an
account stated (except for reversals and reapplications of payments made
as provided in Clause 20.7 (Refunding of Payments)
and corrections of errors).
|
Certificates
|
25.7
|
A
certificate by the Agent or any other Finance Party as to any sum payable
by it under this Agreement or any other Finance Document shall, in the
absence of manifest error, be conclusive for the purposes of this
Agreement and such Finance Documents and prima facie evidence in any legal
action or proceedings arising out of or in connection with this Agreement
or any other Finance Documents.
|
Value
Added Tax
|
25.8
|
All
consideration (including interest and fees) payable under a Finance
Document by the Borrower to a Beneficiary shall be deemed to be exclusive
of any VAT. If VAT is chargeable, the Borrower shall pay to the
Beneficiary (in addition to and at the same time as paying the
consideration) an amount equal to the amount of that VAT. Where
a Finance Document requires the Borrower to reimburse a Beneficiary for
any costs or expenses, the Borrower shall also at the same time pay and
indemnify that Finance Party against all VAT incurred by that Finance
Party in respect of the costs and
expenses.
|
|
26.
|
THE
AGENT, THE ARRANGER, THE SECURITY TRUSTEE AND THE
LENDERS
|
Appointment
|
26.1
|
Each
Lender, the Arranger and the Security Trustee hereby appoints the Agent to
act as its agent in connection with this Agreement and the Agent and each
of the Lenders hereby appoints the Security Trustee to act as its trustee
under and in relation to the Security Documents pursuant to this Agreement
and to hold the Trust Property as trustee for the Beneficiaries on the
trusts and other terms contained in the Security Documents and each
Beneficiary hereby irrevocably authorises the Agent and the Security
Trustee to exercise such rights, powers and discretions as are
specifically delegated to the Agent or, as the case may be, the Security
Trustee by the terms of this Agreement and the Security Documents together
with all such rights, powers and discretions as are reasonably incidental
thereto provided that the Agent may not begin any legal action or
proceeding in the name of a Lender without its
consent.
|
Role
of the Arranger
|
26.2
|
Except
as specifically provided in the Finance Documents, the Arranger has no
obligations of any kind to any other party under or in connection with any
Finance Document.
|
Relationships
|
26.3
|
The
Agent in its capacity as such is agent for the Security Trustee and the
Lenders and shall not in any respect be the agent of any Borrower by
virtue of this Agreement. Nothing in this Agreement shall
constitute the Agent or the Arranger a trustee or fiduciary for the
Security Trustee, any Lender, any Borrower or any other
person.
|
Rights
of the Agent and the Security Trustee
|
26.4
|
Each
of the Agent and the Security Trustee
may:
|
|
26.4.1
|
assume
that any representation made by any Obligor in connection with any of the
Finance Documents is true, that no Event of Default has occurred and that
no Obligor is in breach of or default under its obligations under any of
the Finance Documents, in each such case unless it has actual knowledge or
actual notice to the contrary;
|
|
26.4.2
|
assume
that the Facility Office of each Lender is that set out under its name at
the end of this Agreement or, in the case of a Transferee, at the end of
the Transfer Certificate to which it is a party as Transferee or, in the
case of a Lender which is an assignee or other successor of another Lender
or former Lender, the office notified to the Agent by the assignee or
other successor on or before the date it becomes a Lender or, if the Agent
has been notified by any Lender of any change to its Facility Office in
accordance with the terms of this Agreement, that last notified to the
Agent;
|
|
26.4.3
|
engage
and pay for the advice or services of any lawyers, accountants, surveyors
or other experts whose advice or services may to it seem necessary,
expedient or desirable and rely upon any advice so
obtained;
|
|
26.4.4
|
rely
as to any matters of fact which might reasonably be expected to be within
the knowledge of an Obligor upon a certificate signed by or on behalf of
that Obligor;
|
|
26.4.5
|
rely
upon any communication, certificate, legal opinion or other document
believed by it to be genuine;
|
|
26.4.6
|
refrain
from exercising any right, power or discretion vested in it as agent or,
as the case may be, as trustee under any of the Finance Documents unless
and until instructed by the Majority Lenders as to whether or not such
right, power or discretion is to be exercised and, if it is to be
exercised, as to the manner in which it should be exercised and shall in
all cases be fully protected when acting, or refraining from acting, in
accordance with instructions from the Majority
Lenders;
|
|
26.4.7
|
refrain
from acting in accordance with any instructions of the Majority Lenders to
protect or enforce the rights of any person under any of the Finance
Documents until it has been indemnified (or received confirmation that it
will be so indemnified) and/or secured to its satisfaction against any and
all costs, losses, expenses (including legal fees) and liabilities which
it will or may expend or incur in complying with such
instructions;
|
|
26.4.8
|
retain
for its benefit and without liability to account any fee or other sum
receivable by it for its own
account;
|
|
26.4.9
|
accept
deposits, lend money to, provide any advisory or other services to or
engage in any kind of banking or other business with any Group Company
and, in each case, may do so without liability to
account.
|
Obligations
of the Agent and the Security Trustee
|
26.5
|
Each
of the Agent and the Security Trustee
shall:
|
|
26.5.1
|
promptly
(or otherwise in accordance with the terms hereof) advise each Lender of
the contents of any notice or document received by it from any Obligor
under any of the Finance Documents in its capacity as Agent or, as the
case may be, Security Trustee, except that details of any such
communication relating to a particular Lender shall be advised to that
Lender only;
|
|
26.5.2
|
promptly
notify each Lender of the occurrence of any Event of Default or any
default by any Obligor in the due performance of or compliance with its
obligations under any of the Finance Documents of which the Agent or, as
the case may be, the Security Trustee has actual knowledge or actual
notice;
|
|
26.5.3
|
subject
to the foregoing provisions of this Clause 26 (The Agent, the Arranger, the
Security Trustee and the Lenders), (in the case of the Agent) act
as agent under this Agreement or (in the case of the Security Trustee) act
as trustee for the Beneficiaries in accordance with any instructions given
to it by the Majority Lenders or as this Agreement may require and shall
be fully protected in so doing. Unless expressly provided
otherwise in a Finance Document, any instructions given by the Majority
Lenders shall be binding on each of the
Beneficiaries;
|
|
26.5.4
|
if
so instructed by the Majority Lenders, refrain from exercising any right,
power or discretion vested in it in its capacity as Agent (under this
Agreement) or in its capacity as Security Trustee (under the Finance
Documents);
|
|
26.5.5
|
have
only those duties, obligations and responsibilities, which it is hereby
acknowledged in the case of the Agent are only of a mechanical and
administrative nature, expressly specified in each of the Finance
Documents to which it is a party.
|
Exoneration
|
26.6
|
None
of the Agent, the Arranger or the Security Trustee nor any of their
respective personnel or agents shall
be:
|
|
26.6.1
|
responsible
for the adequacy, accuracy, completeness or reasonableness of any
representation, warranty, statement, projection, assumption or information
in any information memorandum or similar document prepared in connection
with any proposed syndication of the Facilities, any Finance Document or
any notice or other document delivered under or in connection with any
Finance Document;
|
|
26.6.2
|
responsible
for the execution, delivery, validity, legality, adequacy, enforceability
or admissibility in evidence of any Finance Document or any such notice or
other document;
|
|
26.6.3
|
obliged
to enquire as to the occurrence or continuation of a Default or Event of
Default or the performance or compliance by any Obligor with its
obligations under any Finance
Documents;
|
|
26.6.4
|
bound
to account to any person for any sum or the profit element of any sum
received by it for its own account;
|
|
26.6.5
|
bound
to disclose to any other person any information relating to any Obligor or
any Group Company, if such disclosure would or might in its opinion
constitute a breach of any law or regulation or be otherwise actionable at
the suit of any person.
|
Credit
Assessment
|
26.7
|
Each
Lender confirms that it has itself been, and will continue to be, solely
responsible for making its own independent investigation and appraisal of
the business and operations, financial condition, prospects,
creditworthiness, status and affairs of each Borrower, each other Obligor
and each Group Company or any other person and has not relied, and will
not at any time rely, on the Agent, the Security Trustee or any other
Lender:
|
|
26.7.1
|
to
check or enquire on its behalf into the adequacy, accuracy, completeness
or reasonableness of any representation, warranty, statement, projection,
assumption or information provided by any Obligor or any other person
under or in connection with any Finance Document or the transactions
contemplated in any Relevant Agreement (whether or not such information
has been or is at any time hereafter circulated to it by the Agent or the
Security Trustee including any contained in any information memorandum or
similar document prepared in connection with any proposed syndication of
the Revolving Facility); or
|
|
26.7.2
|
to
assess or keep under review on its behalf the business and operations,
financial condition, prospects, creditworthiness, status or affairs of any
Borrower, other Obligor or Group Company or any other
person.
|
The
Agent and the Security Trustee as Lenders
|
26.8
|
The
Agent and the Security Trustee shall each have the same rights and powers
with respect to its Commitment and Outstandings (if any) as any other
Lender and may exercise those rights and powers as if it were not also
acting as the Agent or, as the case may be, the Security
Trustee.
|
Indemnity
|
26.9
|
Each
Lender agrees that it shall, from time to time on demand of the Agent
and/or Security Trustee, indemnify the Agent and/or Security Trustee (to
the extent not reimbursed by BMUK or any other Obligor and without
prejudice to any liability of the Borrower under this Agreement) (i) in
the proportion borne by its Outstandings to the aggregate of the
Outstandings of all the Lenders; or (ii) if there are no Outstandings, in
the proportion borne by its Commitment to the Total Commitments; or (iii)
if there are no Outstandings and the Total Commitments have been cancelled
at such time, in the proportion borne by its Commitment to the Total
Commitments immediately before they were cancelled (in each case
determined, and as at such time as may be specified, by the Agent),
against all costs, claims, expenses (including legal fees) and liabilities
which it may sustain or incur in connection with this Agreement or the
performance of its obligations and responsibilities under this Agreement
save to the extent that they are sustained or incurred by reason of the
gross negligence or wilful misconduct of the Agent or the Security Trustee
or any of its personnel or agents and BMUK shall (or shall procure that an
Obligor shall) forthwith reimburse each Lender for any payment made by it
pursuant to this Clause 26.9 (Indemnity).
|
Resignation
|
26.10
|
Resignation
|
26.10.1
|
Each
of the Agent and the Security Trustee may following consultation with BMUK
and the Lenders resign its appointment under any of the Finance Documents
at any time by giving not less than thirty days’ notice in writing to that
effect to each of the other parties to this Agreement provided that such
resignation shall not become effective until a successor to the Agent or,
as the case may be, the Security Trustee has been appointed and accepted
its appointment in accordance with the following provisions of this Clause
26.10 (Resignation) and, in
the case of the Security Trustee, all necessary documents have been
entered into to ensure that the benefit of the Security Documents is held
by such successor.
|
Appointment
of Successor
|
26.10.2
|
If
the Agent or, as the case may be, the Security Trustee gives notice of its
resignation the Majority Lenders may appoint a successor. If the Majority
Lenders have not within sixty days after such notice of resignation
appointed a successor to the Agent or, as the case may be, the Security
Trustee (which shall, in either such case, be a reputable and experienced
bank with an office in London) which shall have accepted such appointment,
the retiring Agent or, as the case may be, Security Trustee shall have the
right to appoint such a successor
itself.
|
Discharge
|
26.10.3
|
If
a successor to the Agent or, as the case may be, Security Trustee is
appointed under the provisions of this Clause 26.10 (Resignation) then the
retiring Agent or, as the case may be, retiring Security Trustee shall be
discharged from any further obligations under the Finance Documents but
shall remain entitled to the benefit of the provisions of this Clause 26
(Resignation) and
its successor and each of the other parties to this Agreement shall have
the same rights and obligations amongst themselves as they would have had
if such successor had been a party to this
Agreement.
|
Disclosure
|
26.10.4
|
The
retiring Agent or, as the case may be, Security Trustee, shall make
available to its successor such documents and records and provide such
assistance as the successor may reasonably request for the purpose of
performing its functions under the Finance
Documents. Notwithstanding any provision in any Finance
Document to the contrary, neither the Agent nor the Security Trustee shall
be obliged to disclose to any person any confidential or other information
if the disclosure would or might in its reasonable opinion constitute a
breach of any law or fiduciary
duty.
|
|
27.
|
TRUSTEE
PROVISIONS
|
Declaration
of Trust
|
27.1
|
The
Security Trustee shall hold the Trust Property in trust for the benefit of
the Beneficiaries on the terms and subject to the conditions set out in
this Agreement and the terms of the other Finance
Documents. Each Beneficiary hereby confirms its approval of the
Finance Documents and any security created or to be created pursuant
thereto and hereby authorises, empowers and directs the Security Trustee
(by itself or such person(s) as it may nominate) to execute and enforce
the same as trustee (and whether or not expressly in the Beneficiaries’
names) on its behalf.
|
Perpetuity
Period
|
27.2
|
The
perpetuity period under the rule against perpetuities (if applicable)
shall be the period of eighty years from the date of this
Agreement.
|
Sums
Received by the Security Trustee
|
27.3
|
Pending
distribution under Clause 27.4 (Application of Sums
Received), the Security Trustee shall, if reasonably practicable,
place any sum received, recovered or held by it in respect of the Trust
Property in an interest bearing suspense account with a bank or financial
institution in the name of or under the control of the Security
Trustee. The interest paid on such account shall be credited to
the relevant account.
|
Application
of Sums Received
|
27.4
|
Subject
to the other provisions of this Clause 27 (Trustee Provisions),
the Security Trustee shall apply all amounts standing to the credit of any
account referred to in Clause 27.3 (Sums Received by the Security
Trustee) and any other amounts realised pursuant to the exercise of
any rights or powers it might have pursuant to any of the Security
Documents:
|
|
27.4.1
|
first,
in the payment of any costs, charges and expenses of or incidental to the
appointment of any Receiver pursuant to the Security Documents, the
payment of his remuneration and the payment and discharge of any other
Expenses incurred by or on behalf of the
Receiver;
|
|
27.4.2
|
secondly,
in or towards payment of any debts or claims which are by statute payable
in preference to the Secured Obligations but only to the extent to which
such debts or claims have such
preference;
|
|
27.4.3
|
thirdly,
in or towards payment and discharge pro rata of any Secured Obligations
then due, owing or incurred to the Security Trustee, in its capacity as
Security Trustee (and not in any other capacity) for its own account;
and
|
|
27.4.4
|
fourthly,
in payment to the Agent to be applied by the Agent in or towards payment
and discharge of the balance of the Secured Obligations (if any) in
accordance with the provisions of Clause 20.10 (Order of Distribution)
provided that, when distributing sums in accordance with this Clause 27.4
(Application of Sums
Received), the Security Trustee will treat any contingent liability
as an actual liability and distribute to the party entitled thereto
accordingly. Any such party receiving sums in respect of a
contingent liability shall place such sums on deposit with such bank (not
being a bank entitled to exercise any right of set-off or combination or
consolidation of accounts or having the benefit of any encumbrance over
such deposit) and on such terms as the Security Trustee may approve and,
if such contingent liability shall fail to mature, shall return such sums
(together with any interest earned thereon) to the Security Trustee for
distribution in accordance with the terms of this Clause 27.4 (Application of Sums
Received).
|
Security
Trustee’s Sole Right to Appropriate
|
27.5
|
No
Obligor shall have the right to appropriate any payment to, or other sum
received, recovered or held by, the Security Trustee in or towards payment
of any particular part of the Secured Obligations and the Security Trustee
shall have the exclusive right to appropriate any such payment or other
sum as provided in this Clause 27 (Trustee
Provisions).
|
Timing
of Distribution
|
27.6
|
Distributions
by the Security Trustee shall be made at such times as the Security
Trustee in its absolute discretion determines to be as soon as is
reasonably practicable, having regard to all relevant circumstances, and
the Security Trustee shall have no liability whatsoever for any loss or
damage which any Beneficiary might sustain as a consequence of the timing
of any such distribution.
|
Date
for Calculation of Secured Obligations
|
27.7
|
For
the purpose of any distribution by the Security Trustee, the Security
Trustee may, by notice to the Beneficiaries, fix a date (being not earlier
than the date of such notice) as at which the amount of the Secured
Obligations are to be calculated.
|
Certificate
from Beneficiary
|
27.8
|
For
the purposes of determining the amount of any payment to be made to any
Beneficiary pursuant hereto the Security Trustee shall be entitled to call
for and rely upon (and it is the intention of the parties that the
Security Trustee shall rely upon) a certificate from the relevant
Beneficiary of the amount and nature of any amount due, owing or incurred
to the relevant Beneficiary at the date fixed by the Security Trustee for
such purpose and as to such other matters as the Security Trustee may deem
necessary or desirable to enable it to make a
distribution.
|
Mistaken
Payments
|
27.9
|
If
the Security Trustee makes any distribution contrary to any of the
provisions of this clause 27 or any distribution made by it otherwise
transpires to have been invalid or the Security Trustee and the person
receiving such distribution agree that it should be refunded, the
recipient shall, to the extent that no charge is thereby created, hold the
proceeds of that distribution on trust to repay to the Security Trustee
forthwith on demand. If the trust imposed by this Clause 28.9
(Mistaken
Payments) cannot be given effect to for whatever reason, including
the possible creation thereby of a charge, the relevant recipient shall,
if and when so requested by the Security Trustee, pay an amount equal to
the proceeds of that distribution required to be held on trust to the
Security Trustee.
|
Supplement
to Trustee Acts 1925 & 2000
|
27.10
|
By
way of supplement to the Trustee Acts 1925 & 2000 it is expressly
declared as follows:
|
Experts
|
27.10.1
|
the
Security Trustee may, in relation to the Security Documents, act or rely
upon the opinion or advice of, or any information obtained from, any
lawyer, valuer, surveyor, broker, auctioneer, accountant or other expert
commissioned by the Security Trustee and shall not be responsible to
anyone for any loss or damage occasioned by so acting or
relying. Any such opinion, advice or information may be sent or
obtained by letter, fax, e-mail or otherwise and the Security Trustee will
not be liable to anyone for acting in good faith on any opinion, advice or
information purporting to be conveyed by such means even if it contains
some error or is not authentic or validly
signed;
|
Certificate
of BMUK
|
27.10.2
|
the
Security Trustee may call for and may accept as sufficient evidence a
certificate of BMUK signed by any director of BMUK to the effect that any
particular dealing, transaction, step or thing is, in the opinion of such
director, suitable or expedient or as to any other fact or matter upon
which the Security Trustee may, in the exercise of any of its rights,
powers or duties hereunder, require to be satisfied and the Security
Trustee need not call for further evidence and will not be responsible to
anyone for any loss or damage occasioned by acting on any such
certificate;
|
Interpretation
of Security Documents
|
27.10.3
|
the
Security Trustee (as between itself and each of the Beneficiaries) shall
have full power to determine in good faith all questions and doubts
arising in relation to any of the provisions of the Security Documents and
every such determination, whether made upon such a question actually
raised or implied in the acts or proceedings of the Security Trustee,
shall be conclusive and shall (save for manifest error) bind the Security
Trustee and each Beneficiary;
|
Title
|
27.10.4
|
the
Security Trustee shall accept without enquiry, requisition, objection or
investigation such title as any Borrower (or, as the case may be, any
Obligor) has to the Trust Property to the intent that the Security Trustee
shall not in any way be responsible for its inability to exercise any of
its rights or powers or duties hereunder or for any loss or damage thereby
occasioned;
|
Perfection
of security
|
27.10.5
|
the
Security Trustee shall not be liable for any failure, omission or defect
in perfecting any security created or purported to be created by or
pursuant to any of the Security Documents including (without prejudice to
the generality of the foregoing):
|
|
(a)
|
failure
to obtain any licence, consent or other authority for the execution,
delivery, validity, legality, adequacy, performance, enforceability or
admissibility in evidence of any of the Security Documents or any other
document;
|
|
(b)
|
failure
to effect or procure registration of or otherwise protect any security
created or purported to be created by or pursuant to any of the Security
Documents or any other document by registering under any applicable
registration laws in any territory, any notice, caution or other entry
prescribed by or pursuant to the provisions of the said
laws;
|
|
(c)
|
failure
to take or require any of the Obligors to take any steps to render the
security created or purported to be created by or pursuant to any of the
Security Documents effective as regards any property outside England and
Wales or to secure the creation of any ancillary charge under the laws of
any territory concerned; or
|
|
(d)
|
failure
to call for delivery of documents of title to or require transfers, legal
mortgages, charges or other further assurances in relation to any of the
Trust Property;
|
Acts
and omissions
|
27.10.6
|
the
Security Trustee shall not in fulfilling its duties and discharging its
responsibilities as Security Trustee be liable or responsible for any loss
or damage which may result from anything done or omitted to be done by it
in accordance with the provisions of the Security
Documents;
|
Compliance
with laws
|
27.10.7
|
the
Security Trustee may refrain from doing anything which would or might in
its opinion be contrary to any law of any jurisdiction or any regulation
or which would or might otherwise render it liable to any person and may
do anything which is, in its absolute discretion, necessary to comply with
any such law or regulation;
|
Deposit
of Security Documents
|
27.10.8
|
the
Security Trustee shall be at liberty to place all title deeds and other
documents certifying, representing or constituting the title to any of the
Trust Property for the time being in its hands in any safe deposit, safe
or receptacle selected by the Security Trustee or with any bankers or
banking company (including the Security Trustee or the Agent or any of the
other Beneficiaries) or company whose business includes undertaking the
safe custody of documents or solicitors or firm of solicitors, may pay all
reasonable sums required to be paid on account of or in respect of such
deposit and may make any such arrangements as it thinks fit for allowing
any of the Obligors or their respective lawyers or auditors access to or
possession of such title deeds and other documents when necessary or
convenient and the Security Trustee shall not be responsible for any loss
incurred in connection with any such deposit, access or
possession;
|
Use
of Nominees
|
27.10.9
|
any
investment of any part or all of the Trust Property may, at the discretion
of the Security Trustee, be made or retained in the names of
nominees;
|
Delegation
|
27.10.10
|
the
Security Trustee may, whenever it thinks fit, delegate by power of
attorney or otherwise to any person or persons, or fluctuating body of
persons, all or any of the rights, powers, authorities and discretions
vested in it by any of the Finance Documents and such delegation may be
made upon such terms and subject to such conditions (including the power
to sub-delegate) and subject to such regulations as it may think fit and
it shall not be bound to supervise, or to be in any way responsible for
any loss, liability, costs, charges or expenses incurred by reason of any
misconduct or default on the part of, any such delegate or sub-delegate
(other than as a result of its gross negligence or wilful misconduct);
and
|
Insurance
|
27.10.11
|
without
prejudice to any other provision of any of the Finance Documents, the
Security Trustee shall not be under any obligation to insure any of the
Trust Property or to require any other person to maintain any such
insurance and shall not be responsible for any loss or damage which may be
suffered by any person as a result of the lack of or inadequacy or
insufficiency of any such
insurance.
|
Registration
as Joint Proprietor
|
27.11
|
Each
of the Beneficiaries hereby confirms and agrees that it does not wish to
be registered as the joint proprietor of any mortgage or charge created
pursuant to any Finance Document and accordingly authorises the Security
Trustee to hold such mortgage or charge in its sole name as agent and
trustee for the Beneficiaries and hereby requests the Land Registry to
register the Security Trustee as the sole proprietor of any such mortgage
or charge.
|
Relationship
with the Beneficiaries
|
27.12
|
The
Security Trustee shall, for the purposes of the Finance Documents, be
entitled to deal with each of the Beneficiaries by dealing exclusively
with the Agent.
|
Indemnity
Provisions
|
27.13
|
The
Security Trustee and every attorney, agent or other person appointed by it
under any of the Finance Documents may indemnify itself or himself out of
the Trust Property against all claims, demands, liabilities, proceedings,
costs, fees, charges, losses and expenses incurred by any of them in
relation to or arising out of the taking or holding of the Trust Property,
the exercise or purported exercise of the rights, trusts, powers and
discretions vested in any of them or any other matter or thing done or
omitted to be done in connection with any of the Finance Documents or
pursuant to any law or regulation (otherwise than as a result of its gross
negligence or wilful misconduct). Any appointee referred to
above may enjoy the benefit and enforce the terms of this Clause 27.13
(Indemnity
Provisions) in accordance with the provisions of the Contracts
(Rights of Third Parties) Act 1999.
|
Appointment
of Additional Security Trustees
|
27.14
|
The
Security Trustee may at any time appoint any person (whether or not a
trust corporation) to act either as a separate trustee or as a co-trustee
jointly with it (i) if it considers such appointment to be in the
interests of the Beneficiaries or (ii) for the purposes of conforming to
any legal requirements, restrictions or conditions which the Security
Trustee deems relevant for the purposes hereof and the Security Trustee
shall give prior notice to the Obligors of any such
appointment. Any person so appointed shall (subject to the
provisions of the Finance Documents) have such powers, authorities and
discretions and such duties and obligations as shall be conferred or
imposed on such person by the instrument of appointment and shall have the
same rights, powers, discretions and benefits under the Finance Documents
as the Security Trustee. Save where the contrary is indicated
or unless the context otherwise requires any reference in the Finance
Documents to the Security Trustee shall be construed as a reference to the
Security Trustee and each such separate trustee and
co-trustee. The Security Trustee shall have power in like
manner to remove any person so appointed. Such remuneration as
the Security Trustee may pay to any person so appointed, and any costs,
charges and expenses incurred by such person in performing its functions
pursuant to such appointment, shall for the purposes hereof be treated as
costs, charges and expenses incurred by the Security Trustee in performing
its function as trustee hereunder.
|
|
28.
|
ASSIGNMENTS
AND TRANSFERS
|
Benefit
of Agreement
|
28.1
|
This
Agreement shall be binding upon and enure to the benefit of each of the
parties to it, any Transferee which becomes a party to it pursuant to a
Transfer Certificate and each of their respective successors and
assigns.
|
Assignments
and Transfers by an Obligor
|
28.2
|
No
Obligor shall be entitled to assign or transfer all or any of its rights
or obligations under this
Agreement.
|
Assignments
and Transfers by Lenders
|
28.3
|
|
28.3.1
|
Any
Lender may at any time with the prior written consent of the Agent and
after consultation with BMUK but without the prior written consent of BMUK
or any other party to this Agreement assign all or any of its rights under
this Agreement to any bank or financial institution which is a Qualifying
Lender or transfer in accordance with Clause 28.4 (Transfer Certificate)
all or any of its rights and obligations under this Agreement to any such
Qualifying Lender.
|
|
28.3.2
|
If
any Lender assigns all or any of its rights under this Agreement in
accordance with Clause 28.3.1 then, unless and until the assignee has
agreed with the Agent, the Security Trustee and the other Lenders that it
shall be under the same obligations towards each of them as it would have
been under if it had been a party to this Agreement, the Agent, the
Security Trustee and the other Lenders shall not be obliged to recognise
such assignee as having the rights against each of them which it would
have had if it had been a party to this
Agreement.
|
Transfer
Certificate
|
28.4
|
If
any Lender wishes to transfer all or any of its rights and obligations
under this Agreement in respect of the whole or any part of any Commitment
in respect of the Revolving Facility and/or its Outstandings as
contemplated in Clause 28.3.1, then such transfer may be effected by the
delivery to the Agent of a duly completed and duly executed Transfer
Certificate but only if it relates to its Commitment and/or its
Outstandings in respect of all the Facilities in which it is participating
at that time. Subject to Clause 28.5 (Acceptance and Delivery of
Transfer Certificates), the Agent shall, on receipt of such
certificate, countersign it and subject to the terms of that Transfer
Certificate and on the date specified in that Transfer
Certificate:
|
|
28.4.1
|
each
Obligor and the relevant Lender shall, to the extent provided in such
Transfer Certificate, each be released from further obligations to each
other under this Agreement and their respective rights against each other
shall be cancelled (such rights and obligations being referred to in this
Clause 28 (Assignments
and Transfers) as “discharged rights and
obligations”);
|
|
28.4.2
|
each
Obligor and the Transferee party to the relevant Transfer Certificate
shall each assume obligations towards, and acquire rights from, each other
which differ from the discharged rights and obligations only insofar as
such Obligor and the Transferee have assumed and acquired the same in
place of such Obligor and that
Lender;
|
|
28.4.3
|
the
Transferee and the other parties to this Agreement (other than the
Obligor) shall acquire the same rights and assume the same obligations
between themselves as they would have acquired and assumed had such
Transferee been an original party to this Agreement as a Lender with the
rights and obligations acquired or assumed by it as a result of such
transfer (and, to that extent, the transferor Lender and such other
parties shall each be released from further obligations to each
other).
|
Acceptance
and Delivery of Transfer Certificates
|
28.5
|
The
Agent shall not be obliged to accept any Transfer Certificate received by
it under this Agreement on any day on or after the receipt by it of a
Utilisation Notice and prior to the making of the relative Loan or issue
of the relevant Letter of Credit or Guarantee. Further, the Agent shall
not be obliged to accept a Transfer Certificate unless the Lender
delivering that Transfer Certificate has also delivered to the Agent and
the Receivables Purchaser a duly signed and dated substitution certificate
(as provided for in the funding agreement to be entered into between the
Lenders and the Receivables Purchaser) in connection with the Invoice
Discounting Agreements in form and substance satisfactory to the Agent and
the Receivables Purchaser pursuant to which it agrees, amongst other
things, to participate through its Facility Office in all Prepayments and
other payments to be made by the Receivables Purchaser under
the applicable Invoice Discounting Agreement in the proportion which its
Commitment bears to the Total Commitments immediately prior to the making
of such Prepayments or other payment. Subject thereto the Agent shall
promptly deliver a copy of any Transfer Certificate received by it to
BMUK.
|
Reliance
on Transfer Certificates
|
28.6
|
The
Agent shall be fully entitled to rely on any Transfer Certificate
delivered to it in accordance with the provisions of this Clause 28 (Assignments and
Transfers) which is complete and regular on its face as regards its
contents and purportedly signed on behalf of the Lender and the Transferee
and shall have no liability or responsibility to any party as a
consequence of placing reliance on and acting in accordance with any such
Transfer Certificate.
|
Register
of Assignments, Transfers and Fees
|
28.7
|
Register
|
28.7.1
|
The
Agent shall (on behalf of the Lenders) maintain at its address for the
service of notices as specified in Clause 32 (Notices) a register in
which the Agent shall, as soon as practicable following the date of this
Agreement and thereafter on each business day following receipt by it of
any Transfer Certificate duly completed in accordance with the provisions
of this Clause 28 (Assignments and
Transfers) or any certificate signed on behalf of each Lender
assigning any of its rights hereunder and the person to whom such rights
are to be assigned (provided the provisions of Clause 28.3 (Assignments and Transfers by
Lenders) have been complied with) and in each such case
incorporating the administrative details of the Transferee or assignee,
record (where appropriate in place of the corresponding details relating
to the transferor or assigning Lender) the names, interests and
administrative details from time to time of the Lenders having rights
and/or obligations under this Agreement. The Agent shall make
the register available for inspection by any party to this Agreement
during normal banking hours upon receipt by the Agent of reasonable prior
notice to that effect.
|
Fees
|
28.7.2
|
On
the date upon which the transfer or assignment takes effect in accordance
with the terms of this Agreement and, as the case may be, any Transfer
Certificate or assignment documents, the Transferee named in the Transfer
Certificate or the relevant assignee shall pay to the Agent for its own
account a transfer fee of £2000.
|
Change
of Facility Office
|
28.8
|
Any
Lender may at any time change its Facility Office in relation to its
Commitment and/or Outstandings by notifying the Agent of the address and
fax details of such new office.
|
Disclosure
of Information
|
28.9
|
The
Agent, the Security Trustee or any Lender may (on a confidential basis)
disclose to any actual or potential assignee, Transferee, sub-participant
or other person who may otherwise enter into or be proposing to enter into
contractual relations with the Agent, the Security Trustee or such Lender
(as the case may be) in relation to this Agreement such information about
any Borrower, any other Obligor or any other person as it thinks
fit.
|
Increased
Payments following Assignment or Transfer
|
28.10
|
If
at the time of, or immediately after, any assignment or transfer by a
Lender or any change in its Facility Office, circumstances are such that
any Obligor would be obliged to pay to an assignee, Transferee (or, in the
case of a change of Facility Office, the relevant Lender) under Clause 10
(Taxes) or 11
(Increased Costs)
any sum in excess of the sum (if any) which it would have been obliged to
pay to that Lender under the relevant clause in the absence of that
assignment, transfer or change, that Obligor shall not be obliged to pay
that excess.
|
|
29.
|
TERM
AND TERMINATION
|
Expiry
of Agreement
|
29.1
|
This
Agreement shall expire on the Termination Date unless earlier terminated
in accordance with the terms of this
Agreement.
|
Rights
to Terminate
|
29.2
|
BMUK
may terminate this Agreement at any time prior to the Termination Date
if:
|
|
29.2.1
|
it
gives the Agent sixty (60) days prior written notice of
termination;
|
|
29.2.2
|
it
has paid and performed in full all its obligations hereunder on or prior
to the effective date of termination;
and
|
|
29.2.3
|
it
pays the Agent, on or prior to the effective date of termination, and in
addition to any other prepayment premium required hereunder and any
amounts required by Clauses 19.1 (General Indemnities)
and 19.2 (Break
Costs):
|
|
(a)
|
0.75%
of the aggregate on such date of the Maximum Revolving Credit Line, if
such termination is made on or prior to the first Anniversary
Date;
|
|
(b)
|
0.5%
of the aggregate on such date of the Maximum Revolving Credit Line, if
such termination is after the first Anniversary Date but on or prior to
the second Anniversary Date; and
|
|
(c)
|
0.25%
of the aggregate on such date of the Maximum Revolving Credit Line, if
such termination is at any time after the second Anniversary Date but on
or prior to the date falling two months before the third Anniversary
Date.
|
PROVIDED
THAT no fee shall be payable under this Clause 29.2.3 if this Agreement is
terminated by the Revolving Facility being refinanced through a securitisation
arranged by Bank of America, National Association.
Effect
of Termination
|
29.3
|
Upon
the effective date of termination of this Agreement for any reason
whatsoever, the Loans, all unpaid accrued interest or fees and any other
sum then payable under this Agreement shall become immediately due and
payable, the Commitment and the Available Commitment of each Lender shall
be reduced to nil and each relevant Borrower shall immediately arrange for
the cancellation of each Guarantee or Letter of Credit then outstanding
and shall deposit with the Security Trustee with respect thereto a
Supporting Letter of Credit or cash in the same manner as contemplated in
Clause 6.14 (Supporting
Letter of Credit; Cash Collateral). Notwithstanding the termination
of this Agreement, until all such sums are paid and performed in full, the
Agent and the Lenders shall retain all their rights and remedies hereunder
and under all other Finance
Documents.
|
|
30.
|
AMENDMENTS,
WAIVERS AND REMEDIES
|
Amendments
|
30.1
|
Subject
to the proviso to this Clause 30.1 (Amendments), the Agent
may if authorised by the Majority Lenders in writing (or to the extent
expressly authorised by the other provisions of this Agreement or any
other document entered into pursuant to this Agreement) on behalf of the
Lenders amend or vary the terms of or waive breaches of or defaults under,
or otherwise excuse performance of any provision of, or grant consents
under, this Agreement or any such other document. Any
amendment, variation, waiver, release or consent authorised under this
Clause 30.1 (Amendments) and which
is effected by the Agent must be in writing and may be given subject to
such conditions as the person giving it may specify and shall be binding
on all the parties to this Agreement and the Agent shall be under no
liability in respect thereof provided that the consent of all the Lenders
in writing shall be required in respect
of:
|
|
30.1.1
|
any
increase in the Total Commitments or change in the Termination
Date;
|
|
30.1.2
|
any
extension of the date for, or alteration in the amount or currency of, any
payment of principal, interest, fee or other amounts payable under this
Agreement;
|
|
30.1.3
|
any
change in the rate at which interest is payable under this
Agreement;
|
|
30.1.4
|
the
definition of “Majority
Lenders”;
|
|
30.1.5
|
any
release or deferment of the granting or perfecting of an encumbrance or
any of the Collateral except in connection with any permitted disposal of
Equipment or any disposal permitted under Clause 16.3.2 (Disposals)) or any
Security Interest or any guarantee or similar undertaking provided by any
person;
|
|
30.1.6
|
this
Clause 30.1 (Amendments),
|
and, in
respect of a Bank Product, the consent of BofA and the other party to that Bank
Product alone shall be required in respect of any amendment, variation, waiver,
release or consent in respect of that Bank Product.
Waivers
|
30.2
|
No
failure to exercise, nor any delay in exercising, on the part of the
Agent, the Security Trustee or any Lender, any right or remedy under this
Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any right or remedy prevent any further or other
exercise of such right or remedy 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.
|
|
31.
|
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:
|
(a)
|
it
shall be ineffective only to that extent, without invalidating the
remainder of such Finance Document(s);
and
|
|
(b)
|
neither
the legality, validity or enforceability of such provision under the law
of any other jurisdiction will in any way be affected or impaired
thereby.
|
|
32.
|
NOTICES
|
General
|
32.1
|
Any
demand, notice or other communication or document to be made or delivered
under or in connection with the Finance Documents shall be made or
delivered by fax or otherwise in writing and shall be treated as having
been served if served in accordance with Clause 32.2 (Mode of
Service). Each demand, notice, communication or other
document to be made on or delivered to any party to the Finance Documents
may (unless that other person has by 10 business days’ written notice to
the other specified another address or fax number) be made or delivered to
that other person at its registered office or the address or fax number
(if any) set out under its name at the end of this Agreement or, in the
case of a Transferee, at the end of the Transfer Certificate to which it
is a party as Transferee or, in the case of a Lender which is an assignee
or other successor of another Lender or former Lender, as notified to the
Agent by the assignee or other successor on or before the date it became a
Lender.
|
Mode
of Service
|
32.2
|
Any
demand, notice, communication or other document to be made or delivered
from or to an Obligor shall be delivered to, by or through the
Agent. Subject thereto, service of any demand, notice or other
communication or document to be made or delivered under the Finance
Documents may be made:
|
|
32.2.1
|
by
leaving it at the address for service referred to in Clause 32.1 (General);
|
|
32.2.2
|
by
sending it by pre-paid first class letter (or by airmail if to or from an
address outside the United Kingdom) through the post to the address for
service referred to in Clause 32.1 (General);
or
|
|
32.2.3
|
by
fax to the fax number of the recipient and so that any fax shall be deemed
to be in writing and, if it bears the signature of the server or its
authorised representative or agent, to have been signed by or on behalf of
the server.
|
Deemed
Service
|
32.3
|
|
32.3.1
|
Any
notice or other communication or document from an Obligor (or Idea on its
behalf) shall be irrevocable and shall not be effective until its actual
receipt by the Agent. Any other notice, demand or other
communication or document shall be served or treated as served at the
following times:
|
|
(a)
|
in
the case of service personally or in accordance with Clause 32.2.1, at the
time of such service;
|
|
(b)
|
in the case of service by post,
at 9.00 a.m. on the working day next following the day on which it was
posted or, in the case of service to or from an address outside the United
Kingdom, at 9.00 a.m. on the fourth day following the day on which it was
posted; and
|
|
(c)
|
in the case of service by fax,
if sent before 9.00 am on a working day, at 11.00 a.m. on the same day, if
sent between 9.00 a.m. and 5.30 p.m. on a working day, two hours after the
time of such sending or, if sent after 5.30 p.m. on a working day or on a
day other than a working day, at 9.00 a.m. on the next following working
day.
|
|
32.3.2
|
For
the purposes of this Clause 32 (Notices) the term “working day” shall mean
a day (other than a Saturday or Sunday) upon which the recipient of any
demand, notice, communication or other document is normally open for
business in the country of its address for service referred to in Clause
32.1 (General)
and references to any time of day shall be construed as references to the
time of day on such working day in that
country.
|
Proof
of Service
|
32.4
|
In
proving service of any demand, notice, communication or other document
served:
|
|
32.4.1
|
by
post, it shall be sufficient to prove that such demand, notice,
communication or other document was correctly addressed, full postage paid
and posted; and
|
|
32.4.2
|
by
fax, it shall be sufficient to prove that the fax was followed by such
machine record as indicates that the entire fax was sent to the relevant
number.
|
|
33.
|
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.
|
34.
|
DUTCH
PARALLEL DEBT
|
Without
prejudice to the provisions of this Agreement and for the purpose of ensuring
and preserving the validity and continuity of the security rights granted and to
be granted by any of the Obligors under or pursuant to the Security Documents,
each of the Beneficiaries hereby acknowledges and consents to BMEBV and to any
other Obligor incorporated or established under the laws of the Netherlands
(each, a “Dutch Obligor”) that are at any time party to any Security Document,
undertaking to pay to Bank of America, National Association, acting in its
capacity as Security Trustee, amounts (i) equal to the amounts due from time to
time by the Obligors to the Beneficiaries in respect of the Secured Obligations
and (ii) due and payable at the same time as the corresponding amounts in
respect of the Secured Obligations are or shall be due and payable (such payment
undertaking and the obligations and liabilities resulting therefrom being, the
“Parallel
Debt”). The Beneficiaries hereby agree that the Parallel Debt
is a claim of Bank of America, National Association (in its capacity as Security
Trustee) which is independent and separate from, and without prejudice to, the
claims of Beneficiaries in respect of the Secured Obligations, and is not a
claim which is held jointly with the Beneficiaries provided that, to the extent
any amounts are paid to Bank of America, National Association under the Parallel
Debt or that Bank of America, National Association otherwise receives moneys in
payment of the Parallel Debt, the total amount due and payable in respect of the
Secured Obligations shall be decreased as if the said amounts were received
directly in payment of the outstanding Secured Obligations. Bank of
America, National Association, acting in its capacity as Security Trustee,
hereby agrees to transfer to the Agent for the benefit of the Beneficiaries all
proceeds that it receives or recovers from any Dutch Obligor in connection with
any enforcement action taken under or pursuant to any Security
Document.
|
35.
|
LAW
AND JURISDICTION
|
Law
|
35.1
|
This
Agreement shall be governed by, and construed in accordance with, English
law.
|
Jurisdiction
|
35.2
|
Submission
|
35.2.1
|
Each
Obligor irrevocably agrees for the benefit of the other parties hereto
that the courts of England shall have jurisdiction to hear and determine
any suit, action or proceeding, and to settle any disputes, which may
arise out of or in connection with this Agreement and, for such purposes,
irrevocably submits to the jurisdiction of such
courts.
|
Forum
|
35.2.2
|
Each
Obligor irrevocably waives any objection which it might now or hereafter
have to the courts referred to in Clause 35.2.1 (Submission) being
nominated as the forum to hear and determine any suit, action or
proceeding, and to settle any disputes, which may arise out of or in
connection with this Agreement and agrees not to claim that any such court
is not a convenient or appropriate
forum.
|
Service
of process
|
35.2.3
|
BMEH,
BMEP and BMEBV each agree that the process by which any suit, action or
proceeding is begun may be served on it by being delivered in connection
with any suit, action or proceeding in England, to BMUK at its registered
office for the time being.
|
Other
competent jurisdictions
|
35.2.4
|
The
submission to the jurisdiction of the courts referred to in Clause 35.2.1
(Submission)
shall not (and shall not be construed so as to) limit the right of the
other parties hereto, or any of them, to take proceedings against any
Obligor in any other court of competent jurisdiction nor shall the taking
of proceedings in any one or more jurisdictions preclude the taking of
proceedings in any other jurisdiction, whether concurrently or
not.
|
Consent
to enforcement
|
35.2.5
|
Each
Obligor hereby consents generally in respect of any legal action or
proceeding arising out of or in connection with this Agreement to the
giving of any relief or the issue of any process in connection with such
action or proceeding including, without limitation, the making,
enforcement or execution against any property whatsoever (irrespective of
its use or intended use) of any order or judgment which may be made or
given in such action or proceeding.
|
AS WITNESS the hands of the
duly authorised representatives of the parties hereto the day and year first
before written.
SCHEDULE
1
LENDERS
AND COMMITMENTS
|
Lender
|
Commitment
(£)
|
|
Bank
of America, National Association
|
50,000,000
|
|
Lloyds
TSB Commercial Finance Limited
|
20,000,000
|
|
The
Governor and Company of the Bank of Ireland Trading as Bank of Ireland
Commercial Finance
|
6,000,000
|
|
Total
|
76,000,000
|
SCHEDULE
2
CONDITIONS
PRECEDENT
|
|
[Note:
this Schedule reflects the conditions precedent under the Agreement at the
time it was originally entered into. It does not reflect subsequent
documentation delivered pursuant to the Supplemental
Agreements.]
|
A Original
documents to be collected by the Agent
|
1.
|
A
certificate dated in the form appearing in Schedule 3 duly executed by
each Obligor with all required
enclosures.
|
|
2.
|
The
Debenture duly executed by each Obligor and all other documents to be
delivered pursuant thereto and notice of the assignment of each of its
Receivables Accounts and of the Policies (as therein defined) having been
given to, and acknowledged by, the bank at which each such Receivables
Account is to be maintained or, as appropriate, by the relevant broker or
insurer with which or through whom such Policy is
placed.
|
|
3.
|
All
share certificates in respect of shares held by each Obligor and charged
pursuant to the Debenture together with instruments of transfer endorsed
in blank as required by the terms of the
Debenture.
|
|
4.
|
Confirmation
from BMUK that the terms of all contracts or arrangements under which
Inventory is supplied to the Trading Companies on reservation of title
terms have not been amended since completion of the review thereof by the
Agent during the July/August
2002 audit.
|
|
5.
|
Utilisation
Notice in respect of the first Revolving Loan and any Swingline Loan in
substantially the form set out in Schedule 4 duly executed by the relevant
Borrower.
|
|
6.
|
Policies
of insurance, including credit insurance, acceptable to the Agent with the
name of the Security Trustee endorsed as loss payee in respect of such
policies as may be specified by the Agent and acknowledgements of
assignment in satisfactory terms signed by underwriters of the insurance
policies assigned by the Obligors pursuant to the
Debenture.
|
|
7.
|
In
relation to each Obligor, details of each of its clearing accounts and
each (if any) of its Receivables
Accounts.
|
|
8.
|
An
opinion of Dutch counsel addressed to the Agent as to, among other
matters, the entry into and performance by BMEP and BMEBV of the Finance
Documents to which they are a party and legal, valid, binding and
enforceable nature of their respective obligations
thereunder.
|
|
9.
|
The
Pro-Forma Balance Sheet of BMEP.
|
|
10.
|
The
Latest Projections.
|
|
11.
|
The
Priority Agreement duly executed by the parties
thereto.
|
|
12.
|
A
Warranty (in terms satisfactory to the Agent) by BMUK as to the value of
the Inventory and the Accounts of the Trading Companies as at the Closing
Date.
|
|
13.
|
A
report by BMUK showing, in relation to the Trading Companies, details of
monthly ageings of accounts receivable, monthly ageings of accounts
payable and details of all preferential creditors and of cash, if any, at
bank as at 31 October 2002.
|
|
14.
|
An
undertaking issued by The Royal Bank of Scotland plc in favour of the
Security Trustee agreeing, on the terms and conditions therein set out, to
effect a daily cash sweep to the Security Trustee of all amounts standing
to the credit of the account therein
described.
|
B Evidence
|
1.
|
Evidence
as to the discharge of all indebtedness and financing facilities (other
than Permitted Indebtedness) (including, without limitation, the discharge
in full of the Existing Facilities) of and encumbrances (other than
Permitted Encumbrances) over the assets of, any Group Company which may
exist at the date of this Agreement including, without limitation, all
encumbrances created by any Group Company in favour of National
Westminster Bank Plc or The Royal Bank of Scotland Commercial Services
Limited or any of their Affiliates other than the legal mortgage dated 31
October 2000 created by Bell Microproducts Limited over the Chessington
Property in favour of the existing Chessington
Mortgagee.
|
|
2.
|
BMUK
shall have paid (to the extent then payable) all fees payable on the date
of this Agreement including all fees and expenses of the Agent’s legal
advisers in connection with any of the Finance Documents and the
transactions contemplated thereby.
|
|
3.
|
The
Agent being satisfied that the ageing profile and turnover of Accounts and
Inventory has not deteriorated as against their ageing profile and
turnover at the time of the audit thereof by the
Agent.
|
|
4.
|
There
shall have occurred no material adverse change in the business or
financial condition of any Borrower, any Obligor or the Group (taken as a
whole) or in the Collateral since the date of the Pro Forma Balance Sheet
and the Group has met the financial performance projections contained in
the Latest Projections, and the Agent has received a certificate of BMUK’s
chief executive officer to such
effect.
|
|
5.
|
After
taking into account any Revolving Loans or Swingline Loans to be made on
the Closing Date and any Letters of Credit or Guarantees issued or to be
issued on the Closing Date and with all the obligations of the Borrowers
being current there shall be remaining an Available Revolving Facility
Amount of at least £5,000,000.
|
|
6.
|
Evidence
satisfactory to the Agent that there has been no change to the legal
structure of Group since 1 June 2002 and that the Adjusted Tangible Net
Worth of BMEP is not less than
EUR18,467,000.
|
|
7.
|
Evidence
that BMUK has agreed to act as the agent of BMEP and BMEBV for the service
of process in England.
|
SCHEDULE
3
FORM
OF OBLIGOR'S CERTIFICATE
|
From:
|
[Obligor’s
name and address]
|
|
To:
|
Bank
of America, National Association
|
|
Business
Capital, Portfolio Management
|
|
|
5
Canada Square
|
|
|
London,
E14 5AQ
|
|
|
as
Agent for and on behalf of the Lenders
|
|
|
Attention:
|
Lee
Masters
|
Credit
Agreement dated 2 December 2002 and made between, among others, Ideal Hardware
Limited and Bell Microproducts Europe Export Limited as Original Borrowers, Bank
of America, National Association as Agent, Arranger, Issuer, Swingline Lender
and Security Trustee and the Lenders named therein (as amended from time to time
the “Credit Agreement”).
This
certificate is provided for the purposes of the Credit
Agreement. Unless stated otherwise, terms defined in the Credit
Agreement shall have the same meanings in this certificate. We
[ ],
and
[ ],
the secretary and a director respectively of the [relevant Obligor] hereby
certify that:
|
1
|
The
copy or copies delivered herewith:
|
|
1.1
|
of
the memorandum and articles of association, certificate of incorporation
and certificate(s) of incorporation on change of name (if any) of
[relevant Obligor] marked “A”;
|
|
1.2
|
of
a resolution of the board of directors of [relevant Obligor] approving the
execution and delivery of the Finance Documents to which it is party and
the performance of its obligations thereunder and authorising a named
person or persons to sign such Finance Documents and any documents to be
delivered by [relevant Obligor] pursuant thereto marked
“B”;
|
|
1.3
|
marked
“C”, being copies of each law, decree, consent, licence, approval,
registration or declaration as is, in the opinion of local counsel to the
Agent, necessary to render the Finance Documents to which it is a party
valid, legally binding and enforceable and to make each of them admissible
in evidence in England and Wales and, if different, the [relevant
Obligor’s] jurisdiction of incorporation and any jurisdiction in which any
of its assets may be situated and to enable [relevant Obligor] to perform
its obligations under such Finance Documents;
|
|
1.4
|
[marked
“D”, being copies of each Environmental Licence held by [relevant
Obligor];]
|
|
1.5
|
[marked
“E”, being copies of each policy of insurance maintained by each Borrower
and each other [Obligor] [Group Company];]*
|
|
1.6
|
[marked
“F” are copies of each of the Material Contracts as may be required by the
Agent; and]*
|
|
1.7
|
[of
the register of members and directors and secretary of [relevant Obligor]
marked “G”],
|
|
are
in each such case true, complete and up to date copies of the
originals.
|
|
|
2
|
The
persons whose names are listed below have been authorised on behalf of the
[relevant Obligor], and pursuant to the board resolution described above
to execute the Finance Documents to which [relevant Obligor] is party and
any documents or notices to be delivered by [relevant Obligor] pursuant
thereto and the signatures set opposite their names are their true
signatures:
|
Name of
Signatory Signature
……………………………. …………………………….
…………………………….
……………………………. …………………………….
…………………………….
……………………………. …………………………….
…………………………….
……………………………. …………………………….
…………………………….
............................................... ...............................................
Secretary
Name: Date
............................................... ...............................................
Director
Name: Date
[relevant
Obligor]
*BMUK’s
certificate only
SCHEDULE
4
FORM
OF UTILISATION NOTICE
From: [relevant
Borrower]
To: Bank
of America, National Association
Business
Capital, Portfolio Management
5 Canada
Square
London,
E14 5AQ
as Agent
for and on behalf of the Lenders
Dear
Sirs,
|
1
|
We
refer to the agreement (as from time to time amended, varied,
supplemented, novated or replaced, the “Credit Agreement”)
dated 2 December 2002 and made between, among others, ourselves as
Borrower, yourselves as the Agent, Arranger and Security Trustee and the
Lenders therein referred to. Terms defined in the Credit
Agreement have the same meanings in this
notice.
|
|
2
|
We
hereby give you irrevocable and unconditional notice that, pursuant to the
Credit Agreement and on [date of proposed Loan/issue of Letter
of Credit/issue of Guarantee], we wish
to:
|
|
2.1
|
borrow
a Swingline Loan [in the amount of £ ]
[in the Original Sterling Amount of
£ ] [in [specify agreed Foreign
Currency]];
|
|
2.2
|
borrow
a [Alternative Rate for the month during which such interest
accrues/LIBOR] Revolving Loan [in the amount of
£ ] [in the Original Sterling Amount of
£ ] [in [specify agreed Foreign
Currency]] having an initial Interest Period of
[ ]
months;
|
|
2.3
|
[have
a Letter of Credit issued in favour of
[ ]
for
[£ /other
currency amount] maturing not later than
[ ]
and in respect of [specify
details]];
|
|
2.4
|
[have
a Guarantee issued in favour of
[ ]
for
[£ /other
currency amount] maturing not later than
[ ]
and in respect of [specify
details]],
|
[in each
case] upon the terms and subject to the conditions contained in the Credit
Agreement.
|
3
|
We
confirm that, as at today’s date, the representations set out in clauses
14.1 and 14.2 of the Credit Agreement are true and that no Default has
occurred or is foreseen by us.
|
Yours
faithfully,
....................................
for and
on behalf of
[Borrower]
SCHEDULE
5
MANDATORY
COST FORMULAE
|
1
|
The
Mandatory Cost is an addition to the interest rate to compensate Lenders
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 Agent shall calculate, as a percentage rate, a rate (the “Additional Cost Rate”)
for each Lender, in accordance with the paragraphs set out
below. The Mandatory Cost will be calculated by the Agent as a
weighted average of the Lenders’ Additional Cost Rates (weighted in
proportion to the percentage participation of each Lender in the relevant
Loan) and will be expressed as a percentage rate per
annum.
|
|
3
|
The
Additional Cost Rate for any Lender lending from a Facility Office in a
participating member state will be the percentage notified by the Lender
to the Agent. This percentage will be certified by that Lender
in its notice to the Agent to be its reasonable determination of the cost
(expressed as a percentage of that Lender’s participation in all Loans
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
|
The
Additional Cost Rate for any Lender lending from a Facility Office in the
United Kingdom will be calculated by the Agent as
follows:
|
|
4.1
|
in
relation to a sterling
Loan:
|
|
AB + C(B – D) + E x 0.01
|
per
cent. per annum.
|
|
100
– (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 that Lender 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 18.3) payable for the relevant Interest Period on the
Loan.
|
|
C
|
is
the percentage (if any) of Eligible Liabilities which that Lender 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 Agent
on interest bearing Special Deposits.
|
|
E
|
is
designed to compensate Lenders for amounts payable under the Fees Rules
and is calculated by the Agent as being the average of the most recent
rates of charge supplied by the Reference Banks to the Agent pursuant to
paragraph 7 below and expressed in pounds per
£1,000,000.
|
|
5
|
For
the purposes of this Schedule:
|
|
|
“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.
|
|
|
“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;
and
|
|
|
“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
|
|
|
“Tariff Base” has the
meaning given to it, 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 (ie 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
|
If
requested by the Agent, each Reference Bank shall, as soon as practicable
after publication by the Financial Services Authority, supply to the Agent
the rate of charge payable by that Reference Bank to the Financial
Services Authority pursuant to the Fees Rules in respect of the relevant
financial year of the Financial Services Authority (calculated for this
purpose by that Reference Bank as being the average of the Fee Tariffs
applicable to that Reference Bank for that financial year) and expressed
in pounds per £1,000,000 of the Tariff Base of that Reference
Bank.
|
|
8
|
Each
Lender shall supply any information required by the Agent for the purpose
of calculating its Additional Cost Rate. In particular, but
without limitation, each Lender shall supply the following information in
writing on or prior to the date on which it becomes a
Lender:
|
|
(a)
|
its
jurisdiction of incorporation and the jurisdiction of its Facility Office;
and
|
|
(b)
|
any
other information that the Agent may reasonably require for such
purpose.
|
Each Lender shall promptly notify the
Agent in writing of any change to the informationprovided by it pursuant to this paragraph.
|
9
|
The
percentages or rates of charge of each Lender for the purpose of A, C and
E above shall be determined by the Agent based upon the information
supplied to it pursuant to paragraph 7 above and on the assumption that,
unless a Lender notifies the Agent to the contrary, each Lender’s
obligations in relation to cash ratio deposits, Special Deposits and the
Fees Regulations are the same as those of a typical bank from its
jurisdiction of incorporation with a Facility Office in the same
jurisdiction as its Facility
Office.
|
|
10
|
The
Agent shall have no liability to any person if such determination results
in an Additional Cost Rate which over or under compensates any Lender and
shall be entitled to assume that the information provided by any Lender
pursuant to paragraphs 3 and 7 above is true and correct in all
respects.
|
|
11
|
The
Agent shall distribute the additional amounts received as a result of the
Mandatory Cost to the Lenders on the basis of the Additional Cost Rate for
each Lender based on the information provided by each Lender pursuant to
paragraphs 3 and 7 above.
|
|
12
|
Any
determination by the Agent pursuant to this Schedule is in relation to a
formula, the Mandatory Cost, an Additional Cost Rate or any amount payable
to a Lender shall, in the absence of manifest error, be
conclusive and binding on all parties to this
Agreement.
|
|
13
|
The
Agent may from time to time, after consultation with BMUK and the Lenders,
determine and notify 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 form 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 al or any of its
functions) and any such determination shall, in the absence of manifest
error, be conclusive and binding on all
parties.
|
|
|
SCHEDULE
6
FORM
OF TRANSFER CERTIFICATE
To:
Bank of America, National Association
Business
Capital, Portfolio Management
5 Canada
Square
London,
E14 5AQ
as Agent
for the Beneficiaries
TRANSFER
CERTIFICATE
relating
to the agreement (as from time to time amended, varied, supplemented, novated or
replaced, the “Credit
Agreement”) dated 2 December 2002 and made between (1) Ideal
Hardware Limited and Bell Microproducts Europe Export Limited (as Original
Borrowers), (2) BM Europe Partners CV, (3) Bell Microproducts Europe B.V., (4)
Bank of America National Association (as Arranger, Issuer, Swingline Lender,
Agent and Security Trustee) and (5) certain banks and financial institutions (as
Lenders). Terms defined in the Agreement have the same meanings in
this Transfer Certificate.
|
1
|
[Transferor]
(the “Lender”)
hereby confirms the accuracy of the summary of its participation in the
Agreement set out in the Schedule below and requests [Transferee] (the
“Transferee”) to
accept and procure the transfer to the Transferee of such part of such
participation specified in the Schedule by counter-signing and delivering
this Transfer Certificate to the Agent at its address for the service of
notices specified in the Agreement.
|
|
2
|
The
Transferee hereby requests the Agent to accept this Transfer Certificate
as being delivered to the Agent pursuant to and for the purposes of clause
28.4 of the Agreement so as to take effect in accordance with the terms
thereof on the business day following the date of receipt by it of this
Transfer Certificate or (if later) on [specify date of transfer] subject
only to the provisions of the
Agreement.
|
|
3
|
The
Transferee confirms that it has received from the Lender a copy of the
Agreement together with such other documents and information as it has
required in connection with this transaction and that it has not relied
and will not hereafter rely on the Lender to check or enquire on its
behalf into the adequacy, accuracy or completeness of any such documents
or information or the reasonableness of any representation, warranty,
statement, projection or assumption contained therein or into the
legality, validity, effectiveness, enforceability or admissibility in
evidence of any such documents or information and further agrees that it
has not relied and will not hereafter rely on the Lender to assess or keep
under review on its behalf the business/operations, financial condition,
prospects, creditworthiness, status or affairs of any Borrower or any
other Obligor.
|
|
4
|
The
Transferee hereby undertakes with the Lender and each of the other parties
to the Agreement that it will perform in accordance with their terms all
those obligations which by the terms of the Agreement will be assumed by
it after delivery of this Transfer Certificate to the Agent and
satisfaction of the conditions (if any) subject to which this Transfer
Certificate is expressed to take
effect.
|
|
5
|
The
Lender makes no representation or warranty and assumes no responsibility
with respect to the legality, validity, effectiveness, adequacy or
enforceability of the Finance Documents or any document delivered pursuant
thereto and assumes no responsibility for the financial condition of any
of the Obligors or any other party to the Finance Documents or for the
performance and observance by any of the Obligors or any other such party
of any of its obligations under any of the Finance Documents or any
document delivered pursuant thereto and any and all such conditions and
warranties, whether express or implied by law or otherwise, are hereby
excluded.
|
|
6
|
The
Lender gives notice that nothing in this Transfer Certificate or in any of
the Finance Documents (or any document delivered pursuant thereto) shall
oblige the Lender (i) to accept a re-transfer from the Transferee of the
whole or any part of its rights and obligations under the Agreement
transferred pursuant to this Transfer Certificate or (ii) to support any
losses directly or indirectly sustained or incurred by the Transferee by
reason of the failure by any of the Obligors or any other party to the
Finance Documents (or any document delivered pursuant thereto) to perform
or comply with its obligations under any of the Finance Documents or any
such document. The Transferee hereby acknowledges the absence
of any such obligation as is referred to in (i) and (ii)
above.
|
|
7
|
The
Transferee confirms that its Facility Office and address for notices for
the purposes of the Agreement are as set out in the
Schedule.
|
|
8
|
The
Transferee undertakes to pay to the Agent for its own account a transfer
fee of £2,000 as provided in clause 28.7.2 of the
Agreement.
|
|
9
|
This
Transfer Certificate and the rights and obligations of the parties
hereunder shall be governed by and construed in accordance with English
law.
|
AS WITNESS the hands of the
authorised signatories of the parties hereto on the date appearing
below.
|
THE
SCHEDULE
|
||
|
Commitment
|
|
Portion
Transferred
|
|
Lender’s
participation in Loans
|
Repayment
Date
|
Portion
Transferred
|
|
[Lender]
|
[Transferee]
|
|
By:
|
By:
|
|
Date:
|
Date:
|
|
Administrative
Details of Transferee
|
|
|
Facility
Office:
|
........................................................
|
|
|
........................................................
|
|
|
........................................................
|
|
Contact
Name:
|
........................................................
|
|
Account for
payments:
|
........................................................
|
|
Telephone:
|
........................................................
|
|
Fax:
|
........................................................
|
SCHEDULE
7
THE
DORMANT COMPANIES AND THE GUARANTORS
PART
1
THE
DORMANT COMPANIES
|
Company
|
Company
Number
|
|
Bell
Microproducts AB
|
(in
liquidation)
|
|
Ideal
Hardware Limited
|
4079671
|
|
OpenPSL
Holdings Limited
|
3591250
|
|
OpenPSL
Limited
|
3574533
|
|
Open
Computing Limited
|
2642536
|
PART
2
THE
GUARANTORS
THE
SECURED GUARANTORS
|
Company
|
Company
Number
|
|
Bell
Microproducts Limited
|
03969946
|
|
Bell
Microproducts Europe Export Limited
|
03711148
|
|
Bell
Microproducts Europe BV
|
4064633
|
|
Bell
Microproducts (US) Limited
|
5305904
|
THE
UNSECURED GUARANTORS
|
Company
|
Company
Number
|
|
Bell
Microproducts Europe (Holdings) BV
|
39087200
|
|
Bell
Europe Partners CV
|
|
|
Bell
Microproducts S.a.r.l (a company incorporated
under
the laws of France)
|
43474497500013
|
|
Bell
Microproducts BVBA (a company incorporated under the laws of
Belgium)
|
0474128872
|
|
Bell
Microproducts S.r.l (a company incorporated
under
the laws of Italy)
|
13456670150
|
SCHEDULE
8
FORM
OF ACCESSION NOTICE
|
To:
|
Bank
of America, National Association
|
|
Business
Capital, Portfolio Management
|
|
|
5
Canada Square
|
|
|
London,
E14 5AQ
|
|
|
as
Agent for the Beneficiaries
|
|
|
From:
|
[Group
Company] and [BMUK]
|
|
Dated:
|
Dear
Sirs
Credit Agreement dated 2
December 2002 and made between, among others, Ideal Hardware Limited and Bell
Microproducts Europe Export Limited (as Original Borrowers), Bank of America,
National Association as (Agent, Arranger, Swingline Lender, Issuer and Security
Trustee) and the Lenders named therein (as amended and restated from time to
time, the “Credit Agreement”).
1.
[Group Company] agrees to become an [Additional Borrower] [Unsecured Guarantor]
and to be bound by the terms of the Credit Agreement as an [Additional Borrower]
[Unsecured Guarantor] pursuant to clause 3 of the Credit Agreement. [Group
Company] is a company duly incorporated under the laws of [name of relevant
jurisdiction].
2.
[Group Company’s] administrative details are as follows:
|
Address:
|
|
|
Fax
No.:
|
|
|
Attention
|
3.
This letter is governed by English law.
[This
Accession Notice is entered into as a deed.]
[BMUK]
[relevant Group Company]
SCHEDULE
9
DOCUMENTS
TO ACCOMPANY ACCESSION NOTICE OR SUPPLEMENTAL DEED
|
1
|
A
copy, certified a true copy by a duly authorised officer of the proposed
[Additional Borrower] [Unsecured Guarantor] [Charging Company], of the
constitutive documents of such proposed [Additional Borrower] [Unsecured
Guarantor] [Charging Company].
|
|
2
|
A
copy, certified a true copy by a duly authorised officer of the proposed
[Additional Borrower] [Unsecured Guarantor] [Charging Company], of a board
resolution of such proposed [Additional Borrower] [Unsecured Guarantor]
[Charging Company] approving the execution and delivery of a [Accession
Notice] [Supplemental Deed], the accession of such proposed [Additional
Borrower] [Unsecured Guarantor] [Charging Company] to [this Agreement]
[the Debenture] and the performance of its obligations under the Finance
Documents and authorising a person or persons (specified by name or
office) on behalf of such proposed [Additional Borrower] [Unsecured
Guarantor] [Charging Company] to execute and deliver such [Accession
Notice] [Supplemental Deed], any other Finance Document and any other
documents to be delivered by such proposed [Additional Borrower]
[Unsecured Guarantor] [Charging Company] pursuant hereto or
thereto.
|
|
3
|
A
certificate of a duly authorised officer of the proposed [Additional
Borrower] [Unsecured Guarantor] [Charging Company] setting out the names
and signatures of the person or persons mentioned in the resolution
referred to in paragraph 2 above.
|
|
4
|
A
certificate addressed to the Agent signed by two authorised signatories of
the proposed [Additional Borrower] [Unsecured Guarantor] [Charging
Company] stating that the execution by such proposed [Additional Borrower]
[Unsecured Guarantor] [Charging Company] of the [Accession Notice]
[Supplemental Deed] and the performance of such proposed [Additional
Borrower] [Unsecured Guarantor] [Charging Company] of its obligations
hereunder and thereunder are within its corporate powers, have been duly
approved by all necessary corporate action and will not cause any limit or
restriction on any of its powers (whether imposed by law, decree, rule,
regulation, its constitutive documents or agreement or otherwise) or on
the right or ability of its directors to execute such powers, to be
exceeded or breached.
|
|
5
|
A
copy of its latest audited financial
statements.
|
|
6
|
Such
legal opinion(s) of counsel to the Agent as the Agent may require, in a
form satisfactory to the Agent.
|
|
7
|
[In
connection with the acquisition of any company where such company or any
of its Subsidiaries accedes as a Charging Company to the Debenture or
otherwise executes a Security Document (such person thus
becoming an “Obligor”):
|
|
7.1
|
a
certificate addressed to the Agent from the Auditors confirming in the
context of section 155(2) Companies Act 1985
that:
|
|
|
7.1.1
|
in
their opinion such Obligor had positive net assets as defined in section
154(2) Companies Act 1985;
|
|
|
7.1.2
|
they
are not aware of anything to indicate that the decision of the directors
of such Obligor not to make a provision in relation to the giving of
financial assistance represented by the execution of each such Security
Document to which it is a party has not been made on fair and reasonable
grounds; and
|
|
|
7.1.3
|
the
giving of such financial assistance by such Obligor would not cause those
net assets to be reduced,
|
|
7.2
|
in
each such case dated as at the date of the giving of such financial
assistance;
|
|
7.3
|
a
statutory declaration by all of the directors of such Obligor as required
by Section 155(6) Companies Act 1985 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 complying
with the provisions of Section 156(4) Companies Act
1985;
|
|
7.4
|
a
copy, certified by a duly authorised officer of such Obligor as being a
true copy, of the resolution of its board of directors approving the
matters and things required to be done by it pursuant to this paragraph 8
and in particular the giving of such financial
assistance.]*
|
|
8
|
Such
other documents or evidence relating to such proposed [Additional
Borrower] [Unsecured Guarantor] [Charging Company] as the Agent may
reasonably require.
|
* This
paragraph only applies where a company being acquired (or one or more of its
Subsidiaries) is acceding to the Debenture or otherwise executing a Security
Document to secure borrowings raised for its acquisition.
SCHEDULE
10
THE
MATERIAL CONTRACTS
|
Description
of Agreement
|
Date
|
Parties
|
|
Microsoft
OEM Distributor Channel Agreement
|
1
July 2007
|
(1)
BMUK (2) Microsoft Ireland Operations Ltd
|
|
Europe
Authorised Distributor Agreement
|
11
April 2006
|
(1)
BMUK (2) Seagate Technology International
|
|
International
Distributor Agreement
|
27
December 2002
|
(1)
Bell Microproducts Inc (2) Western Digital Technologies
Inc
|
|
Authorised
Distributor Agreement
|
7
June 2005
|
(1)
BMUK (2) Symantec Limited
|
|
Logistic
Service Partner Agreement
|
4
January 2007
|
(1)
BMUK (2) Hewlett-Packard Ltd.
|
|
Channel
Development Partner Agreement
|
4
January 2007
|
(1)
BMUK (2) Hewlett-Packard Ltd.
|
|
Value
Added International Distribution Agreement
|
4
October 2004
|
(1)
BMUK (2) McAfee Ireland Limited
|
|
IBM
Business Partner Agreement
|
5
February 2003
|
(1)
BMUK (2) IBM United Kingdom Limited
|
THE
ORIGINAL BORROWERS
|
SIGNED for and on behalf
of
|
)
|
|
IDEAL
HARDWARE LIMITED1
|
)
|
|
by:
|
)
|
|
Address:
|
Cox
Lane
|
|
Chessington
|
|
|
Surrey
KT9 1SJ
|
|
|
Fax:
|
020
8286 5588
|
|
Attention:
|
Nick
Lee/Helen Hancock
|
|
SIGNED for and on behalf
of
|
)
|
|
BELL
MICROPRODUCTS EUROPE
|
)
|
|
EXPORT
LIMITED
|
)
|
|
by:
|
)
|
|
Address:
|
Cox
Lane
|
|
Chessington
|
|
|
Surrey
KT9 1SJ
|
|
|
Fax:
|
020
8286 5588
|
|
Attention:
|
Nick
Lee/Helen Hancock
|
THE
DUTCH OBLIGORS
|
SIGNED for and on behalf
of
|
)
|
|
BM EUROPE PARTNERS
C.V.
|
)
|
|
by:
|
)
|
|
Address:
|
c/o
Cox Lane
|
|
Chessington
|
|
|
Surrey
KT9 1SJ
|
|
|
Fax:
|
020
8286 5588
|
|
Attention:
|
Nick
Lee/Helen Hancock
|
|
SIGNED for and on behalf
of
|
)
|
|
BELL
MICROPRODUCTS
|
)
|
|
EUROPE
BV
|
)
|
|
by:
|
)
|
|
Address:
|
c/o
Fountain Court
|
|
Cox
Lane
|
|
|
Chessington
|
|
|
Surrey
KT9 1SJ
|
|
|
Fax:
|
020
8286 5588
|
|
Attention:
|
Nick
Lee/Helen Hancock
|
THE
AGENT
|
SIGNED for and on behalf
of
|
)
|
|
BANK
OF AMERICA,
|
)
|
|
NATIONAL
ASSOCIATION
|
)
|
|
by:
|
|
Address:
|
5
Canada Square
|
|
London E14
5AQ
|
|
|
Fax:
|
020
7174 6400
|
|
Attention:
|
Business
Capital, Portfolio Management
|
THE
ARRANGER
|
SIGNED for and on behalf
of
|
)
|
|
BANK
OF AMERICA,
|
)
|
|
NATIONAL
ASSOCIATION
|
)
|
|
by:
|
|
Address:
|
5
Canada Square
|
|
London E14
5AQ
|
|
|
Fax:
|
020
7174 6400
|
|
Attention:
|
Business
Capital, Portfolio Management
|
THE
SECURITY TRUSTEE
|
SIGNED for and on behalf
of
|
)
|
|
BANK
OF AMERICA,
|
)
|
|
NATIONAL
ASSOCIATION
|
)
|
|
by:
|
|
Address:
|
5
Canada Square
|
|
London E14
5AQ
|
|
|
Fax:
|
020
7174 6400
|
|
Attention:
|
Business
Capital, Portfolio Management
|
THE
SWINGLINE LENDER
|
SIGNED for and on behalf
of
|
)
|
|
BANK
OF AMERICA,
|
)
|
|
NATIONAL
ASSOCIATION
|
)
|
|
by:
|
|
Address:
|
5
Canada Square
|
|
London E14
5AQ
|
|
|
Fax:
|
020
7174 6400
|
|
Attention:
|
Business
Capital, Portfolio Management
|
THE
ISSUER
|
SIGNED for and on behalf
of
|
)
|
|
BANK
OF AMERICA,
|
)
|
|
NATIONAL
ASSOCIATION
|
)
|
|
by:
|
|
Address:
|
5
Canada Square
|
|
London E14
5AQ
|
|
|
Fax:
|
020
7174 6400
|
|
Attention:
|
Business
Capital, Portfolio Management
|
THE
LENDERS
|
SIGNED for and on behalf
of
|
)
|
|
BANK
OF AMERICA,
|
)
|
|
NATIONAL
ASSOCIATION
|
)
|
|
by:
|
|
Address:
|
5
Canada Square
|
|
London E14
5AQ
|
|
|
Fax:
|
020
7174 6400
|
|
Attention:
|
Business
Capital, Portfolio Management
|