EXHIBIT 1
CONFORMED COPY
AGREEMENT
DATED 25TH MARCH, 1998
EURO 6,000,000,000
SYNDICATED CREDIT FACILITY
FOR
THE GENERAL ELECTRIC COMPANY, p.l.c.
ARRANGED BY
BANCA COMMERCIALE ITALIANA S.p.A., LONDON BRANCH
BANQUE NATIONALE DE PARIS
BARCLAYS CAPITAL
CHASE MANHATTAN plc
MIDLAND BANK plc
X. X. XXXXXX SECURITIES LTD.
SBC WARBURG DILLON READ
WESTDEUTSCHE LANDESBANK GIROZENTRALE
as Joint Lead Arrangers
with
HSBC INVESTMENT BANK PLC
as Agent
and
MARINE MIDLAND BANK
as US Swingline Agent
XXXXX & XXXXX XXXXXXXX CHANCE
London London
for the Borrower for the Banks
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INDEX
Clause Page
1. Interpretation........................................................1
2. The Facilities.......................................................16
3. Purpose..............................................................18
4. Conditions Precedent.................................................18
5. Advance Facilities...................................................18
6. Xxxx Facility........................................................22
7. Bills................................................................24
8. Repayment............................................................25
9. Prepayment and Cancellation..........................................26
10. Interest.............................................................29
11. Payments.............................................................30
12. Taxes................................................................33
13. Market Disruption....................................................37
14. Availability of Currencies...........................................38
15. Increased Costs......................................................40
16. Illegality and Mitigation............................................41
17. Guarantee............................................................42
18. Representations and Warranties.......................................44
19. Undertakings.........................................................46
20. Default..............................................................47
21. The Agents and the Joint Lead Arrangers..............................49
22. Fees.................................................................54
23. Expenses.............................................................56
24. Stamp Duties.........................................................56
25. Indemnities..........................................................56
26. Evidence and Calculations............................................57
27. Amendments and Waivers...............................................58
28. Changes to the Parties...............................................59
29. Disclosure of Information............................................62
30. Set-Off..............................................................63
31. Pro Rata Sharing.....................................................63
32. Severability.........................................................64
33. Counterparts.........................................................64
34. Notices..............................................................64
35. Language.............................................................66
36. Jurisdiction.........................................................66
37. Governing Law........................................................67
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Schedule Page
1. Part I - Banks and Commitments.......................................68
Part II - Swingline Banks and Swingline Commitments..................69
2. Original Borrowers...................................................70
3. Conditions Precedent Documents.......................................71
Part I - To Be Delivered Before The First Advance....................71
Part II - To Be Delivered By An Additional Borrower..................72
4. Calculation of the MLA Cost..........................................73
5. Form of Request......................................................75
6. Forms of Accession Documents.........................................76
Part I - Novation Certificate........................................76
Part II - Borrower Accession Agreement...............................78
Part III - Form of Borrower Novation Agreement.......................79
7. Form of Xxxx.........................................................81
Signatories...................................................................82
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THIS AGREEMENT is dated 25th March, 1998 BETWEEN:
(1) THE GENERAL ELECTRIC COMPANY, p.l.c. (Company No. 67307) (the "Parent");
(2) THE SUBSIDIARIES OF THE PARENT listed in Schedule 2 (if any) as original
borrowers (the "Original Borrowers");
(3) BANCA COMMERCIALE ITALIANA S.p.A., LONDON BRANCH, BANQUE NATIONALE DE
PARIS, BARCLAYS CAPITAL, CHASE MANHATTAN plc, MIDLAND BANK plc, X. X.
XXXXXX SECURITIES LTD., SWISS BANK CORPORATION (acting through its division
SBC WARBURG DILLON READ), WESTDEUTSCHE LANDESBANK GIROZENTRALE each as a
joint lead arranger (each a "Joint Lead Arranger");
(4) THE FINANCIAL INSTITUTIONS listed in Schedule 1 as banks;
(5) HSBC INVESTMENT BANK PLC as agent (the "Agent"); and
(6) MARINE MIDLAND BANK as US swingline agent (in this capacity the "US
Swingline Agent").
IT IS AGREED as follows:
1. INTERPRETATION
1.1 Definitions
In this Agreement:
"Acceptance Commission Rate"
means 0.175 per cent, per annum.
"Additional Borrower"
means a Subsidiary of the Parent which becomes a Borrower in accordance
with Clause 28.4 (Additional Borrowers).
"Advance"
means a Tranche A Advance, a Tranche B Advance or a Swingline Advance.
"Advance Facility"
means the facility to draw Tranche A Advances, Tranche B Advances or
Swingline Advances referred to in sub-clauses 2.1(a), (b) and (c)
(Facilities) respectively.
"Affiliate"
for the purposes of this Agreement means a Subsidiary or a holding company
(as defined in Section 736 of the Companies Act 1985) of a person and any
other Subsidiary of that holding company.
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"Agent's Spot Rate of Exchange"
means the spot rate of exchange as determined by the Agent for the purchase
of the relevant Optional Currency in the London foreign exchange market
with euros at the relevant time on a particular day, but for the purpose of
any conversion after the Commencement Date between the euro and a national
currency unit (and vice versa) the rate shall be that determined in
accordance with EMU legislation.
"Agreed Percentage"
means in relation to a Bank (other than a Swingline Bank) and a Swingline
Advance, the amount of its Tranche B Commitment expressed as a percentage
of the Tranche B Total Commitments.
"Anniversary"
means an anniversary of the Signing Date.
"Applicable Taxes"
means any tax levied or imposed by the United Kingdom or any country in
which any Borrower is incorporated or any jurisdiction from or through
which any payment under this Agreement is made.
"Banks"
means those financial institutions listed in Schedule 1 and their
respective successors and assigns which are for the time being
participating in the Facilities.
"Barclays Capital"
means Barclays Capital Group, the investment banking division of Barclays
Bank PLC.
"Xxxx"
means a Xxxxxxxx xxxx of exchange substantially in the form of Schedule 7.
"Xxxx Facility"
means the facility to draw Bills for acceptance by the Banks under Tranche
A or Tranche B referred to in sub-clauses 2.1(a) and (b) (Facilities)
respectively.
"Borrower"
means the Parent, the Original Borrowers and each Additional Borrower.
"Borrower Accession Agreement"
means a letter substantially in the form of Part II of Schedule 6 with such
amendments as the Agent may, at the request of the Parent, approve.
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"Borrowings"
means any indebtedness (whether as principal or surety) for or in respect
of money borrowed (including amounts raised by acceptances under any
acceptance credit, bills, bonds, debentures and similar securities and
finance leases arranged primarily to raise finance) and the net amount of
any liability under any treasury transaction with a bank or financial
institution but excluding in each case any such indebtedness:
(a) arising for or in respect of assets or services acquired or sold in
the ordinary course of business (except to the extent it is a treasury
transaction or would be treated as a loan, overdraft or obligation
under a finance lease in the audited consolidated annual accounts of
the Group); and
(b) owing by one member of the Group to another member of the Group.
"Business Day"
means:
(a) a day (other than a Saturday or Sunday) on which banks are open for
general interbank business (other than operation only of business in
euros) in:
(i) London in relation to the day any Request (except a Request for
Swingline Advances in U.S. Dollars or euros) is made and, unless
(b) below applies, for any other purpose;
(ii) if a payment is required in an Optional Currency (including but
not limited to Sterling), the principal financial centre of the
country of that Optional Currency; and
(iii) if a payment is required in ECU (at any time prior to the
Commencement Date), Paris and Brussels; and
(b) in relation to a payment or rate fixing in or other matter relating to
euros, a day on which the Trans-European Automated Real-time Gross
settlement Express Transfer system (TARGET) is operating.
"Code"
means, on any date, the United States Internal Revenue Code of 1986, as
amended and the regulations promulgated and rulings issued thereunder, all
as the same may be in effect at such date.
"Commencement Date"
means the date of commencement of the third stage of EMU as contemplated by
the Treaty (at the date of this Agreement, expected to be 1st January,
1999).
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"Commitment"
means, in respect of a Bank, the aggregate of its Tranche A Commitment and
Tranche B Commitment (including its Swingline Commitment or the Swingline
Commitment of its Swingline Affiliate, if applicable), in each case to the
extent not cancelled or reduced under this Agreement.
"Controlled Group"
means all members of a controlled group of corporations and all trades or
businesses (whether or not incorporated) under common control which,
together with any Obligor are treated as a single employer under Section
414 of the Code.
"Default"
means an Event of Default or an event which, with the giving of any notice
or expiry of any grace period, in each case specified in Clause 20
(Default), would constitute an Event of Default.
"EBDR"
means the rate determined by the Agent to be the arithmetic mean (rounded,
if necessary, to the nearest five decimal places with the midpoint rounded
upwards) of the respective rates notified to the Agent by the Reference
Banks (provided at least two Reference Banks are quoting) at or about 10.30
a.m. on the Utilisation Date for a Xxxx at which Eligible Bills with a face
amount of (Pounds)1,000,000 and of an equivalent tenor can be discounted in
the London discount market at or about that time.
"ECU"
means the ECU, as referred to in Article 109g of the Treaty and as defined
in Council Regulation (EC) No. 3320/94, that is from time to time used as
the unit of account of the European Communities; changes to the ECU may be
made by the European Communities, in which event the ECU will change
accordingly.
"Eligible Xxxx"
means a Xxxxxxxx xxxx of exchange eligible for rediscounting at the Bank of
England.
"EMU"
means Economic and Monetary Union as contemplated in the Treaty.
"EMU legislation"
means legislative measures of the European Council for the introduction of,
changeover to, or operation of, a single or unified European currency.
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"ERISA"
means the U.S. Employee Retirement Income Security Act of 1974, as amended
from time to time and any successor statute of similar import, together
with any rule or regulation issued thereunder.
"euro" or "euros"
means the single currency to be introduced on the Commencement Date but,
prior to the Commencement Date, references to the "euro" or to "euros" will
be read as references to ECU in accordance with Clause 11.4(b) (Currency).
"euro unit"
means a unit of the euro as defined in EMU legislation.
"Event of Default"
means an event specified as such in Clause 20 (Default).
"Facility"
means any of the Advance Facilities or the Xxxx Facility.
"Facility Office"
means the office(s) notified by a Bank to the Agent and the Parent:
(a) on or before the date it becomes a Bank; or
(b) subject to Clause 28.6 (Change of Facility Office), by not less than
five Business Days' notice to the Agent and the Parent,
as the office(s) through which it will perform all or any of its
obligations under this Agreement.
"Federal Funds Rate"
means, for any period, a fluctuating interest rate per annum equal for each
day during such period to the weighted average of the rates on overnight
United States Federal funds transactions with members of the United States
Federal Reserve System arranged by Federal funds brokers, as published for
such day (or, if such day is not a New York Business Day, for the
immediately preceding New York Business Day) by the Federal Reserve Bank of
New York, or, if such rate is not so published for any day which is a New
York Business Day, the average of the quotations for such day on such
transactions received by the US Swingline Agent from three Federal funds
brokers of recognised standing selected by it.
"Fee Letters"
means each letter dated on or about the Signing Date:
(a) between the Agent and the Parent; and
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(b) between the Joint Lead Arrangers and the Parent,
in each case setting out the amount of various fees referred to in Clause
22 (Fees).
"Finance Document"
means this Agreement, each Fee Letter, a Xxxx, a Novation Certificate, a
Borrower Accession Agreement, each Novation Agreement entered into as
contemplated by Clause 9.5(b)(iii) (Changes to Borrowers) or any other
document designated in writing as such by the Agent and the Parent.
"Finance Party"
means each Joint Lead Arranger, a Bank, the Agent and the US Swingline
Agent.
"Group"
means the Parent and its Subsidiaries.
"Interest Period"
in relation to a Term-out Advance, has the meaning given to it in Clause
10.1 (Interest Periods for Term-out Advances).
"LIBOR"
means in relation to any Advance or unpaid sum:
(a) the rate per annum of the offered quotation for deposits in the
currency of the relevant Advance or unpaid sum for a period equal to
or as near as possible to the required period which appears on
Telerate Page 3750 or Telerate Page 3740 (as appropriate) at or about
11.00 a.m. on the applicable Rate Fixing Day; or
(b) if the rate cannot be determined under paragraph (a) above, the rate
determined by the Agent to be the arithmetic mean (rounded, if
necessary, to the nearest five decimal places with the midpoint
rounded upwards) of the respective rates notified to the Agent by each
of the Reference Banks quoting (provided that at least two Reference
Banks are quoting) as the rate at which it is offering deposits in the
required currency and for the required period in an amount comparable
to the participation of that Reference Bank (or, if it is not a Bank,
the participation of its Affiliate which is a Bank) in the Advance or
unpaid sum to prime banks in the London interbank market at or about
11.00 a.m. on the Rate Fixing Day for such period.
For the purpose of this definition:
(i) "required period" means the applicable Interest Period for a Term-out
Advance, the Term for Tranche A Advances (except Term-out Advances) or
for Tranche B Advances or the period in respect of which LIBOR falls
to be determined in relation to such unpaid sum; and
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(ii) "Telerate Page 3750" means the display designated as Page 3750, and
"Telerate Page 3740" means the display designated as Page 3740, in
each case on the Telerate Service (or such other pages as may replace
page 3750 or Page 3740 on that service or such other service as may be
nominated by the British Bankers' Association (including the Reuters
Screen) as the information vendor for the purposes of displaying
British Bankers' Association Interest Settlement Rates for deposits in
the currency concerned).
"Majority Banks"
means, at any time:
(a) if any Utilisations are outstanding, Banks with an aggregate Original
Euro Amount of Advances or Bills at that time of more than 66 2/3 per
cent. of the aggregate Original Euro Amount of all Advances and Bills
then outstanding; or
(b) if no Utilisations are outstanding, Banks whose Commitments then
aggregate more than 66 2/3 per cent. of the Total Commitments (or, if
the Total Commitments have been reduced to zero, aggregated more than
66 2/3 per cent. of the Total Commitments immediately before the
reduction).
"Mandatory Prepayment Event"
means the event specified in Clause 9.4 (Mandatory Prepayment Event).
"Margin"
means 0.175 per cent. per annum.
"Maturity Date"
means the last day of the Term of an Advance or a Xxxx.
"MLA Cost"
means in relation to an Advance in Sterling, the cost of compliance with
the Mandatory Liquid Assets requirements of the Bank of England during its
Term or Interest Period, determined in accordance with Schedule 4.
"national currency unit"
means the unit of currency (other than a euro unit) of a Treaty Country.
"New York Business Day"
means a day (other than a Saturday or Sunday) on which banks are open for
interbank business generally in New York.
"Novation Certificate"
has the meaning given to it in Clause 28.3(a)(i) (Procedure for novations).
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"Obligor"
means the Parent and each Borrower.
"Optional Currency"
means, in relation to any Advance or proposed Advance, Sterling, U.S.
Dollars or any other currency other than euros which is readily available
and freely transferable in the London foreign exchange market in sufficient
amounts to fund that Advance.
"Original Euro Amount"
means:
(a) the principal amount of an Advance denominated in euros; or
(b) the principal amount of an Advance denominated in any other currency
or a Xxxx, translated into euros on the basis of the Agent's Spot Rate
of Exchange on the date of receipt by the Agent of the Request for
that Advance or Xxxx.
"Party"
means a party to this Agreement.
"PBGC"
means the U.S. Pension Benefit Guaranty Corporation, or any successor
thereto.
"Permitted Security Interest"
means:
(a) a lien or right of set-off arising by operation of law (or by
agreement evidencing a lien or right of set-off) and in each case in
the ordinary course of business;
(b) any Security Interest securing any Borrowings of any Obligor which
becomes a member of the Group after the Signing Date which was in
existence when that Obligor became a member of the Group and was not
created in contemplation of that Obligor becoming a member of the
Group;
(c) a Security Interest over an asset acquired by an Obligor after the
Signing Date and to which such asset was subject at the time of such
acquisition provided it was not created in contemplation of that
acquisition;
(d) any Security Interest the principal purpose and effect of which is to
allow the setting-off or netting of obligations:
(i) with those of a financial institution; or
(ii) under swaps or other derivative agreements,
in the ordinary course of the cash management arrangements of the
Group;
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(e) any retention of title reserved by any seller of goods or any Security
Interest imposed, reserved or granted over goods supplied by such
seller in the ordinary course of business;
(f) any Security Interest arising out of or in connection with pre-
judgement legal process or a judgement or a judicial award relating to
security for costs;
(g) a Security Interest securing any refinancing of amounts secured under
(b) or (c)above provided the amount secured does not exceed the amount
originally secured;
(h) a Security Interest which the Majority Banks have at any time agreed
in writing shall be a Permitted Security Interest; and
(i) Security Interests (other than Security Interests permitted by
paragraphs (a) to (h) above) which secure, in aggregate, Borrowings in
an amount not exceeding 15 per cent. of the Total Consolidated Assets
of the Group.
"Plan"
means an employee pension benefit plan which is covered by Title IV of
ERISA or subject to the minimum funding standards under Section 412 of the
Code as to which an Obligor or any member of the Controlled Group has any
obligation to contribute.
"Prime Rate"
means the prime commercial lending rate for U.S. Dollars from time to time
announced by the US Swingline Agent. Each change in the interest rate on a
Swingline Advance which results from a change in the Prime Rate becomes
effective on the day on which the change in the Prime Rate becomes
effective.
"Qualifying Bank"
means a bank or institution which is:
(a) a bank as defined in Section 840A of the Income and Corporation Taxes
Act 1988 which is within the charge to corporation tax as regards any
interest received by it under this Agreement; or
(b) resident (as such term is defined in the appropriate double taxation
treaty) in a country with which the United Kingdom has an appropriate
double taxation treaty under which that institution is entitled to
exemption from United Kingdom tax on interest and is entitled to apply
under the Double Taxation Relief (Taxes on Income) (General)
Regulations 1970 to have interest paid to its Facility Office without
withholding or deduction for or on account of United Kingdom tax (and
does not carry on business in the United Kingdom through a permanent
establishment with which the investments under this Agreement in
respect of which the interest is paid are effectively connected); and
for this purpose "double taxation treaty" means any convention or
agreement between the government of the United Kingdom and any other
government for the
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avoidance of double taxation and the prevention of fiscal evasion with
respect to taxes on income and capital gains.
"Rate Fixing Day"
means:
(a) the Utilisation Date for an Advance denominated in Sterling; and
(b) the second Business Day before the Utilisation Date for an Advance
denominated in euros or any Optional Currency other than Sterling (or
such other day as is generally treated as the rate fixing day by
market practice in the London interbank market for the currency
concerned).
"Reference Banks"
means, subject to Clause 28.5 (Reference Banks), Barclays Bank PLC,
National Westminster Bank Plc and Midland Bank plc.
"Reportable Event"
means a reported event as defined in Section 4043 of ERISA and the
regulations issued under such section with respect to a Plan, excluding,
however, such events as to which the PBGC by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified within 30 days
of the occurrence of such event, provided, however, that a failure to meet
the minimum funding standard of Section 412 of the Code and of Section 302
of ERISA shall be a Reportable Event regardless of the issuance of any such
waiver of the notice requirement in accordance with either Section 4043(a)
of ERISA or Section 412(d) of the Code.
"Request"
means a request made by a Borrower to utilise a Facility, substantially in
the form of Schedule 5.
"Requested Amount"
means the amount requested in a Request.
"Rollover"
means, in relation to a particular date, one or more Advances (including,
but not limited to, the Term-out Advances):
(a) whose proposed Utilisation Date is the same as the Maturity Date of
one or more existing Advances;
(b) whose aggregate principal amount is the same as or less than the
aggregate outstanding principal amount of all existing Advances whose
Maturity Date is the same as that Utilisation Date; and
(c) which are to be denominated in the same currency or a legal
denomination of the currency as the existing Advance(s) whose Maturity
Date is the same as that
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Utilisation Date (or, if there is more than one such existing Advance
and such Advances are denominated in different currencies, in the same
or lesser respective amounts of the same or legally equivalent
currencies as for such existing Advances).
"Security Interest"
means a mortgage, charge, pledge, lien or similar security interest.
"Signing Date"
means the date of this Agreement.
"Subsidiary"
means a subsidiary within the meaning of Section 736 of the Companies Xxx
0000, as amended by Section 144 of the Companies Xxx 0000.
"Swingline Advance"
means an advance made or to be made by a Swingline Bank under the Swingline
Facility.
"Swingline Affiliate"
means, in relation to a Bank, any Swingline Bank that is an Affiliate of
that Bank and which is notified to the Agent and the US Swingline Agent by
that Bank in writing to be its Swingline Affiliate.
"Swingline Bank"
means, subject to Clause 28.2 (Transfers by Banks), a Bank listed in Part
II of Schedule 1.
"Swingline Commitment"
means in respect of a Swingline Bank, the amount in euros set opposite its
name in Part II of Schedule 1 to the extent not transferred, cancelled or
reduced under this Agreement.
"Swingline Facility"
means the committed swingline facility available in U.S. Dollars, Sterling
or euros, forming part of Tranche B and referred to in Clause 2.1(c)
(Facilities).
"Swingline Rate"
means, on any day:
(a) in relation to Swingline Advances in U.S. Dollars, the higher of:
(i) the Prime Rate; and
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(ii) the aggregate of the Federal Funds Rate and one per cent. per
annum,
on that day; and
(b) in relation to Swingline Advances in Sterling, the aggregate of:
(i) one per cent. per annum;
(ii) the Bank of England's fixed repo rate (being the Bank of
England's operational rate) at which it conducts its daily money
market operations as at the time the Request is served and at
9.00 a.m. for each subsequent day; and
(iii) the MLA Cost,
on that day; and
(c) in relation to Swingline Advances in euros, the aggregate of:
(i) one per cent. per annum; and
(ii) the cost of same day euro funds certified to the Agent by each
Swingline Bank for each day the relevant Swingline Advance in
euros is outstanding as at the time the Request is served and at
9.00 a.m. for each subsequent day,
on that day.
"Swingline Total Commitments"
means the aggregate for the time being of the Swingline Commitments, being
euro 1,000,000,000 at the date of this Agreement.
"Term"
means the period selected by a Borrower in a Request for which the relevant
Advance or Xxxx is to be outstanding.
"Term-out Advances"
means the Tranche A Advances, if any, drawn under Clause 8.1(b) (Repayment
of Tranche A Advances).
"Total Commitments"
means the aggregate of the Tranche A Total Commitments and Tranche B Total
Commitments (including the Swingline Total Commitments) from time to time.
"Total Consolidated Assets"
means the aggregate from time to time of the Group's consolidated fixed
assets (including investments but excluding goodwill and intangible assets)
and consolidated current assets, all determined in accordance with
applicable accounting standards from time to time used in preparation of
the Group's audited consolidated annual accounts.
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"Tranche A"
has the meaning given to it in Clause 2.1(a) (Facilities).
"Tranche A Advance"
means an Advance made by a Bank under Tranche A.
"Tranche A Availability Period"
means the period from the Signing Date up to and including 24th March, 1999
(being the date which is 364 days after the Signing Date).
"Tranche A Commitment"
means, in respect of a Bank, the amount in euros set opposite the name of
that Bank in Column 1 of Part I of Schedule 1 to the extent not cancelled
or reduced under this Agreement.
"Tranche A Term Date"
means the last day of the Tranche A Availability Period or, if that day is
not a Business Day, the preceding Business Day.
"Tranche A Term-out Option"
means the option available to the Borrowers to draw Term-out Advances under
Tranche A pursuant to Clause 8.1(b) (Repayment of Tranche A Advances).
"Tranche A Total Commitments"
means the aggregate for the time being of the Tranche A Commitments, being
euro 1,500,000,000 at the date of this Agreement.
"Tranche B"
has the meaning given to it in Clause 2.1 (b) (Facilities).
"Tranche B Advance"
means an Advance made by a Bank under Tranche B.
"Tranche B Availability Period"
means the period from and including the Signing Date to and including the
Tranche B Final Maturity Date.
"Tranche B Commitment"
means, in respect of a Bank, the amount in euros set opposite the name of
that Bank in Column 2 of Part I of Schedule 1 to the extent not cancelled
or reduced under this Agreement.
"Tranche B Final Maturity Date"
means the fifth Anniversary or such later date as may be agreed in
accordance with Clause 5.7 (Extension of Tranche B Availability Period).
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"Tranche B Total Commitments"
means the aggregate for the time being of the Tranche B Commitments, being
euro 4,500,000,000 at the date of this Agreement (up to euro 1,000,000,000
of which is available under the Swingline Facility).
"Treaty"
means the Treaty Establishing the European Community being the Treaty of
Rome of 25th March, 1957, as amended by the Single Xxxxxxxx Xxx 0000 and
the Maastricht Treaty (which was signed at Maastricht on 7th February, 1992
and came into force on 1st November, 1993), as amended from time to time.
"Treaty Country"
means each state described as a participating Member State in any EMU
legislation, whether in the first wave or subsequently.
"U.K." or "United Kingdom"
means the United Kingdom of Great Britain and Northern Ireland.
"United States"
means the United States of America.
"U.S. Borrower"
means a Borrower incorporated in any state of the United States.
"U.S. Qualifying Bank"
has the meaning given to it in Clause 12.3(a) (U.S. Taxes).
"Utilisation"
means:
(a) in the case of a Utilisation comprising Advances, all the Advances
made or to be made; or
(b) in the case of a Utilisation comprising Bills, all the Bills accepted
or to be accepted,
following the giving by a Borrower of a Request for those Advances or
Bills.
"Utilisation Date"
means:
(a) in the case of an Advance or Utilisation comprising Advances, the date
for the making of the relevant Advance or Advances; and
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(b) in the case of a Xxxx or Utilisation comprising Bills, the date for
the acceptance of the relevant Xxxx or Bills.
1.2 Construction
(a) In this Agreement, unless the contrary intention appears, a reference to:
(i) a "month" is a reference to a period starting on one day in a
calendar month and ending on the numerically corresponding day in the
next calendar month, except that, if there is no numerically
corresponding day in the month in which that period ends, that period
shall end on the last Business Day in that calendar month;
a "principal amount" in relation to a Xxxx is a reference to the face
amount of that Xxxx;
a "regulation" includes any regulation, rule, official directive,
request or guideline (whether or not having the force of law but, if
not, being of a type which banks operating in the relevant
jurisdiction generally and the Bank affected in particular are
accustomed to complying with) of any governmental body, agency,
department or regulatory, self-regulatory or other authority or
organisation;
a reference to the currency of a country is to the lawful currency or
currencies of that country for the time being, "(Pounds)" and
"Sterling" is a reference to the lawful currency or currencies of the
United Kingdom for the time being and "U.S. $" and "U.S. Dollars" is
a reference to the lawful currency of the United States for the time
being; and
a "treasury transaction" is a reference to any interest rate or
cross-currency swap;
(ii) a provision of a law is a reference to that provision as amended or
re-enacted;
(iii) a Clause or a Schedule is a reference to a clause of or a schedule
to this Agreement;
(iv) a person includes its permitted successors, transferees and assigns;
(v) a Finance Document or another document is a reference to that Finance
Document or that other document as amended, novated or supplemented;
and
(vi) a time of day is a reference to London time.
(b) Unless the contrary intention appears, a term used in any other Finance
Document or in any notice given under or in connection with any Finance
Document has the same meaning in that Finance Document or notice as in this
Agreement.
(c) The index to and the headings in this Agreement are for convenience only
and are to be ignored in construing this Agreement.
(d) Any provision of this Agreement that states that it will come into effect
as from the Commencement Date shall, to the extent that any such provision
relates to any currency of a state which is not a Treaty Country on the
Commencement Date, come into effect in relation to the currency of such
state on and from the date on which such state becomes a Treaty Country.
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2. THE FACILITIES
2.1 Facilities
The Xxxxx xxxxx to the Borrowers the following facilities:
(a) a committed multicurrency revolving 364 day credit facility, with an
option to draw Term-out Advances, to be designated as Tranche A, under
which the Banks will, when requested by a Borrower, make cash advances
in euros or Optional Currencies to (or accept Bills in Sterling drawn
by) that Borrower on a revolving basis during the Tranche A
Availability Period;
(b) a committed multicurrency revolving credit facility, to be designated
as Tranche B, under which the Banks will, when requested by a
Borrower, make cash advances in euros or Optional Currencies to (or
accept Bills in Sterling drawn by) that Borrower on a revolving basis
during the Tranche B Availability Period; and
(c) a committed swingline advance facility (which is a sub-division of
Tranche B) under which the Swingline Banks will, when requested by a
Borrower, make to that Borrower Swingline Advances in U.S. Dollars,
Sterling or euros during the Tranche B Availability Period except that
Swingline Advances in euros will only be made subject to availability
of same day funding in euros in the London interbank market,
in all cases subject to the terms of this Agreement.
2.2 Overall facility limit
(a) Notwithstanding any other provision of this Agreement, the aggregate
Original Euro Amount of all outstanding Utilisations:
(i) under Tranche A, shall not at any time exceed the Tranche A Total
Commitments at that time;
(ii) under Tranche B (including the Swingline Facility), shall not at any
time exceed the Tranche B Total Commitments at that time;
(iii) under the Swingline Facility, shall not at any time exceed the
Swingline Total Commitments at that time; and
(iv) under all the Facilities, shall not at any time exceed the Total
Commitments.
(b) Notwithstanding any other provision of this Agreement, the aggregate
Original Euro Amount of:
(i) Tranche A Advances made, and the principal amount of Bills under
Tranche A accepted, by a Bank shall not at any time exceed its Tranche
A Commitment at that time;
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(ii) Tranche B Advances (including Swingline Advances) made, and the
principal amount of Bills under Tranche B accepted, by a Bank plus
that Bank's and, if applicable, that Bank's Swingline Affiliate's
outstanding Swingline Advances shall not at any time exceed its
Tranche B Commitment at that time; and
(iii) Swingline Advances made by a Swingline Bank shall not at any time
exceed its Swingline Commitment at that time.
2.3 Number of Requests and Advances
No more than one Request may be delivered on any one day, but that Request
may specify any number of Utilisations and Terms from either Tranche A or
Tranche B (or a Swingline Advance) or all of them. A maximum of 20
Utilisations may be outstanding at any one time (unless the Agent and the
Parent otherwise agree).
2.4 Nature of a Finance Party's rights and obligations
(a) The obligations of a Finance Party under the Finance Documents are several.
Failure of a Finance Party to carry out those obligations does not relieve
any other Party of its obligations under the Finance Documents. No Finance
Party is responsible for the obligations of any other Finance Party under
the Finance Documents.
(b) The rights of a Finance Party under the Finance Documents are divided
rights and accordingly a Finance Party may, except as otherwise stated in
the Finance Documents, separately enforce those rights.
2.5 Obligors' Representative
Each Obligor irrevocably authorises the Parent to give and receive as
representative on its behalf all notices (including Requests) and sign all
documents in connection with the Finance Documents on its behalf (including
Novation Agreements under Clause 9.5(b) (Changes to Borrowers)) and take
such other action as may be necessary or desirable under or in connection
with the Finance Documents and confirms that it will be bound by any action
taken by the Parent under or in connection with the Finance Documents.
2.6 Actions of Parent
The respective liabilities of each of the Obligors under the Finance
Documents shall not be in any way affected by:
(a) any irregularity (or purported irregularity) in any act done by or any
failure (or purported failure) by the Parent; or
(b) the Parent acting (or purporting to act) in any respect outside any
authority conferred upon it by any Obligor; or
(c) the failure (or purported failure) by, or inability (or purported
inability) of, the Parent to inform any Obligor of receipt by it of
any notification under a Finance Document.
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3. PURPOSE
(a) Each Utilisation will be applied:
(i) in the case of Tranche A Advances or Bills, in or towards providing
bridging and liquidity finance for the Group's financial requirements
including, but not limited to, meeting dividend and tax payments and
for backing commercial paper programmes (or refinancing Swingline
Advances); and
(ii) in the case of Tranche B Advances (including Swingline Advances) or
Bills, in or towards the general corporate purposes of the Group
including, but not limited to, acquisitions, capital expenditure,
working capital financing, share buy-backs and other capital
distributions and supporting commercial paper programmes (provided
that a Swingline Advance may not be applied in or towards refinancing
another Swingline Advance).
(b) Without affecting the obligations of any Borrower in any way, no Finance
Party is bound to monitor or verify the application of the proceeds of any
Advance.
4. CONDITIONS PRECEDENT
4.1 Documentary conditions precedent
The obligations of each Finance Party to any Borrower under this Agreement
are subject to the condition precedent that the Agent has notified the
Parent and the Banks that it has received all of the documents set out in
Part I of Schedule 3 in form and substance satisfactory to the Agent. The
Agent will promptly notify the Parent upon such receipt.
4.2 Further conditions precedent
The obligations of each Bank to participate in a Utilisation (or make any
payment under Clause 5.10(b)(ii)) are subject to the further conditions
precedent that on the date of the Request and on its Utilisation Date:
(a) except in the case of a Rollover, the representations and warranties
in Clause 18 (Representations and Warranties) to be repeated in
accordance with Clause 18.2 (Times for making representations and
warranties) on those dates are correct and will be correct immediately
after the Utilisation; and
(b) except in the case of a Rollover, no Default has occurred which is
continuing or would result from the Utilisation and no notice has been
given by the Parent under Clause 9.4 (Mandatory Prepayment Event).
5. ADVANCE FACILITIES
5.1 Receipt of Requests
(a) A Borrower may borrow Advances under Tranche A or Tranche B if the Agent
receives, not later than 3.00 p.m. on the third Business Day before the
proposed Utilisation Date, or, in the
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case of an Advance in Sterling, not later than 3.00 p.m. one Business Day
before the proposed Utilisation Date, a duly completed Request copied to
the US Swingline Agent.
(b) A Borrower may borrow Swingline Advances if:
(i) in the case of Swingline Advances in U.S. Dollars, the US Swingline
Agent receives, not later than 11.00 a.m. (New York City time) on the
proposed Utilisation Date;
(ii) in the case of Swingline Advances in Sterling or euros, the Agent
receives, not later than 9.00 a.m. (London time) on the proposed
Utilisation Date,
a duly completed Request (copied to the Agent or US Swingline Agent as the
case may be).
5.2 Completion of Requests for non Swingline Advances
A Request (other than a Request for a Swingline Advance) will not be
regarded as having been duly completed unless:
(a) the Utilisation Date is a Business Day during the Tranche A
Availability Period (in respect of a Tranche A Advance) or Tranche B
Availability Period (in respect of a Tranche B Advance);
(b) only one currency is specified for each separate Advance, such
currency is the euro or an Optional Currency, and the Requested Amount
for each separate Advance is:
(i) in the case of Advances denominated in euros, a minimum of euro
100,000,000 or, if more, in integral multiples of euro
10,000,000; or
(ii) in the case of any currency other than the euro, a minimum
Original Euro Amount of euro 100,000,000 or, if more, in
integral multiples of euro 10,000,000; or
(iii) the undrawn balance of the Tranche A Total Commitments or the
Tranche B Total Commitments (as the case may be); or
(iv) such other amount as the Agent and the Parent may agree,
and the Agent and the Parent may agree to round the amount of Advances
which are not denominated in euros on such basis as they may
reasonably consider to be appropriate;
(c) only one Term or, in the case of Term-out Advances, Interest Period,
for each separate Advance is specified which:
(i) does not overrun the Tranche A Term Date (in respect of a
Tranche A Advance (other than a Term-out Advance)) or the
Tranche B Final Maturity Date (in respect of a Tranche B
Advance); and
(ii) is a period of one month, two, three or six months (which, in
the case of Term-out Advances only, does not overrun the third
Anniversary) or, in any case,
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such other period as all the banks may previously have agreed for
the purposes of such Advance; and
(d) the currencies specified are either euros or subject to Clause
11.4(c) (Currency), Optional Currencies.
5.3 Completion of Requests for Swingline Advances
A Request for Swingline Advances will not be regarded having been duly
completed unless:
(a) the Utilisation Date is:
(i) in the case of Swingline Advances in U.S. Dollars, a New York
Business Day; or
(ii) in the case of Swingline Advances in Sterling or euros, a
Business Day,
in each case falling before the Tranche B Final Maturity Date;
(b) it is specified that the Swingline Advances are to be made in U.S.
Dollars, Sterling or euros under the Swingline Facility;
(c) the Requested Amount is a minimum Original Euro Amount of euro
10,000,000 or such other amount as the Agent or, as the case may be,
US Swingline Agent and the relevant Borrower may agree which, if
borrowed, would not cause the Original Euro Amount of all Utilisations
under Tranche B to exceed the Tranche B Total Commitments;
(d) only one Term is specified, which:
(i) does not overrun the Tranche B Final Maturity Date; and
(ii) is a period not exceeding 7 days.
5.4 Amount of each Bank's Advance
The amount of a Bank's Advance will be the proportion of the Requested
Amount which:
(a) in the case of a Tranche A Advance, its Tranche A Commitment bears to
Tranche A Total Commitments;
(b) in the case of a Tranche B Advance, its Tranche B Commitment bears to
the Tranche B Total Commitments; and
(c) in the case of a Swingline Advance, its Swingline Commitment bears to
the Swingline Total Commitments,
in each case on the date of receipt of the relevant Request.
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5.5 Notification of the Banks
The Agent (or, in the case of Swingline Advances in U.S. Dollars, the US
Swingline Agent) will promptly notify each Bank (or, as the case may be,
Swingline Bank) of the details of the requested Advances and the amount of
its Advance.
5.6 Payment of Proceeds
Subject to the terms of this Agreement, each Bank (or, as the case may be,
Swingline Bank) will make its Advance available to the Agent (or, in the
case of Swingline Advances in U.S. Dollars, the US Swingline Agent) for the
Borrower for value on the relevant Utilisation Date.
5.7 Extension of Tranche B Availability Period
The Tranche B Final Maturity Date in respect of each Bank's Tranche B
Commitment may, at the Parent's request, be extended from time to time for
any period up to a date falling no later than seven years from the Signing
Date. However, each Bank may, in its sole discretion, decline to extend
the Tranche B Maturity Date in respect of its own Tranche B Commitment, in
which case:
(a) the Tranche B Commitment of that Bank will automatically cancel on the
then applicable Tranche B Final Maturity Date; and
(b) that Bank will be repaid in full upon the then applicable Tranche B
Final Maturity Date and will cease to be a Bank at such time,
irrespective of whether any other Bank has agreed to extend the Tranche B
Availability Period in respect of its own Tranche B Commitment.
5.8 Currency and limit on ECU drawings
No Request may specify an Advance or Advances denominated in ECU to be
drawn down on the same day in an aggregate principal amount exceeding ECU
1,000,000,000, and in any event not more than ECU 2,000,000,000 of Advances
denominated in ECU may be outstanding at any one time (but this Clause 5.8
does not apply after the Commencement Date).
5.9 Currency of Term-out Advances
Subject to Clause 11.4 (Currency), once the currency of a Term-out Advance
has been selected in the applicable Request, it will remain in that
currency throughout its Term.
5.10 Term-out Advances in Optional Currencies
(a) If a Term-out Advance is denominated in an Optional Currency (other than an
Optional Currency that is redenominated under Clause 11.4 (Currency)),
there shall be calculated in respect of each applicable Interest Period the
difference between the amount of the Term-out Advance (in that Optional
Currency) for the current Interest Period and for the next Interest Period.
The amount of the Term-out Advance for the next Interest Period will be
determined by notionally converting into that Optional Currency the
Original Euro Amount of the Term-
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out Advance on the basis of the Agent's Spot Rate of Exchange three
Business Days before the start of that Interest Period.
(b) At the end of the current Interest Period (but subject always to paragraph
(c) below):
(i) if the amount of the Term-out Advance for the next Interest Period is
less than for the preceding Interest Period, the relevant Borrower
shall repay the difference; or
(ii) if the amount of the Term-out Advance for the next Interest Period is
greater, each Bank shall, provided the conditions specified in Clause
4.2 (Further Conditions Precedent) are satisfied, forthwith make
available to the Agent for the relevant Borrower its participation in
the difference.
(c) If the Agent's Spot Rate of Exchange for the next Interest Period shows an
appreciation or depreciation of the Optional Currency against the euro of
less than five per cent. when compared with the Original Exchange Rate, no
amounts are payable in respect of the difference. In this Clause 5.10 and
in Clause 5.11 (Prepayments and repayments) "Original Exchange Rate" means
the Agent's Spot Rate of Exchange used for determining the amount of the
Optional Currency for the Interest Period which is the later of the
following:
(i) the first Interest Period applicable to the Term-out Advance; and
(ii) the most recent Interest Period immediately prior to which a
difference was required to be paid under this Clause 5.10.
5.11 Prepayments
If a Term-out Advance is to be prepaid by reference to an Original Euro
Amount, the Optional Currency amount to be prepaid shall be determined by
reference to the Agent's Spot Rate of Exchange last used for determining
the Optional Currency amount of that Term-out Advance under this Clause 5
or, if applicable, the Original Exchange Rate (as defined in Clause 5.10
(Term-out Advances in Optional Currencies)).
5.12 Notification
The Agent shall notify the Banks and the Parent of Optional Currency
amounts (and the applicable Agent's Spot Rate of Exchange) promptly after
they are ascertained.
6. XXXX FACILITY
6.1 Receipt of Requests
Each Borrower may utilise the Xxxx Facility under Tranche A or Tranche B if
the Agent receives, not later than 10.00 a.m. on the Business Day before
the proposed Utilisation Date, a duly completed Request.
6.2 Form of Requests
A Request will not be regarded as being duly completed unless:
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(a) the Utilisation Date is a Business Day;
(b) the Requested Amount is a minimum of (Pounds)50,000,000 (or the
undrawn balance of the Tranche A Total Commitments or Tranche B Total
Commitments as the case may be) or such other amount as the Agent and
the Borrower may agree; and
(c) only one Term is specified which:
(i) does not overrun the Tranche A Term Date (in respect of Tranche A
Bills) or the Tranche B Final Maturity Date (in respect of
Tranche B Bills); and
(ii) is a period of between 14 days and 187 days.
6.3 Amount of Bills to be accepted by each Bank
The aggregate principal amount of the Bills to be accepted by a Bank will
be the proportion of the Requested Amount which:
(a) in the case of Tranche A Bills, its Tranche A Commitment bears to the
Tranche A Total Commitments; and
(b) in the case of Tranche B Bills, its Tranche B Commitment bears to the
Tranche B Total Commitments,
in each case on receipt of the relevant Request.
6.4 Notification of the Banks
The Agent shall, not later than 1.00 p.m. on the Business Day before the
proposed Utilisation Date, notify each Bank of the details of the requested
Bills and the aggregate principal amount of the Bills to be accepted by it.
6.5 Acceptance of Bills
(a) The Agent shall, not later than 11.00 a.m. on the proposed Utilisation
Date, deliver to each Bank Bills completed in accordance with Clause 7.1
(Holding and completion of Bills).
(b) Each Bank shall accept the Bills delivered to it in accordance with
paragraph (a) above by the proposed Utilisation Date.
(c) The Agent shall, not later than 11.30 a.m. on the proposed Utilisation
Date, notify the Parent and each Bank of the applicable EBDR.
(d) Subject to the terms of this Agreement, each Bank shall pay to the Agent
for the relevant Obligor an amount equal to:
(i) the amount which the Bank would have received as the proceeds of
discounting if it had discounted the Bills accepted by it at the
applicable EBDR; less
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(ii) commission calculated at the Acceptance Commission Rate on the
aggregate principal amount of those Bills.
6.6 Advances as an alternative
(a) If it is unlawful, impracticable or contrary to the Bank of England's
limits on the discounting of Bills applicable to any Bank for a Bank to
accept any Bills, or if a Bank's acceptances are ineligible for discounting
at the Bank of England, then it may notify the Agent accordingly by no
later than 4.00 p.m. on the Business Day before the proposed Utilisation
Date.
(b) If a Bank notifies the Agent in accordance with paragraph (a) above, then,
subject to the terms of this Agreement, the Bank shall instead make an
Advance in accordance with Clause 5 (Advance Facilities) in Sterling on the
relevant Utilisation Date in a principal amount equal to the aggregate
principal amount of the Bills which it would otherwise have been obliged to
accept pursuant to this Clause 6 (Xxxx Facility) and for a Term equal to
the Term of those Bills.
7. BILLS
7.1 Holding and completion of Bills
(a) Each Borrower shall ensure that the Agent has a sufficient stock of Bills
before delivering any Request for a Utilisation comprising Bills.
(b) Each Xxxx shall:
(i) be drawn by the Borrower in its own favour and endorsed by it in
blank;
(ii) be undated;
(iii) have the Maturity Date, the drawee and the face amount left blank;
and
(iv) be claused in a manner which complies with the Bank of England's
requirements for Eligible Bills at that time.
(c) Subject to the terms of this Agreement, the Agent shall and is irrevocably
authorised by the Borrowers to:
(i) sign each Xxxx on behalf of the Borrower concerned and date it with
its Utilisation Date;
(ii) insert in each Xxxx the name of the Bank on which it is drawn, its
face amount and its Maturity Date; and
(iii) deliver each completed Xxxx to the Bank on which it is drawn for
acceptance in accordance with this Agreement.
(d) The Agent shall at the request of a Borrower notify that Borrower what
stock of Bills (and in what denominations) are held by the Agent.
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7.2 Rounding of principal amount of Bills
If necessary, the Agent may round the principal amount of the relevant
Bills to be accepted by each Bank to ensure that each Xxxx has a principal
amount of an integral multiple of (Pounds)10,000, being not less than
(Pounds)250,000 nor more than (Pounds)5,000,000.
7.3 Discounting of Bills
Each Bank may arrange for a Xxxx accepted by it to be discounted on its
behalf in the London discount market or elsewhere or discount the Xxxx
itself.
7.4 Information relating to Bills
Each Borrower shall, promptly on request by a Finance Party, supply to the
Agent for that Finance Party any information relating to any Xxxx
(including the underlying trade transaction for that Xxxx) as that Finance
Party may reasonably require or which may be required by the Bank of
England or any other fiscal or monetary authority in the U.K.
7.5 Eligible Bills
Each Borrower shall ensure that any Xxxx drawn by it and accepted by a Bank
is, assuming that the relevant Bank is a bank whose acceptances are then
being treated as eligible acceptances by the Bank of England, eligible for
rediscounting at the Bank of England.
8. REPAYMENT
8.1 Repayment of Tranche A Advances
(a) Each Borrower shall repay each Tranche A Advance made to it in full on its
Maturity Date to the Agent for the relevant Bank but since Tranche A is
available on a revolving basis amounts repaid may be reborrowed subject to
the terms of this Agreement. Subject to paragraph (b) below, no Tranche A
Advance may be outstanding after the Tranche A Term Date.
(b) At any time and from time to time prior to the Tranche A Term Date, any
Borrower may, by delivery of a duly completed Request to the Agent under
Clause 5 (Advance Facilities) (who shall send a copy of the same to the
Banks), elect to draw one or more Advances (each a "Term-out Advance")
under Tranche A with a Maturity Date after the Tranche A Term Date. No
Term-out Advance, once repaid or prepaid, may be reborrowed (other than
under Clause 5.10 (b) (Term-out Advances in Optional Currencies)).
(c) No Tranche A Advance, other than a Term-out Advance, may be outstanding
after the Tranche A Term Date. No Term-out Advance may be outstanding
after the date falling on the third Anniversary.
8.2 Repayment of Tranche B Advances
Each Borrower shall repay each Tranche B Advance made to it in full on its
Maturity Date to the Agent for the relevant Banks but since Tranche B is
available on a revolving basis amounts repaid may be reborrowed subject to
the terms of this Agreement. No Tranche B Advance may be outstanding after
the Tranche B Final Maturity Date.
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8.3 Payment of Bills
Each Borrower shall pay an amount equal to the principal amount of each
Xxxx on its Maturity Date to the Agent for the relevant Bank. No Tranche A
Xxxx may be outstanding after the Tranche A Term Date and no Tranche B Xxxx
may be outstanding after the Tranche B Final Maturity Date.
8.4 Repayment of Swingline Advances
(a) Each Borrower shall repay each Swingline Advance made to it on its Maturity
Date to the Agent or, in the case of Swingline Advances in U.S. Dollars,
the US Swingline Agent for the Swingline Banks. No Swingline Advance may
be outstanding after the Tranche B Final Maturity Date.
(b) Each Swingline Advance shall be repaid on its Maturity Date in accordance
with paragraph (a) above. In the event that a Swingline Advance is not so
repaid each Bank (other than a Swingline Bank) will within four Business
Days of a demand to that effect from the Agent or, as the case may be, the
US Swingline Agent pay to the Agent or, as the case may be, the US
Swingline Agent on behalf of the Swingline Banks and their Swingline
Affiliates an amount equal to its Agreed Percentage of the principal of
such Swingline Advance and accrued interest (including default interest)
thereon to the date of actual payment by such Bank. The relevant Borrower
shall forthwith reimburse the Banks (through the Agent or, as the case may
be, the US Swingline Agent) in full for each payment made by the Banks
under this paragraph (b). Each amount the relevant Borrower is required to
reimburse to the Banks under this paragraph (b) shall be deemed to be an
overdue amount under Clause 10.4 (Default Interest) which fell due for
payment by the relevant Borrower on the day on which the payment by the
Banks giving rise to the reimbursement obligation was made and shall accrue
default interest under Clause 10.4 (Default Interest) accordingly.
9. PREPAYMENT AND CANCELLATION
9.1 Automatic Cancellation of the Total Commitments
(a) The undrawn Tranche A Commitment of each Bank shall be automatically
cancelled at the close of business in London on the last day of the Tranche
A Availability Period.
(b) The Tranche B Commitment of each Bank (including the Swingline Commitments
of the Swingline Banks) shall be automatically cancelled at the close of
business in London on the last day of the Tranche B Availability Period.
9.2 Voluntary Cancellation
(a) The Parent may, by giving not less than five days' prior written notice to
the Agent specifying the relevant Tranche(s), cancel the unutilised portion
of the Tranche A Total Commitments or the Tranche B Total Commitments or
both, in whole or in part (but, if in part, in a minimum amount of euro
50,000,000 and in integral multiples of euro 10,000,000 in aggregate for
both Tranches). Any cancellation in part of the Tranche B Total Commitments
shall be applied against the Tranche B Commitment of each Bank pro rata.
Any cancellation in part of the
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Tranche B Total Commitments shall be applied against the Tranche B
Commitment of each Bank pro rata.
(b) Whenever part of the Tranche B Total Commitments are cancelled, the
Swingline Commitments shall not be cancelled unless (i) the amount of the
Swingline Total Commitments would exceed the Tranche B Total Commitments
after such cancellation or (ii) the Swingline Commitment of any Swingline
Bank would exceed its Tranche B Commitment after such cancellation. In any
such case, the Swingline Total Commitments shall, at the same time as the
cancellation of the Tranche B Total Commitments takes effect, be cancelled
by such amount as is necessary to ensure that after the relevant
cancellation of the Tranche B Total Commitments the Swingline Total
Commitments do not exceed the Tranche B Total Commitments and the Swingline
Commitment of each Swingline Bank does not exceed its Tranche B Commitment.
9.3 Voluntary prepayment
(a) Any Borrower may, by giving not less than five days' prior notice to the
Agent, prepay without premium or penalty the whole or any part of any
Advance made to it under Tranches A or B (but, if in part, in an aggregate
minimum Original Euro Amount, taking all prepayments made by all the
Borrowers under both Tranches on the same day together, of euro 50,000,000
and in integral multiples of euro 10,000,000).
(b) Any voluntary prepayment under paragraph (a) above will:
(i) be applied against Tranche A or B in such proportions as may be
specified by the Borrower in the notice of prepayment or, if not
specified, against Tranche A; and
(ii) be applied against all the Advances of all the Banks in the relevant
Tranche(s) pro rata.
9.4 Mandatory Prepayment Event
If at any time any single person, or group of persons acting in concert (as
defined in the City Code on Takeovers and Mergers), acquires control (as
defined in Section 416 of the Income and Corporation Taxes Act 1988) of the
Parent then the Parent will notify the Agent within thirty days and the
Agent will, if instructed to do so by the Majority Banks, by notice to the
Parent given no earlier than ninety days after the date that notice is
given to the Agent:
(a) call for prepayment of all the Advances on such date as it may specify
in such notice whereupon all the Advances shall become due and payable
on such date together with accrued interest and any other sums then
owed by the Obligors under the Finance Documents;
(b) call for each Borrower to perform its obligations under Clause 8.3
(Payment of Bills) in respect of all outstanding Bills on such date as
it may specify in such notice as if such date were the Maturity Date
of each of those Bills; and
(c) declare that the Total Commitments shall be cancelled, whereupon the
Total Commitments shall be cancelled and the Commitment of each Bank
shall be cancelled and reduced to zero.
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9.5 Changes to Borrowers
(a) Any Borrower (other than the Parent) in respect of which no Utilisation,
interest or related amount is outstanding may, at the request of the
Parent, cease to be a Borrower by giving not less than two Business Days'
notice to the Agent, which, upon taking effect, shall discharge that
Borrower's obligations under this Agreement. No such discharge will take
effect, however, if at the time or immediately thereafter any Default has
occurred which is continuing.
(b) Any Borrower (the "Existing Borrower") will be released from its
obligations under this Agreement as a Borrower (and thereupon cease to be a
"Borrower") upon another Borrower (the "Substitute Borrower") assuming the
obligations in respect thereof of the Existing Borrower provided that:
(i) any such substitution shall take effect on and from the later of the
day upon which the Agent notifies the Parent in writing that it is
satisfied with the compliance with the matters set out in paragraph
(b)(iii) below and the date for substitution specified in the relevant
notice under paragraph (b)(ii) below;
(ii) notice of the proposed substitution has been delivered by the Parent
to the Agent not less than two Business Days prior to the proposed
substitution; and
(iii) the Substitute Borrower enters into a Novation Agreement with the
Existing Borrower, the Parent and the Agent on behalf of the Finance
Parties in the form of Part III of Schedule 6 together with such
amendments as the Agent may, at the request of the Parent, approve.
Each Bank authorises the Agent to sign on its behalf any Novation Agreement
entered into in accordance with this paragraph (b).
9.6 Right of prepayment and cancellation
If any Borrower is required to pay or is notified by any Bank in writing
that it will be required to pay any amount to a Bank under Clause 12
(Taxes) or Clause 15 (Increased Costs), or if circumstances exist such that
a Borrower will be required to pay any amount to a Bank under Clause 12
(Taxes), the Parent may, whilst the circumstances giving rise or which will
give rise to the requirement continue, serve a notice of prepayment and
cancellation on that Bank through the Agent. On the date falling three
Business Days after the date of service of the notice:
(a) each Borrower shall prepay all outstanding Advances made to it by that
Bank;
(b) each Borrower shall perform its obligations under Clause 8.3 (Payment
of Bills) in respect of all outstanding Bills accepted by that Bank as
if such third Business Day were the Maturity Date of each of those
Bills; and
(c) the Bank's Tranche A Commitment, and its Tranche B Commitment
(including its Swingline Commitment (if any)) shall be permanently
cancelled on the date of service of the notice.
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9.7 Miscellaneous provisions
(a) Any notice of prepayment and/or cancellation under this Agreement is
irrevocable. The Agent shall notify the Banks promptly of receipt of any
such notice.
(b) All prepayments under this Agreement shall be made together with accrued
interest on the amount prepaid and any other amounts due under this
Agreement in respect of that prepayment (including, but not limited to, any
amounts payable under Clause 25.2(b) (Other indemnities) if not made on a
Maturity Date for the relevant Tranche A Advance, Tranche B Advance or
Swingline Advance).
(c) No prepayment or cancellation is permitted except in accordance with the
express terms of this Agreement.
(d) Subject to the terms of this Agreement, any amount prepaid under Clause 9.3
(Voluntary prepayment) in respect of Tranche A (other than in respect of a
Term-out Advance) or Tranche B may be reborrowed. No amount of the Tranche
A Total Commitments or Tranche B Total Commitments (including the Swingline
Total Commitments) cancelled under this Agreement may subsequently be
reinstated.
10. INTEREST
10.1 Interest Periods for Term-Out Advances
The life of each Term-out Advance is divided into successive periods (each
an "Interest Period") for the calculation of interest. The first Interest
Period will be the period selected in the Request for that Term-out Advance
and each subsequent Interest Period will be the period selected by the
relevant Borrower by notice to the Agent received not later than 3.00 p.m.
on the third Business Day before the end of the then current Interest
Period or, in the case of a Term-out Advance in Sterling, not later than
3.00 p.m. on the day before the last day of the then current Interest
Period (being one month, two, three or six months or in any case such other
period as the Agent and all the Banks may agree from time to time which
does not overrun the third Anniversary). If no such selection notice is
received within the time limit mentioned above, the new Interest Period
will be three months or such shorter period as is required to ensure that
it does not overrun the third Anniversary.
10.2 Interest rate for all Advances
(a) The rate of interest on each Tranche A Advance (except a Term-out Advance)
and Tranche B Advance for its Term and for each Term-out Advance for its
Interest Period is the rate per annum determined by the Agent to be the
aggregate of:
(i) the Margin;
(ii) LIBOR; and
(iii) the MLA Cost, if applicable.
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(b) The rate of interest on each Swingline Advance during its Term is the rate
per annum determined by the Agent or, in respect of Swingline Advances in
U.S. Dollars, the US Swingline Agent, to be the Swingline Rate for each day
during its Term.
10.3 Due dates
Except as otherwise provided in this Agreement, accrued interest on each
Advance is payable by the relevant Borrower on its Maturity Date (or the
last day of an Interest Period for a Term-out Advance) and also, in the
case of any Advance with a Term or Interest Period longer than six months,
at six-monthly intervals during its Term or Interest Period for so long as
the Term or Interest Period continues.
10.4 Default interest
(a) If a Borrower fails to pay any amount payable by it under this Agreement,
it shall forthwith on demand by the Agent pay interest on the overdue
amount from the due date up to the date of actual payment, both before and
after judgment, at a rate (the "default rate") determined by the Agent or,
as the case may be, the US Swingline Agent to be one per cent. per annum
above the rate which would have been payable if the overdue amount had,
during the period of non-payment, constituted a Tranche A Advance in the
currency of the overdue amount for such successive Terms of such duration
as the Agent may determine (each a "Designated Term") provided that, in the
case of principal falling due before its Maturity Date, the default rate up
to that Maturity Date will be one per cent. per annum above the rate
applicable to that principal immediately before it fell due.
(b) The default rate will be determined on each Business Day or the first day
of, or two Business Days before the first day of, the relevant Designated
Term, as appropriate.
(c) If the Agent or, as the case may be, the US Swingline Agent determines that
deposits in the currency of the overdue amount are not at the relevant time
being made available by the Reference Banks to leading banks in the London
interbank market, the default rate will be determined by reference to the
cost of funds to each Bank from whatever sources it may reasonably select
after consultation with the Reference Banks.
(d) Default interest will be compounded at the end of each Designated Term.
10.5 Notification of rates of interest
The Agent or, as the case may be, the US Swingline Agent will promptly
notify each relevant Party of the determination of a rate of interest under
this Agreement.
11. PAYMENTS
11.1 Place of Payment
All payments by an Obligor or a Bank under this Agreement shall be made to
the Agent or (if the payment relates to Swingline Advances in U.S. Dollars)
the US Swingline Agent to its account at such office or bank in the
principal financial centre of the country of the currency concerned (or, in
the case of euros, in the principal financial centre of such of the Treaty
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Countries or London as it may reasonably specify) as it may notify to the
Obligor or Bank for this purpose.
11.2 Funds
Payments under this Agreement to the Agent or (if the payment relates to
Swingline Advances in U.S. Dollars) the US Swingline Agent shall be made
for value on the due date at such times and in such funds as it may
specify to the Party concerned as being customary at the time for the
settlement of transactions in the relevant currency in the place for
payment.
11.3 Distribution
(a) Each payment received by the Agent or, as the case may be, the US
Swingline Agent, under this Agreement for another Party shall, subject to
paragraphs (b) and (c) below, be made available by the Agent or, as the
case may be, the US Swingline Agent to that Party by payment (on the date
and in the currency and funds of receipt) to its account with such bank in
the principal financial centre of the country of the relevant currency
(or, in the case of euros, in the principal financial centre of such of
the Treaty Countries or London as the Agent or, as the case may be, the US
Swingline Agent, may reasonably specify) as it may notify to the Agent or,
as the case may be, the US Swingline Agent, for this purpose by not less
than five Business Days' prior notice.
(b) The Agent or, as the case may be, the US Swingline Agent may apply any
amount received by it for an Obligor in or towards payment (on the date
and in the currency and funds of receipt) of any amount due from an
Obligor under this Agreement or in or towards the purchase of any amount
of any currency to be so applied.
(c) Where a sum is to be paid under this Agreement to the Agent or, as the
case may be, the US Swingline Agent for the account of another Party, the
Agent or, as the case may be, the US Swingline Agent is not obliged to pay
that sum to that Party until it has established that it has actually
received that sum. The Agent or, as the case may be, the US Swingline
Agent may, however, assume that the sum has been paid to it in accordance
with this Agreement and, in reliance on that assumption, make available to
that Party a corresponding amount. If the sum has not been made available
but the Agent or, as the case may be, the US Swingline Agent has paid a
corresponding amount to another Party, that Party shall forthwith on
demand refund the corresponding amount to the Agent or, as the case may
be, the US Swingline Agent, together with interest on that amount from the
date of payment to the date of receipt, calculated at a rate reasonably
determined by the Agent or, as the case may be, the US Swingline Agent, to
reflect its cost of funds.
11.4 Currency
(a) In this Agreement:
(i) a repayment or prepayment of an Advance is payable in the currency
in which the Advance is denominated;
(ii) interest is payable in the currency in which the relevant amount in
respect of which it is payable is denominated;
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(iii) amounts payable in respect of costs, expenses, taxes and the like
are payable in the currency in which they are incurred; and
(iv) any other amount payable under this Agreement is, except as
otherwise provided in this Agreement, payable in euros.
(b) Until the Commencement Date, all references to euros will be construed as
references to ECU and will be payable in or calculated by reference to ECU
at the rate of one ECU for one euro.
(c) On and after the Commencement Date:
(i) any Advance in the currency of a Treaty Country will be made in the
euro unit;
(ii) each obligation under this Agreement which has been denominated in a
national currency unit shall only be redenominated into the euro
unit at the time provided for and in accordance with EMU
legislation; and
(iii) any amount payable by the Agent to the Banks under this Agreement in
the currency of a Treaty Country will be paid in the euro unit.
(d) If and to the extent that any EMU legislation provides that an amount
denominated either in the euro unit or in the national currency unit of a
given Treaty Country and payable within that Treaty Country by crediting
an account of the creditor can be paid by the debtor either in the euro
unit or in that national currency unit, each Party shall be entitled to
pay or repay that amount either in the euro unit or in the national
currency unit.
11.5 Set-off and counterclaim
All payments made by an Obligor under this Agreement shall be made without
set-off or counterclaim.
11.6 Non-Business Days
(a) If a payment under this Agreement is due on a day which is not a Business
Day, the due date for that payment shall instead be the next Business Day
in the same calendar month (if there is one) or the preceding Business Day
(if there is not). If, however, the extension of the due date would mean
that a Xxxx would have a Term of more than 187 days, then the due date for
that payment shall instead be the preceding Business Day.
(b) During any extension of the due date for payment of any principal under
this Clause 11.6 interest is payable on the principal at the rate payable
on the original due date.
11.7 Partial payments
If the Agent receives a payment insufficient to discharge all the amounts
then due and payable by an Obligor under this Agreement, the Agent shall
apply that payment towards the obligations of the Obligors under this
Agreement in the following order:
(a) first, in or towards payment pro rata of any unpaid costs, fees and
expenses of the Agent under this Agreement;
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(b) secondly, in or towards payment of any accrued fees due but unpaid
under Clause 22.3 (Up-front fee);
(c) thirdly, in or towards payment pro rata of any accrued fees due but
unpaid under Clauses 22.1 (Commitment fee) and 22.4 (Utilisation fee);
(d) fourthly, in or towards payment pro rata of any interest due but
unpaid under this Agreement;
(e) fifthly, in or towards payment pro rata of any principal due but
unpaid under this Agreement; and
(f) sixthly, in or towards payment pro rata of any other sum due but
unpaid under this Agreement.
The Agent shall, if so directed by all the Banks, vary the order set out in
paragraphs (c), (d) and (e) above.
12. TAXES
12.1 Gross-up
(a) All payments by an Obligor under the Finance Documents shall be made free
and clear of and without deduction for or on account of any Applicable
Taxes, except to the extent that the Obligor is required by law to make
payment subject to any Applicable Taxes. Subject to paragraph (b) below
and Clauses 12.2 (Qualifying Bank) and 12.3 (U.S. Taxes), if any Applicable
Taxes or amounts in respect of Applicable Taxes must be deducted or
withheld from any amounts payable or paid by an Obligor, or paid or payable
by the Agent or, as the case may be, the US Swingline Agent, to a Finance
Party under the Finance Documents, the Obligor shall pay such additional
amounts as may be necessary to ensure that the relevant Finance Party
receives and retains (after any deduction or withholding in respect of such
additional amounts) a net amount equal to the full amount which it would
have received and so retained had payment not been made subject to
Applicable Taxes.
(b) An Obligor is not obliged to pay any additional amount pursuant to
paragraph (a) above in respect of any deduction which would not have been
required if the relevant Finance Party had obtained any exemption from the
deduction or withholding of Applicable Taxes which it is able to obtain.
(c) Each Obligor will, within thirty days of the later of:
(i) any payment being made in respect of which tax is required by law to
be deducted or withheld; or
(ii) the date on which the Obligor is required to account for the amount
deducted or withheld to the appropriate tax authority,
deliver to the Agent for the relevant Bank evidence (including any relevant
tax receipts) that the amount deducted or withheld has been duly accounted
for to the appropriate tax authority.
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12.2 Qualifying Bank
(a) If:
(i) on the Signing Date, any Bank which is a Party on the Signing Date
is not a Qualifying Bank; or
(ii) after the Signing Date, a Bank ceases to be a Qualifying Bank other
than as a result of the introduction of, suspension, withdrawal or
cancellation of, or change in, or change in the official
interpretation, administration or official application of, any law,
regulation having the force of law, tax treaty or any published
practice or published concession of the U.K. Inland Revenue or any
other relevant taxing or fiscal authority in any jurisdiction with
which the relevant Bank has a connection, occurring after the
Signing Date; or
(iii) on the date of any novation, transfer or assignment under Clause 28
(Changes to the Parties), a New Bank (as such term is defined in
that Clause) is not a Qualifying Bank,
then no Obligor shall be liable to pay to that Bank under Clause 12.1
(Gross-up) any amount in respect of taxes levied or imposed by the U.K. or
any taxing authority of or in the U.K. in excess of the amount it would
have been obliged to pay if that Bank had been a Qualifying Bank on such
date or had not ceased to be a Qualifying Bank.
(b) Each Bank represents to each Obligor that on the date on which it becomes
a Party to this Agreement (and on the date that the Bank designates a new
Facility Office) it is a Qualifying Bank and a U.S. Qualifying Bank. Each
Bank will notify the Parent through the Agent as soon as practicable if it
ceases to be a Qualifying Bank or a U.S. Qualifying Bank.
12.3 U.S. Taxes
(a) No U.S. Borrower shall be required to pay any additional amount pursuant
to Clause 12.1 (Gross-up) in respect of United States federal income,
branch profits or franchise taxes with respect to a sum payable by it
pursuant to this Agreement to a Bank if such Bank:
(i) on the date it becomes a Party to this Agreement or has designated a
new Facility Office either:
(1) in the case of a Bank which is not a United States person (as
such term is defined in Section 7701(a)(30) of the Code), is not
entitled to submit a Form 1001 or Form W-8 (relating to such
Bank and claiming a complete exemption from withholding on
interest payable pursuant to this Agreement) or a Form 4224
(relating to interest payable pursuant to this Agreement) (or
any successor forms) with respect to interest payable pursuant
to this Agreement; or
(2) in the case of a Bank which is a United States person, if Clause
12.1 (Gross-up) would apply (other than as a result of the
introduction of, suspension, withdrawal or cancellation of, or
change in the official interpretation, administration or
official application of, any law, regulation having the force
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of law, tax treaty or any published practice or published
concession of the United States Internal Revenue Service or any
other relevant taxing or fiscal authority in any jurisdiction
with which the relevant Bank has a connection, occurring after
the date the Bank becomes a Party to this Agreement or has
designated a new Facility Office); or
(ii) has failed to submit any form, certificate or other information with
respect to such sum payable that it was required to file pursuant to
paragraph (b) below and is entitled to file under applicable law,
and a Bank (or its Facility Office designated in respect of payments made
by a U.S. Borrower) will be a "U.S. Qualifying Bank" for the purposes of
lending to a U.S. Borrower unless it falls within paragraphs (i) or (ii)
above.
(b) If a Bank is not a United States person (as such term is defined in Section
7701(a)(30) of the Code) it shall (if and to the extent that it is entitled
to do so under applicable law) submit as soon as reasonably practicable in
duplicate to each U.S. Borrower duly completed and signed copies of either
Form 1001 (or, in the case of payment made after 31st December, 1998, Form
W-8) of the United States Internal Revenue Service (relating to such Bank
and claiming complete exemption from withholding on all amounts (to which
such withholding would otherwise apply) to be received by such Bank,
including fees, pursuant to this Agreement in connection with any borrowing
by such U.S. Borrower) as a result of a tax treaty concluded with the
United States or Form 4224 of the United States Internal Revenue Service
(relating to all amounts (to which such withholding would otherwise apply)
to be received by such Bank, including fees, pursuant to this Agreement in
connection with any borrowing by such U.S. Borrower). Thereafter and from
time to time at the request of a U.S. Borrower, such Bank shall (if and to
the extent that it is entitled to do so under applicable law) submit to
each U.S. Borrower such additional duly completed and signed copies of one
or the other such Forms (or such successor Forms as shall be adopted from
time to time by the relevant United States taxation authorities) or any
additional information as may be required under then current United States
law or regulations to claim the inapplicability of or exemption from United
States withholding taxes on payments in respect of all amounts (to which
such withholding would otherwise apply) to be received by such Bank,
including fees, pursuant to this Agreement in connection with any borrowing
by such U.S. Borrower.
(c) If a Bank is a United States person (as such term is defined in Section
7701(a)(30) of the Code) it shall, on the date hereof, and thereafter upon
the request of each U.S. Borrower, submit in duplicate to each U.S.
Borrower a certificate to the effect that it is such a United States person
and shall (if and to the extent that it is entitled to do so under
applicable law) upon the request of a U.S. Borrower submit any additional
information that may be necessary to avoid United States withholding taxes
on all payments, including fees, (to which such withholding would otherwise
apply) to be received pursuant to this Agreement in connection with any
borrowing by such U.S. Borrower.
(d) To the extent that any U.S. Borrower becomes aware of the need for any
other such Form or information it will notify the relevant Banks as soon as
reasonably practicable thereafter and such Bank shall (if and to the extent
that it is entitled to do so under applicable law) submit as soon as
practicable in duplicate to each U.S. Borrower duly completed and signed
copies of any such Form or information.
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12.4 Collecting Agents Rules
In relation to the Facilities, each Bank represents to the Agent that, on
the date on which it becomes a Party to this Agreement, it is:
(a) either:
(i) not resident in the United Kingdom for United Kingdom tax
purposes; or
(ii) a bank as defined in section 840A of the Income and Corporation
Taxes Act 1988 and resident in the United Kingdom; and
(b) beneficially entitled to the principal and interest payable by the
Agent to it under this Agreement,
and it shall forthwith notify the Agent if either representation ceases to
be correct.
12.5 Tax Credit
(a) If an Obligor makes a payment pursuant to Clause 12.1 (Gross up) for the
account of any Finance Party and such Finance Party has received or been
granted a credit against, or relief or remission or repayment of, any tax
paid or payable by it (a "Tax Credit") which is attributable to that
payment or the corresponding payment under the Finance Document such
Finance Party shall, to the extent that it can do so without prejudice to
the retention of the amount of such credit, relief, remission or
repayment, pay to the Obligor concerned such amount as is attributable to
such payments and which will leave the Finance Party (after such payment)
in no better or worse position than it would have been if the Obligor
concerned had not been required to make any deduction or withholding.
(b) Nothing in this Clause 12.5 shall interfere with the right of a Finance
Party to arrange its tax affairs in whatever manner it thinks fit and
without limiting the foregoing no Finance Party shall be under any
obligation to claim a Tax Credit or to claim a Tax Credit in priority to
any other claims, relief, credit or deduction available to it (however,
each Bank shall, if practicable, seek any Tax Credit available to it
consequent upon any deductions for tax being made from any payment to it
under Clause 12.1 (Gross up)). No Finance Party shall be obliged to
disclose any confidential information relating to its tax affairs or any
computations in respect thereof.
(c) If any Finance Party makes any payment to an Obligor pursuant to paragraph
(a) above and that Finance Party (acting reasonably) subsequently
determines that the credit, relief, remission or repayment in respect of
which such payment was made was not available to it or has been withdrawn
from it or that it was unable to use such credit, relief, remission or
repayment in full, the Obligor shall reimburse that Finance Party to the
extent (but not exceeding the relevant payment by that Finance Party under
paragraph (a) above) that it determines (acting reasonably) to have been
required to place it in the same after-tax position as it would have been
in if such credit, relief, remission or repayment had been obtained and
fully used and retained by that Finance Party.
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13. MARKET DISRUPTION
13.1 Absence of quotations
If, in relation to any Advance, LIBOR is to be determined in accordance
with paragraph (b) of its definition but a Reference Bank does not supply
an offered rate by 1.00 p.m. on a Rate Fixing Day, the applicable LIBOR
shall, subject to Clause 13.2 (Market disturbance), be determined on the
basis of the quotations of the remaining Reference Banks.
13.2 Market disturbance
Notwithstanding anything to the contrary herein contained, if and each
time that prior to or on a Utilisation Date relative to an Advance to be
made:
(a) LIBOR is to be determined in accordance with paragraph (b) of its
definition and only one or no Reference Bank supplies a rate for the
purposes of determining LIBOR; or
(b) only one or no Reference Bank supplies a rate for the purposes of
determining EBDR; or
(c) the Agent is notified by the Majority Banks that:
(i) deposits in the currency of that Advance are not in the
ordinary course of business available in the London interbank
market for a period equal to the Term or Interest Period
concerned in amounts sufficient to fund their participations in
that Advance; or
(ii) by reason of circumstances affecting the London interbank
market generally, adequate and fair means do not exist for
ascertaining the LIBOR applicable to such Advance during its
Term or Interest Period or LIBOR does not adequately represent
the cost of funding to the Majority Banks; or
(iii) adequate and fair means do not exist for ascertaining EBDR,
the Agent shall promptly give written notice of such determination or
notification to the Parent and to each of the Banks.
13.3 Alternative Rates
If the Agent gives a notice under Clause 13.2 (Market disturbance):
(a) the Parent and the Banks may (through the Agent) agree that, if not
already drawn, the Advances concerned shall not be borrowed or Bills
should not be drawn; or
(b) in the absence of such agreement:
(i) the Term or Interest Period of the Advances concerned shall be
one month;
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(ii) in the case of Clause 13.2(c) (Market disturbance), the
Advances shall be made in euros, in an amount equal to the
Original Euro Amount of the Advance concerned;
(iii) in the case of Bills where Clauses 13.2(b) and (c)(iii) apply,
the relevant Bills shall not be accepted and the relevant Banks
will instead make an Advance in Sterling in accordance with
Clause 6.6 (Advances as an alternative); and
(iv) during the Term or Interest Period of each Advance concerned
(other than an Advance under (b)(iii) above unless Clause
13.2(a) or (c) (Market Disturbance) applies to that Advance)
the rate of interest applicable to the participation of each
Bank in such Advance shall be the Margin plus, if applicable,
MLA Cost plus the rate per annum notified by the Bank concerned
to the Agent before the last day of such Term or Interest
Period to be that which expresses as a percentage rate per
annum the cost to such Bank of funding its participation in
such Advance from whatever sources it may reasonably select
with a view to providing funding at the lowest reasonably
practicable rate.
14. AVAILABILITY OF CURRENCIES
14.1 Revocation of currency
If the currency selected in accordance with Clause 5.2(b) (Completion of
Requests) is an Optional Currency other than Sterling or U.S. Dollars,
and, before 9.30 a.m. on any Rate Fixing Day relating to the start of any
Term, the Agent receives notice from a Bank that:
(a) it is impossible for that Bank to fund its participation in the
relevant Advance in the relevant Optional Currency during its Term in
the ordinary course of business in the London interbank market;
and/or
(b) the use of the proposed Optional Currency would contravene any law or
regulation,
the Agent shall give notice to the relevant Borrower to that effect before
11.00 a.m. on that day. In this event:
(i) the relevant Borrower and the Bank may agree that the Advance will
not be made; or
(ii) in the absence of agreement:
(1) that Bank's participation in the Advance (or, if more than one
Bank is similarly affected, those Banks' participations in the
Advance) shall be treated as a separate Advance denominated in
Sterling; and
(2) in the definition of "LIBOR" (insofar as it applies to that
Advance) in Clause 1.1 (Definitions) there shall be substituted
for the time "11.00 a.m." the time "1.00 p.m.".
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14.2 ECU
(a) If, at any time prior to the Commencement Date:
(i) the ECU ceases to be utilised as the basic accounting unit of the
European Union, (otherwise than as a result of the introduction of
the euro); or
(ii) the ECU ceases to be used in the European Monetary System
(otherwise than as a result of the introduction of the euro); or
(iii) for reasons affecting the market in ECU generally, ECU are not
freely traded between banks in the London interbank market; or
(iv) it becomes illegal or impossible for payments to be made under this
Agreement in ECU,
then:
(1) the Agent shall notify the Parent and the Banks promptly upon
becoming aware of the event;
(2) the Banks shall not be obliged to make any Advances denominated in
ECU on or after the date of that notification; and
(3) subsequently each amount which would otherwise have been payable by
the Borrowers under this Agreement in ECU shall be paid by the
Borrowers in Sterling or another currency acceptable to the
Majority Banks (the "replacement currency") and the amount of the
replacement currency so payable will be determined in accordance
with paragraph (b) below.
(b) (i) The equivalent in the replacement currency of any Advance in ECU
for the purposes of paragraph (a) above will be calculated by the
Agent as the sum of the equivalent in the replacement currency of
the components of the ECU;
(ii) the components of the ECU for this purpose will be the currency
amounts that were components of the ECU when the ECU was most
recently used in the European Monetary System, except that, if the
ECU is being used for the settlement of transactions by public
institutions of or within the European Community, or was so used
after its most recent use in the European Monetary System, the
components will be:
(1) the currency amounts that are components of the ECU as so used
on the day the calculation of the amount of the replacement
currency is to be made (the "day of valuation"); or
(2) the currency amounts that were components of the ECU when it
was most recently so used, as appropriate;
(iii) the rates to be used by the Agent for the above purposes will be
its rates for the purchase in the London foreign exchange market of
the replacement currency with each
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of the components at or about 11.00 am on the day of valuation for
value on the day the relevant payment in the replacement currency
is due; and
(iv) the day of valuation will be the day determined by the Agent for
the purposes of calculating the equivalent in the replacement
currency of any amount in ECU and will be the day two Business Days
before the relevant payment in the replacement currency is due.
(c) Clauses 14.2 (a) and (b) will not apply after the Commencement Date.
15. INCREASED COSTS
15.1 Increased costs
(a) Subject to Clause 15.2 (Exceptions), the Parent shall within five Business
Days of demand by a Finance Party pay that Finance Party the amount of any
increased cost incurred by it or any of its holding companies as a result
of any change in (or change in any official or judicial interpretation of)
or introduction of any law or regulation (including any relating to
taxation or reserve asset, special deposit, cash ratio, liquidity or
capital adequacy requirements or any other form of banking or monetary
control).
(b) In this Agreement "increased cost" means:
(i) an additional cost incurred by a Finance Party or any of its holding
companies as a result of it performing, maintaining or funding its
obligations under, this Agreement; or
(ii) that portion of an additional cost incurred by a Finance Party or
any of its holding companies in making, funding or maintaining all
or any advances comprised in a class of advances formed by or
including the Advances made or to be made by it under this Agreement
as is attributable to it making, funding or maintaining its
Advances; or
(iii) a reduction in any amount payable to a Finance Party or the
effective return to a Finance Party under this Agreement or on its
capital (or the capital of any of its holding companies); or
(iv) the amount of any payment made by a Finance Party, or the amount of
interest or other return foregone by a Finance Party, calculated by
reference to any amount received or receivable by a Finance Party
from any other Party under this Agreement.
(c) A Finance Party shall notify the Parent promptly upon becoming aware that
it has incurred an increased cost as a result of any law or regulation
referred to in paragraph (a) above and shall provide calculations in
reasonable detail of the basis of such increased cost and its allocation
to this Agreement.
15.2 Exceptions
Clause 15.1 (Increased costs) does not apply to any increased cost:
(a) compensated for by the payment of the MLA Cost; or
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(b) any part of which is attributable to the delay by a Bank in notifying
the Parent of the increased cost; or
(c) attributable to any tax or amounts in respect of tax which must be
deducted from any amounts payable or paid by a Borrower or paid or
payable by the Agent to a Finance Party under the Finance Documents
(or which would have been payable but for Clause 12.2 (Qualifying
Bank)); or
(d) which is, or is attributable to, any tax on the overall net income,
profits or gains of a Bank or any of its holding companies (or the
overall net income, profits or gains of a division or branch of the
Bank or any of its holding companies); or
(e) resulting from a Finance Party breaching a regulation imposed on it
after the Signing Date by any fiscal, monetary or other regulatory
authority; or
(f) which is attributable to the introduction of the euro (other than an
increased cost which the Majority Banks reasonably determine is being
incurred generally and on a consistent basis by banks (or a class of
banks of which a Bank forms part) transacting euro business in the
London interbank market).
16. ILLEGALITY AND MITIGATION
16.1 Illegality
If it becomes unlawful or contrary to any regulation in any jurisdiction
for a Bank to give effect to any of its obligations as contemplated by
this Agreement or to fund or maintain any Advance, then the Bank may
notify the Parent through the Agent accordingly and thereupon:
(a) each Borrower shall, to the extent required and within the period
allowed by such regulation or, if no period is allowed, forthwith:
(i) repay any Advances made to it by that Bank together with all
other amounts payable by it to that Bank under this Agreement;
and
(ii) perform its obligations under Clause 8.3 (Payment of Bills) in
respect of all outstanding Bills accepted by that Bank as if
that day were the Maturity Date of each of those Bills; and
(b) the Bank's Tranche A Commitment and Tranche B Commitment shall be
cancelled.
16.2 Mitigation
Notwithstanding the provisions of Clauses 12 (Taxes), 15 (Increased Costs)
and 16.1 (Illegality), if in relation to a Bank or (as the case may be)
the Agent circumstances arise which would result in:
(a) any deduction, withholding or payment of the nature referred to in
Clause 12 (Taxes); or
(b) any increased cost of the nature referred to in Clause 15 (Increased
Costs); or
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(c) a notification pursuant to Clause 16.1 (Illegality),
then without in any way limiting, reducing or otherwise qualifying the
rights of such Bank or the Agent, such Bank shall promptly upon becoming
aware of the same notify the Agent thereof (whereupon the Agent shall
promptly notify the Parent) and such Bank shall endeavour to transfer its
participation in the Facility and its rights hereunder and under the
Finance Documents to another financial institution or Facility Office not
affected by the circumstances having the results set out in (a), (b) or
(c) above and shall otherwise take such reasonable steps as may be open to
it to mitigate the effects of such circumstances. No Bank, however, is
required to take any action which would be prejudicial to it or which
would conflict with its general banking policies, or give rise to any
material cost or expense.
17. GUARANTEE
17.1 Guarantee
The Parent irrevocably and unconditionally:
(a) as principal obligor, guarantees to each Finance Party prompt
performance by each Borrower (other than the Parent) of all its
obligations under the Finance Documents;
(b) undertakes with each Finance Party that whenever a Borrower does not
pay any amount when due under or in connection with any Finance
Document, the Parent shall upon demand by the Agent given no earlier
than on the expiry of any grace period applicable under Clause 20
(Default) pay that amount as if the Parent instead of the relevant
Borrower were expressed to be the principal obligor; and
(c) indemnifies each Finance Party on demand against any loss or
liability suffered by it if any obligation guaranteed by the Parent
is or becomes unenforceable, invalid or illegal.
17.2 Continuing guarantee
This guarantee is a continuing guarantee and will extend to the ultimate
balance of all sums payable by the Borrowers under the Finance Documents,
regardless of any intermediate payment or discharge in whole or in part.
17.3 Reinstatement
(a) Where any discharge (whether in respect of the obligations of any Borrower
or any security for those obligations or otherwise) is made in whole or in
part or any arrangement is made on the faith of any payment, security or
other disposition which is avoided or must be restored on insolvency,
liquidation or otherwise without limitation, the liability of the Parent
under this Clause 17 shall continue as if the discharge or arrangement had
not occurred (but only to the extent that such payment, security or other
disposition is avoided or restored).
(b) Each Finance Party may concede or compromise any claim that any payment,
security or other disposition is liable to avoidance or restoration.
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17.4 Waiver of defences
The obligations of the Parent under this Clause 17 will not be affected by
any act, omission, matter or thing which, but for this provision, would
reduce, release or prejudice any of its obligations under this Clause 17
or prejudice or diminish those obligations in whole or in part, including
(whether or not known to it or any Finance Party):
(a) any time or waiver granted to, or composition with, any Borrower or
other person;
(b) the taking, variation, compromise, exchange, renewal or release of,
or refusal or neglect to perfect, take up or enforce, any rights
against, or security over assets of, any Borrower or other person or
any non-presentation or non-observance of any formality or other
requirement in respect of any instrument or any failure to realise
the full value of any security;
(c) any incapacity or lack of powers, authority or legal personality of
or dissolution or change in the members or status of a Borrower or
any other person;
(d) any variation (however fundamental) or replacement of a Finance
Document or any other document or security so that references to that
Finance Document in this Clause 17 shall include each variation or
replacement;
(e) any unenforceability, illegality or invalidity of any obligation of
any person under any Finance Document or any other document or
security, to the intent that the Parent's obligations under this
Clause 17 shall remain in full force and its guarantee be construed
accordingly, as if there were no unenforceability, illegality or
invalidity; and
(f) any postponement, discharge, reduction, non-provability or other
similar circumstance affecting any obligation of any Borrower under a
Finance Document resulting from any insolvency, liquidation or
dissolution proceedings or from any law, regulation or order so that
each such obligation shall for the purposes of the Parent's
obligations under this Clause 17 be construed as if there were no
such circumstance.
17.5 Immediate recourse
The Parent waives any right it may have of first requiring any Finance
Party (or any trustee or agent on its behalf) to proceed against or
enforce any other rights or security or claim payment from any person
before claiming from the Parent under this Clause 17.
17.6 Appropriations
Until all amounts which may be or become payable by the Borrowers under or
in connection with the Finance Documents have been irrevocably paid in
full, each Finance Party (or any trustee or agent on its behalf) may:
(a) refrain from applying or enforcing any other moneys, security or
rights held or received by that Finance Party (or any trustee or
agent on its behalf) in respect of those amounts, or apply and
enforce the same in such manner and order as it sees fit (whether
against those amounts or otherwise) and the Parent shall not be
entitled to the benefit of the same; and
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(b) hold in a suspense account (bearing interest at a commercial rate)
any moneys received from the Parent or on account of the Parent's
liability under this Clause 17, without liability to pay interest on
those moneys.
17.7 Non-competition
Until all amounts which may be or become payable by the Borrowers under or
in connection with the Finance Documents have been paid in full, the
Parent shall not, after a claim has been made and by virtue of any payment
or performance by it under this Clause 17:
(a) be subrogated to any rights, security or moneys held, received or
receivable by any Finance Party (or any trustee or agent on its
behalf) or be entitled to any right of contribution or indemnity in
respect of any payment made or moneys received on account of the
Parent's liability under this Clause 17; or
(b) claim, rank, prove or vote as a creditor of any Borrower or its
estate in competition with any Finance Party (or any trustee or agent
on its behalf); or
(c) receive, claim or have the benefit of any payment, distribution or
security from or on account of any Borrower or exercise any right of
set-off as against any Borrower.
The Parent shall within five Business Days of receipt pay or transfer to
the Agent for the Finance Parties any payment or distribution or benefit
of security received by it contrary to this Clause 17.7.
17.8 Additional security
This guarantee is in addition to and is not in any way prejudiced by any
other security now or hereafter held by any Finance Party.
18. REPRESENTATIONS AND WARRANTIES
18.1 Representations and warranties
Each Obligor represents and warrants that:
(a) due incorporation: it has been duly incorporated in accordance with
the laws of its place of incorporation and is validly existing;
(b) powers and authority: this Agreement is within its powers and the
execution, delivery and performance thereof has been duly authorised;
(c) validity: subject to any qualifications as to matters of law in the
relevant forms of opinion referred to in Schedule 3, this Agreement
constitutes its legal, valid and binding obligation; and
(d) no breach: this Agreement and the transactions hereby contemplated do
not and will not contravene in any material respect (i) its
constitutional documents, (ii) any law or
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regulation in its country of incorporation, or (iii) any loan stock,
debenture, mortgage or other contract in respect of any Borrowings to
which it is party;
(e) no Event of Default: no Event of Default has occurred and is
continuing;
(f) accounts: the most recent audited annual consolidated profit and loss
account and balance sheet of the Parent which have been delivered to
the Agent from time to time together with the notes thereto give a
true and fair view of the results of the operations of the Parent and
its Subsidiaries for the period to which they relate and the
financial position of the Parent and its Subsidiaries as at the date
to which they were prepared;
(g) U.S. Borrowers: no U.S. Borrower is an investment company under the
United States Investment Company Act of 1940, as amended, or is
exempt from the provisions of that Act pursuant to an exemption under
that Act, all of the conditions of which have been and are being
fulfilled;
(h) ERISA: if there is a U.S. Borrower, each member of the Controlled
Group is in compliance with the applicable provisions of law,
including ERISA, the Code and the applicable minimum funding standard
requirements of ERISA and the Code with respect to each Plan except
where such non compliance could reasonably be expected not to have a
material adverse effect on the ability of any Obligor to perform its
obligations under the Finance Documents. No Reportable Event which
has or could reasonably be expected to result in any material
liability has occurred with respect to any Plan. No member of the
Controlled Group has:
(i) sought a waiver of the minimum funding standard under Section
412 of the Code in respect of any Plan; or
(ii) made any amendment to any Plan, which has resulted or could
result in the imposition of a lien or the posting of a bond or
other security under ERISA or the Code; and
(i) Margin Stock: none of the proceeds of any Advance shall be used,
directly or indirectly, and whether immediately, ultimately or
incidentally, for any purpose which entails a violation of, or that
is inconsistent with, the provisions of Regulation U or Regulation X
of the regulations of the Board of Governors of the Federal Reserve
System of the United States. None of the Obligors nor any of their
respective Subsidiaries is engaged principally, or as one of its
important activities, in the business of extending credit for the
purpose of buying or carrying "margin stock" (within the meaning of
such Regulation U).
18.2 Times for making representations and warranties
The representation and warranties contained in Clause 18.1:
(a) will be made by the Parent and the Original Borrowers on the Signing
Date;
(b) will be deemed to be repeated by each Obligor on each Utilisation
Date and first day of each Interest Period for Term-out Advances with
reference to the facts and circumstances then existing; and
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(c) will be deemed to be made by an Additional Borrower on the date it
executes a Borrower Accession Agreement under Clause 28.4 (Additional
Borrowers) with reference to the facts and circumstances then
existing.
19. UNDERTAKINGS
19.1 Financial Information
The Parent will supply to the Agent in sufficient copies for the Banks:
(a) as soon as practicable after publication (and in any event within the
periods specified below):
(i) in the case of the Parent, the audited consolidated accounts of
the Group for that financial year, within 180 days of the end of
each of its financial years; and
(ii) in the case of any other Borrower, its unaudited (or, if
available, audited) unconsolidated accounts for that financial
year, within 180 days of the end of each of its financial years;
and
(b) as soon as practicable after publication (and in any event within 90
days of the end of the first half of each of its financial years) the
unaudited consolidated interim accounts of the Group for that half-
year; and
(c) all documents despatched by it to its shareholders (or any class of
them) in their capacity as such as soon as practicable after the time
they are so despatched.
19.2 Authorisations
Each Obligor will promptly obtain, maintain and comply with the terms of
any authorisation required under any law or regulation in any applicable
jurisdiction to enable it to perform its obligations under, or for the
validity or enforceability of, this Agreement in all material respects.
19.3 Pari passu ranking
Each Obligor will procure that its obligations under this Agreement do and
will rank at least pari passu with all its other present and future
unsecured and unsubordinated obligations, except for obligations which are
mandatorily preferred by law.
19.4 Negative Pledge
No Obligor will create or permit to subsist any Security Interest over all
or any part of its assets to secure any Borrowings except for any Permitted
Security Interest.
19.5 Notification of Event of Default
Each Obligor will notify the Agent of the occurrence of any Event of
Default (and the steps, if any, being taken to remedy it) promptly upon
becoming aware of it.
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20. DEFAULT
20.1 Events of Default
Each of the events set out in Clauses 20.2 (Non-Payment) to 20.12 (Material
Adverse Change), both inclusive, is an Event of Default (whether or not
caused by any reason whatsoever outside the control of any Obligor).
20.2 Non-Payment
Any Obligor fails to pay within five Business Days of the Agent giving
notice to the Parent of such non-payment any amount payable by it under
this Agreement in respect of principal or interest at the place at and in
the currency in which it is expressed to be payable.
20.3 Breach of other obligations
Any Obligor fails to comply with any provision of this Agreement (other
than those referred to in Clause 20.2 (Non-Payment)) and, if that default
is capable of remedy, the Obligor fails to cure that default within thirty
days of the Agent giving notice to the Parent requiring remedy.
20.4 Misrepresentation
Any representation or warranty made or repeated in this Agreement is
incorrect in any material respect when made or deemed to be repeated and,
in the case of a matter capable of being remedied, is not remedied within
thirty days of the Agent giving notice to the Parent requiring remedy.
20.5 Cross Acceleration
Any other Borrowings of any Obligor are:
(a) declared due and payable prior to their normal maturity date as a
result of a default (however described) by that Obligor; or
(b) not paid within five Business Days of their due date or, if longer,
within any applicable grace period,
unless, in any such case, the aggregate amount of the Borrowings is less
than euro 50,000,000 or its equivalent or the payment in question is being
contested by the Obligor owing the amount by reason of a bona fide dispute.
20.6 Suspension of payments
Any Obligor is unable to pay its debts as they fall due or suspends making
payments (whether of principal or interest) with respect to all or any
class of its debts as a result of financial difficulties.
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20.7 Insolvency proceedings
A resolution is passed at a meeting of any Obligor for (or to petition
for) its winding up or administration or any Obligor presents any petition
for the winding up or administration of that Obligor or an order for the
winding up or administration of that Obligor is made unless in each case
it is a voluntary solvent winding up, amalgamation, reconstruction or
reorganisation or part of a solvent scheme of arrangement.
20.8 Creditors' arrangements
An Obligor agrees to any kind of composition, rescheduling, scheme,
compromise or arrangement involving that Obligor and its creditors
generally (or any class of them) as a result of financial difficulties.
20.9 Creditors' process
Any administrative or other receiver or any manager of substantially all
of the assets of an Obligor is appointed or an encumbrancer takes
possession of, or any execution or distress is levied against,
substantially all of the assets of any Obligor, in all cases:
(a) in respect of Borrowings in an aggregate principal amount of not less
than euro 50,000,000 or its equivalent; and
(b) which is not paid out or discharged within thirty days after such
appointment, taking of possession or levy.
20.10 Insolvency equivalent
There occurs, in relation to any Obligor, in any country or territory in
which it carries on business or to the jurisdiction of whose courts it or
any of its assets are subject, any event which corresponds in that country
or territory with any of those mentioned in Clauses 20.7 (Insolvency
proceedings), 20.8 (Creditors' arrangements) or 20.9 (Creditors' process)
inclusive above (subject to the same thresholds, grace periods and
exceptions).
20.11 Ownership of Borrowers
Any Borrower ceases to be a wholly-owned Subsidiary of the Parent (unless
the Majority Banks have otherwise agreed).
20.12 Material Adverse Change
There has been a material adverse change in the financial condition of the
Group taken as a whole since the date of the latest annual accounts
delivered to the Agent pursuant to Clause 19.1 (Financial information)
which has had or will have a material adverse effect on the ability of the
Parent to comply with its payment obligations under this Agreement.
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20.13 Acceleration
On and at any time after the occurrence of an Event of Default, provided
that the event is continuing, the Agent may, and shall if so directed by
the Majority Banks, by notice to the Parent:
(a) declare the Advances to be forthwith due and payable together with
interest thereon and all other amounts payable hereunder,
notwithstanding that their respective Maturity Dates may not have
occurred, and the same shall thereupon become due and payable; and/or
(b) declare that each Borrower's obligations under Clause 8.3 (Payment of
Bills) in respect of all outstanding Bills are immediately due and
payable, whereupon they shall become immediately due and payable;
and/or
(c) cancel the Total Commitments (or such part of them as may be
specified in such notice); and/or
(d) demand that all Advances and obligations in respect of Bills be
payable on demand, whereupon they will immediately become payable on
demand.
21. THE AGENTS AND THE JOINT LEAD ARRANGERS
21.1 Appointment and duties of the Agents
Each Finance Party (other than the Agent) irrevocably appoints the Agent
to act as its agent under and in connection with the Finance Documents and
each Swingline Bank appoints the US Swingline Agent to act as its agent in
relation to the US Swingline Facility, and each Finance Party irrevocably
authorises the Agent or, as the case may be, the US Swingline Agent on its
behalf to perform the duties and to exercise the rights, powers and
discretions that are specifically delegated to it under or in connection
with the Finance Documents, together with any other incidental rights,
powers and discretions. The Agent or, as the case may be, the US Swingline
Agent shall have only those duties which are expressly specified in this
Agreement. Those duties are solely of a mechanical and administrative
nature.
21.2 Role of the Joint Lead Arrangers
Except as otherwise provided in this Agreement, the Joint Lead Arrangers
have no obligations of any kind to any other Party under or in connection
with any Finance Document.
21.3 Relationship
The relationship between the Agent or, as the case may be, the US
Swingline Agent and the other Finance Parties is that of agent and
principal only. Nothing in this Agreement constitutes the Agent or, as the
case may be, the US Swingline Agent as trustee or fiduciary for any other
Party or any other person and the Agent or, as the case may be, the US
Swingline Agent need not hold in trust any moneys paid to it for a Party
or be liable to account for interest on those moneys.
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21.4 Majority Banks' directions
The Agent or, as the case may be, the US Swingline Agent will be fully
protected if it acts in accordance with the instructions of the Majority
Banks in connection with the exercise of any right, power or discretion or
any matter not expressly provided for in the Finance Documents. Any such
instructions given by the Majority Banks will be binding on all the Banks.
In the absence of such instructions the Agent or, as the case may be, the
US Swingline Agent may act as it considers to be in the best interests of
all the Banks.
21.5 Delegation
The Agent or, as the case may be, the US Swingline Agent may act under the
Finance Documents through its personnel and agents.
21.6 Responsibility for documentation
Neither the Agent, the US Swingline Agent nor any of the Joint Lead
Arrangers is responsible to any other Party for:
(a) the execution, genuineness, validity, enforceability or sufficiency
of any Finance Document or any other document; or
(b) the collectability of amounts payable under any Finance Document; or
(c) the accuracy of any statements (whether written or oral) made in or
in connection with any Finance Document.
21.7 Default
(a) The Agent or, as the case may be, the US Swingline Agent is not obliged to
monitor or enquire as to whether or not a Default or a Mandatory
Prepayment Event has occurred. Neither the Agent nor the US Swingline
Agent will be deemed to have knowledge of the occurrence of a Default or a
Mandatory Prepayment Event. However, if the Agent or, as the case may be,
the US Swingline Agent receives notice from a Party referring to this
Agreement, describing the Default or Mandatory Prepayment Event and
stating that the event is a Default or a Mandatory Prepayment Event, it
shall promptly notify the Banks.
(b) The Agent or, as the case may be, the US Swingline Agent may require the
receipt of security satisfactory to it, whether by way of payment in
advance or otherwise, against any liability or loss which it will or may
incur in taking any proceedings or action arising out of or in connection
with any Finance Document before it commences these proceedings or takes
that action.
21.8 Exoneration
(a) Without limiting paragraph (b) below, the Agent or, as the case may be,
the US Swingline Agent will not be liable to any other Party for any
action taken or not taken by it under or in connection with any Finance
Document, unless directly caused by its gross negligence or wilful
misconduct.
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(b) No Party may take any proceedings against any officer, employee or agent
of the Agent or, as the case may be, the US Swingline Agent in respect of
any claim it might have against the Agent or, as the case may be, the US
Swingline Agent or in respect of any act or omission of any kind
(including gross negligence or wilful misconduct) by that officer,
employee or agent in relation to any Finance Document.
21.9 Reliance
The Agent or, as the case may be, the US Swingline Agent may:
(a) rely on any notice or document believed by it to be genuine and
correct and to have been signed by, or with the authority of, the
proper person;
(b) rely on any statement made by a director or employee of any person
regarding any matters which may reasonably be assumed to be within
his knowledge or within his power to verify; and
(c) engage, pay for and rely on legal or other professional advisers
selected by it (including those in the Agent's or, as the case may
be, the US Swingline Agent's employment and those representing a
Party other than the Agent or, as the case may be, the US Swingline
Agent).
21.10 Credit approval and appraisal
Without affecting the responsibility of any Obligor for information
supplied by it or on its behalf in connection with any Finance Document,
each Bank confirms that it:
(a) has made its own independent investigation and assessment of the
financial condition and affairs of each Obligor and its related
entities in connection with its participation in this Agreement and
has not relied exclusively on any information provided to it by the
Agent, the US Swingline Agent or a Joint Lead Arranger in connection
with any Finance Document; and
(b) will continue to make its own independent appraisal of the
creditworthiness of each Obligor and its related entities while any
amount is or may be outstanding under the Finance Documents or any
Commitment is in force.
21.11 Information
(a) The Agent or, as the case may be, the US Swingline Agent shall promptly
forward to the person concerned the original or a copy of any document
which is delivered to the Agent or, as the case may be, the US Swingline
Agent by a Party for that person.
(b) The Agent shall promptly supply a Bank with a copy of each document
received by the Agent under Clauses 4 (Conditions Precedent) and 28.4
(Additional Borrowers) upon the request of that Bank.
(c) Except where this Agreement specifically provides otherwise, the Agent or,
as the case may be, the US Swingline Agent is not obliged to review or
check the accuracy or completeness of any document it forwards to another
Party.
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(d) Except as provided above, the Agent or, as the case may be, the US
Swingline Agent has no duty:
(i) either initially or on a continuing basis to provide any Bank with
any credit or other information concerning the financial condition or
affairs of any Obligor or any related entity of any Obligor whether
coming into its possession or that of any of its related entities
before, on or after the date of this Agreement; or
(ii) unless specifically requested to do so by a Bank in accordance with
this Agreement, to request any certificates or other documents from
any Obligor.
21.12 The Agents and the Joint Lead Arrangers individually
(a) If it is also a Bank, each of the Agent, the US Swingline Agent and the
Joint Lead Arrangers has the same rights and powers under this Agreement
as any other Bank and may exercise those rights and powers as though it
were not the Agent, the US Swingline Agent or a Joint Lead Arranger.
(b) Each of the Agent, the US Swingline Agent and the Joint Lead Arrangers
may:
(i) carry on any business with an Obligor or its related entities;
(ii) act as agent or trustee for, or in relation to any financing
involving, an Obligor or its related entities; and
(iii) retain any profits or remuneration in connection with its activities
under this Agreement or in relation to any of the foregoing.
21.13 Indemnities
(a) Without limiting the liability of any Obligor under the Finance Documents,
each Bank shall forthwith on demand indemnify the Agent or, as the case
may be, the US Swingline Agent for its proportion of any liability or loss
incurred by the Agent or, as the case may be, the US Swingline Agent in
any way relating to or arising out of its acting as the Agent or, as the
case may be, the US Swingline Agent, except to the extent that the
liability or loss arises directly from the Agent's or, as the case may be,
the US Swingline Agent's gross negligence or wilful misconduct.
(b) A Bank's proportion of the liability or loss set out in paragraph (a)
above is the proportion which the Original Euro Amount of its
Utilisation(s) bears to the Original Euro Amount of all Utilisation(s)
outstanding on the date of the demand. If, however, no Utilisation(s) are
outstanding on the date of demand, then the proportion will be the
proportion which its Commitment bears to the Total Commitments at the date
of demand or, if the Total Commitments have been cancelled, bore to the
Total Commitments immediately before being cancelled.
(c) The Parent shall within five Business Days of demand reimburse each Bank
for any payment made by it under paragraph (a) above.
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21.14 Compliance
(a) The Agent or, as the case may be, the US Swingline Agent may refrain from
doing anything which might, in its opinion, constitute a breach of any law
or regulation or be otherwise actionable at the suit of any person, and
may do anything which, in its opinion, is necessary or desirable to comply
with any law or regulation of any jurisdiction.
(b) Without limiting paragraph (a) above, the Agent or, as the case may be,
the US Swingline Agent need not disclose any information relating to any
Obligor or any of its related entities if the disclosure might, in the
opinion of the Agent, or, as the case may be, the US Swingline Agent,
constitute a breach of any law or regulation or any duty of secrecy or
confidentiality or be otherwise actionable at the suit of any person.
21.15 Resignation and removal of Agents
(a) The Majority Banks may, by notice to the Agent or, as the case may be, the
US Swingline Agent, remove either or both of them and replace them with a
successor agent approved by the Parent (such approval not to be
unreasonably withheld).
(b) Notwithstanding its irrevocable appointment, the Agent or, as the case may
be, the US Swingline Agent may resign by giving notice to the Banks and
the Parent, in which case the Agent or, as the case may be, the US
Swingline Agent may forthwith appoint one of its Affiliates as successor
Agent, or as the case may be successor US Swingline Agent or, failing
that, the Majority Banks may, with the prior written consent of the Parent
(such consent not to be unreasonably withheld), appoint a successor Agent
or, as the case may be, successor US Swingline Agent.
(c) If the appointment of a successor Agent or, as the case may be, successor
US Swingline Agent is to be made by the Majority Banks under paragraph (b)
above but they have not, within 30 days after notice of resignation,
appointed a successor Agent or, as the case may be, successor US Swingline
Agent which accepts the appointment, the retiring Agent or, as the case
may be, retiring US Swingline Agent may, with the prior written consent of
the Parent (such consent not to be unreasonably withheld), appoint a
successor Agent or, as the case may be, successor US Swingline Agent.
(d) The resignation or removal of the retiring Agent or, as the case may be,
retiring US Swingline Agent and the appointment of any successor Agent or,
as the case may be, successor US Swingline Agent will both become
effective only upon the successor Agent or, as the case may be, successor
US Swingline Agent notifying all the Parties that it accepts the
appointment and provided the successor Agent or, as the case may be,
successor US Swingline Agent has, if required under paragraphs (a), (b) or
(c) above, been approved by the Parent. On giving the notification and
receiving such approval, the successor Agent or, as the case may be,
successor US Swingline Agent will succeed to the position of the retiring
Agent or, as the case may be, retiring US Swingline Agent and the term
"Agent" or, as the case may be, "US Swingline Agent" will mean the
successor Agent or, as the case may be, successor US Swingline Agent.
(e) The retiring Agent or, as the case may be, retiring US Swingline Agent
shall, at its own cost, make available to the successor Agent or, as the
case may be, successor US Swingline Agent such documents and records and
provide such assistance as the successor Agent or, as the case may be,
successor US Swingline Agent may reasonably request for the purposes of
performing
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its functions as the Agent or, as the case may be, the US Swingline Agent
under this Agreement.
(f) Upon its resignation or removal becoming effective, this Clause 21 shall
continue to benefit the retiring Agent or, as the case may be, retiring US
Swingline Agent in respect of any action taken or not taken by it under or
in connection with the Finance Documents while it was the Agent or, as the
case may be, the US Swingline Agent, and, subject to paragraph (e) above,
it shall have no further obligation under any Finance Document.
21.16 Banks
The Agent or, as the case may be, US Swingline Agent may treat each Bank
as a Bank, entitled to payments under this Agreement and as acting through
its Facility Office(s) until it has received notice from the Bank to the
contrary by not less than five Business Days prior to the relevant
payment.
21.17 Chinese Wall
In acting as Agent, US Swingline Agent or Joint Lead Arranger, the agency
and syndications division of each of the Agent, US Swingline Agent and
Joint Lead Arrangers shall be treated as a separate entity from its other
divisions and departments. Any information acquired at any time by the
Agent, US Swingline Agent or any Joint Lead Arranger otherwise than in the
capacity of Agent, US Swingline Agent or Joint Lead Arranger through its
agency and syndications division (whether as financial advisor to any
member of the Group or otherwise) may be treated as confidential by the
Agent, US Swingline Agent or Joint Lead Arranger and shall not be deemed
to be information possessed by the Agent, US Swingline Agent or Joint Lead
Arranger in its capacity as such. Each Finance Party acknowledges that the
Agent, US Swingline Agent and the Joint Lead Arrangers may, now or in the
future, be in possession of, or provided with, information relating to the
Obligors which has not or will not be provided to the other Finance
Parties. Each Finance Party agrees that, except as expressly provided in
this Agreement, neither the Agent, US Swingline Agent nor the Joint Lead
Arrangers will be under any obligation to provide, or under any liability
for failure to provide, any such information.
22. FEES
22.1 Commitment fee
(a) The Parent shall pay to the Agent for distribution to each Bank pro rata
to the proportion its Commitment bears to the Tranche A Total Commitments
or, as the case may be, Tranche B Commitment bears to the Tranche B Total
Commitments, from time to time a commitment fee at the rate of:
(i) 0.035 per cent. per annum in relation to the Tranche A Commitments;
and
(ii) 0.075 per cent. per annum in relation to the Tranche B Commitments,
on, in each case, any undrawn, uncancelled amount of the Tranche A Total
Commitments or the Tranche B Total Commitments, as the case may be, on
each day.
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(b) The commitment fee is calculated and accrues on a daily basis from the
Signing Date and is payable quarterly in arrear with the first payment due
three months after the Signing Date. Accrued commitment fee is also
payable to the Agent for the relevant Bank(s) on the cancelled amount of
its Tranche A Commitment or, as the case may be, Tranche B Commitment at
the time the cancellation takes effect.
22.2 Agent's fee
The Parent shall pay to the Agent for its own account an agency fee in the
amounts and on the dates agreed in the relevant Fee Letter.
22.3 Up-front fee
The Parent shall pay to the Joint Lead Arrangers an up-front fee, in each
case in the amount and on the dates specified in the relevant Fee Letter.
22.4 Utilisation Fee
(a) The Parent shall pay to the Agent for distribution to each Bank (pro rata
to the proportion the principal amount of its outstanding Tranche B
Advances and Bills drawn under Tranche B bears to the aggregate principal
outstanding Tranche B Advances and Bills drawn under Tranche B in each
currency on each day) a utilisation fee on the aggregate principal amount
each day of all outstanding Utilisations under Tranche B at the rate
specified in Column (1) below if on that day the Original Euro Amount of
all outstanding Utilisations under Tranche B falls within the range set
opposite that rate in Column (2) below:
(1) (2)
UTILISATION FEE ORIGINAL EURO AMOUNT OF ALL
% PER ANNUM OUTSTANDING DRAWN
TRANCHE B ADVANCES
AND TRANCHE B BILLS
Nil 0-2,500,000,000
0.025 Above 2,500,000,000 up to and including
3,500,000,000
0.050 Above 3,500,000,000
(b) Utilisation fee is calculated and, if payable, accrues on a daily basis
and is payable quarterly in arrear in the same currencies as the
Utilisations to which it relates with the first such payment, if any, due
three months after the Signing Date. Accrued utilisation fee, if any, is
also payable to the Agent for the relevant Banks on the Tranche B Final
Maturity Date.
(c) The Parent shall pay an additional utilisation fee of 0.05 per cent. flat
on the principal amount of any Term-out Advance in the same currency as
that Term-out Advance to the Agent for distribution to each Bank (pro rata
to the participation of that Bank in that Term-out Advance). Such amount,
if any, is payable on the Utilisation Date for that Term-out Advance.
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23. EXPENSES
23.1 Initial costs
The Parent shall within five Business Days of demand pay the Joint Lead
Arrangers the amount of all their out-of-pocket costs (including travel,
telecommunication and printing expenses) and other expenses (including the
legal fees of no more than one firm of solicitors and any value added tax
thereon) reasonably incurred by them in connection with:
(a) the arranging, underwriting and primary syndication of the
Facilities; and
(b) the negotiation, preparation, printing and execution of this
Agreement and any other documents referred to in this Agreement.
23.2 Enforcement costs
The Parent shall within five Business Days of demand pay to each Finance
Party the amount of all reasonable costs and expenses (including legal
fees) properly incurred by it in connection with the enforcement of, or
the preservation of any rights under, any Finance Document.
24. STAMP DUTIES
The Parent shall pay and within five Business Days of demand indemnify
each Finance Party against any liability it incurs in respect of any
stamp, registration and similar tax which is or becomes payable in the
U.K. or the jurisdiction of the place of incorporation of any Borrower
directly attributable to the entry into, performance or enforcement of
this Agreement (other than a Novation Certificate).
25. INDEMNITIES
25.1 Currency indemnity
Subject to Clause 11.4 (Currency), if a Finance Party receives an amount
in respect of an Obligor's liability under the Finance Documents or if
that liability is converted into a claim, proof, judgment or order in a
currency other than the currency (the "contractual currency") in which the
amount is expressed to be payable under the relevant Finance Document:
(a) that Obligor shall indemnify that Finance Party as an independent
obligation against any loss or liability arising out of or as a
result of the conversion;
(b) if the amount received by that Finance Party, when converted into the
contractual currency at a market rate in the usual course of its
business, is less than the amount owed in the contractual currency,
the Obligor concerned shall within five Business Days of demand pay
to that Finance Party an amount in the contractual currency equal to
the deficit; and
(c) the Obligor shall pay to the Finance Party concerned on demand any
exchange costs and taxes payable properly incurred in connection with
any such conversion.
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25.2 Other indemnities
The Parent shall forthwith on demand indemnify each Finance Party against
any loss or liability which that Finance Party directly incurs as a
consequence of:
(a) the occurrence of any Event of Default or Mandatory Prepayment Event;
(b) any payment of principal or an overdue amount being received from any
source otherwise than:
(i) in the case of Tranche A Advances and Tranche B Advances, on its
Maturity Date (and, for the purposes of this paragraph (b), the
Maturity Date of an overdue amount is the last day of each
Designated Term (as defined in Clause 10.4 (Default interest)));
or
(ii) in the case of Term-out Advances, on the last day of its
applicable Interest Period;
(c) (other than by reason of negligence or default by a Finance Party) a
Utilisation not being effected after a Borrower has delivered a
Request for that Utilisation.
The Parent's liability in each case includes any loss or expense (other
than loss of Margin) on account of funds borrowed, contracted for or
utilised to fund any amount payable under any Finance Document, any amount
repaid or prepaid or any Advance or Xxxx.
26. EVIDENCE AND CALCULATIONS
26.1 Accounts
Accounts maintained by a Finance Party in connection with this Agreement
are, in the absence of manifest error, prima facie evidence of the matters
to which they relate.
26.2 Certificates and determinations
Any certification or determination by a Finance Party of a rate or amount
under this Agreement is, in the absence of manifest error, prima facie
evidence of the matters to which it relates.
26.3 Calculations
Interest (and any MLA Cost) and the fees payable under Clause 22.1
(Commitment fee) and Clause 22.4 (Utilisation fee) accrue from day to day
and are calculated on the basis of the actual number of days elapsed and a
year of 360 days, or, in the case of interest payable on an amount
denominated in Sterling, 365 days. Acceptance commission is calculated on
the basis of the number of days in the relevant Term and a year of 365
days.
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27. AMENDMENTS AND WAIVERS
27.1 Procedure
(a) Subject to Clause 27.2 (Exceptions), any provision of the Finance
Documents may be amended or waived with the agreement of the Parent and
the Majority Banks. The Agent will and is authorised to effect, on behalf
of the Finance Parties, an amendment or waiver to which the Majority Banks
(or all Banks) and the Parent have agreed.
(b) In addition to (a) above, the Agent may agree with the Parent (after
consultation by the Agent with the Banks) that any references in this
Agreement to a Business Day, day-count fraction or other convention
(whether for the calculation of interest, determination of payment dates
or otherwise) shall, with effect from or after the Commencement Date, if
different, be amended to comply with any generally accepted conventions
and market practice from time to time applicable to euro-denominated
obligations in the London interbank market. The agreement of the Agent and
the Parent under this Clause 27.1(b) is not to be unreasonably withheld or
delayed.
(c) The Agent shall promptly notify the other Parties of any amendment or
waiver effected under paragraphs (a) or (b) above, and any such amendment
or waiver shall be binding on all the Parties.
27.2 Exceptions
An amendment or waiver under paragraph 27.1(a) above which relates to:
(a) the definition of "Majority Banks" in Clause 1.1 (Definitions); or
(b) an extension of the date for, or a decrease in an amount or a change
in the currency of, any payment under the Finance Documents; or
(c) an increase in a Bank's Commitment; or
(d) a term of a Finance Document which expressly requires the consent of
each Bank; or
(e) Clause 31 (Pro Rata Sharing) or this Clause 27 (Amendments and
Waivers); or
(f) a change to, or the release of the Parent from any of its obligations
under, Clause 17 (Guarantee),
may not be effected without the consent of each Bank. No amendment may be
effected under this Clause 27 which would increase the obligations, rights
or duties of the Agent without the consent of the Agent.
27.3 Waivers and remedies cumulative
The rights of each Finance Party under the Finance Documents:
(a) may be exercised as often as necessary;
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(b) are cumulative and not exclusive of its rights under the general law;
and
(c) may be waived only in writing and specifically.
Delay in exercising or non-exercise of any such right is not a waiver of
that right.
28. CHANGES TO THE PARTIES
28.1 Transfers by Obligors
Subject to Clause 9.5 (Changes to Borrowers), no Obligor may assign,
transfer, novate or dispose of any of, or any interest in, its rights
and/or obligations under this Agreement.
28.2 Transfers by Banks
(a) A Bank (the "Existing Bank") may at any time assign, transfer or novate
any of its rights and/or obligations under this Agreement, but only to
another bank or institution which is a Qualifying Bank and a U.S.
Qualifying Bank (the "New Bank"), and only with the prior written consent
of the Parent (such consent not to be unreasonably withheld or delayed),
unless the New Bank is another Bank or an Affiliate of a Bank in which
case no such consent is required. Any such assignment, transfer or
novation must be in a minimum aggregate amount of euro 25,000,000 (unless
to an Affiliate or the Agent and the Parent agree otherwise) and, except
in the case of an assignment, transfer or novation to an Affiliate, must
be pro rata between Tranches A and B. In the case of an assignment,
transfer or novation by a Swingline Bank, a portion of that Swingline
Bank's Swingline Commitment must also be assigned, transferred or novated
to the extent necessary (if at all) to ensure that the Swingline Bank's
Swingline Commitment does not exceed its Tranche B Commitment after the
assignment, transfer or novation.
(b) A Bank may at any time sub-participate any of its rights and/or
obligations under this Agreement but only with the prior written consent
of the Parent (such consent not to be unreasonably withheld or delayed),
unless the sub-participant is another Bank or an Affiliate of a Bank in
which case no consent is required.
(c) The consent of the Parent will be deemed to be given under paragraph (a)
or, as the case may be, (b) above if:
(i) the Existing Bank has given notice to the Parent addressed to the
Treasurer and the Finance Director requesting such consent (which
expressly states that the consent of the Parent is required under
this Clause 28.2, specifies the full name of the New Bank and amount
of the proposed transaction and states that consent will be deemed to
have been given if no response is given by the Parent within the
period specified in this paragraph (c)) and the Parent has not
responded within 10 days; and
(ii) after expiry of that 10 day period the Existing Bank has given a
further notice to the Parent addressed in the same way and in similar
terms (referring to the earlier notice) and the Parent has not
responded within a further five London Business Days (being business
days when banks in London are open for business generally in the
London interbank market).
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(d) A transfer of obligations will be effective only if either:
(i) the obligations are novated in accordance with Clause 28.3 (Procedure
for novations); or
(ii) the New Bank confirms to the Agent and the Parent that it undertakes
to be bound by the terms of this Agreement as a Bank in form and
substance satisfactory to the Agent and the Parent. On the transfer
becoming effective in this manner the Existing Bank shall be relieved
of its obligations under this Agreement to the extent that they are
transferred to the New Bank.
(e) On each occasion an Existing Bank assigns, transfers or novates any of its
rights and/or obligations under this Agreement, the New Bank shall, on the
date the assignment, transfer and/or novation takes effect, pay to the
Agent for its own account a fee of (Pounds)750.
(f) An Existing Bank is not responsible to a New Bank for:
(i) the execution, genuineness, validity, enforceability or sufficiency
of any Finance Document or any other document; or
(ii) the collectability of amounts payable under any Finance Document; or
(iii) the accuracy of any statements (whether written or oral) made in or
in connection with any Finance Document.
(g) Each New Bank confirms to the Existing Bank and the other Finance Parties
that it:
(i) has made its own independent investigation and assessment of the
financial condition and affairs of each Obligor and its related
entities in connection with its participation in this Agreement and
has not relied exclusively on any information provided to it by the
Existing Bank in connection with any Finance Document; and
(ii) will continue to make its own independent appraisal of the
creditworthiness of each Obligor and its related entities while any
amount is or may be outstanding under this Agreement or any
Commitment is in force.
(h) Nothing in any Finance Document obliges an Existing Bank to:
(i) accept a re-transfer from a New Bank of any of the rights and/or
obligations assigned, transferred or novated under this Clause; or
(ii) support any losses incurred by the New Bank by reason of the non-
performance by any Obligor of its obligations under this Agreement or
otherwise.
(i) Any reference in this Agreement to a Bank includes a New Bank but excludes
a Bank if no amount is or may be owed to or by it under this Agreement and
its Commitment has been cancelled or reduced to nil.
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28.3 Procedure for novations
(a) A novation is effected if:
(i) the Existing Bank and the New Bank deliver to the Agent (with a copy
to the Parent) a duly completed certificate (a "Novation
Certificate"), substantially in the form of Part I of Schedule 6 or
such other form as the Agent and the Parent may agree (which may be
delivered by fax and confirmed by delivery of a hard copy original
but the fax will be effective irrespective of whether confirmation
is received); and
(ii) the Agent executes it.
(b) Each Party (other than the Existing Bank and the New Bank) irrevocably
authorises the Agent to execute any duly completed Novation Certificate on
its behalf.
(c) To the extent that they are expressed to be the subject of the novation in
the Novation Certificate:
(i) the Existing Bank and the other Parties (the "existing Parties")
will be released from their obligations to each other (the
"discharged obligations");
(ii) the New Bank and the existing Parties will assume obligations
towards each other which differ from the discharged obligations only
insofar as they are owed to or assumed by the New Bank instead of
the Existing Bank;
(iii) the rights of the Existing Bank against the existing Parties and
vice versa (the "discharged rights") will be cancelled; and
(iv) the New Bank and the existing Parties will acquire rights against
each other which differ from the discharged rights only insofar as
they are exercisable by or against the New Bank instead of the
Existing Bank,
all on the date of execution of the Novation Certificate by the Agent or,
if later, the date specified in the Novation Certificate.
28.4 Additional Borrowers
(a) If the Parent wishes one of its Subsidiaries to become an Additional
Borrower, then it may deliver to the Agent the documents listed in Part II
of Schedule 3. Any Additional Borrower must be a wholly owned Subsidiary
of the Parent unless the Majority Banks agree otherwise.
(b) On delivery of a Borrower Accession Agreement, executed by the relevant
Subsidiary and the Parent, the Subsidiary concerned will become an
Additional Borrower. However, it may not submit a Request or become a
Substitute Borrower under Clause 9.5(b) (Changes to Borrowers) until the
Agent confirms to the other Finance Parties and the Parent that it has
received all the documents referred to in paragraph (a) above.
(c) Delivery of a Borrower Accession Agreement, executed by the relevant
Subsidiary and the Parent, constitutes confirmation:
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(i) by that Subsidiary and the Parent that the representations and
warranties set out in Clause 18.1 (Representations and warranties)
to be made by them on the date of the Borrower Accession Agreement
are correct, as if made by them with reference to the facts and
circumstances then existing; and
(b) by the Parent that such Subsidiary is a wholly owned Subsidiary of
the Parent (unless the Majority Banks have otherwise agreed).
28.5 Reference Banks
If a Reference Bank (or, if a Reference Bank is not a Bank, the Bank of
which it is an Affiliate) ceases to be a Bank, the Agent shall (in
consultation with the Parent) appoint another Bank or an Affiliate of a
Bank which is not a Reference Bank to replace that Reference Bank.
28.6 Change of Facility Office
Each Bank will participate in any Utilisation and receive the benefit of
any payment due to it under this Agreement at its Facility Office. No Bank
may change its Facility Office to a different jurisdiction to that notified
to the Agent and the Parent on or before the date it became a Bank without
the prior written consent of the Parent (such consent not to be
unreasonably withheld or delayed).
28.7 Additional Costs
If, at the time of or immediately after any novation, transfer, sub-
participation or assignment by a Bank or any change of Facility Office,
circumstances exist which, but for this Clause 28.7, would require any
Obligor to pay to the New Bank, transferee or assignee (or, in the case of
a change of Facility Office, the Bank concerned) any amount under this
Agreement in excess of the amount it would otherwise have been required to
pay to that Bank in the absence of that novation, transfer, sub-
participation, assignment or change of Facility Office, no Obligor will be
required to pay that excess.
28.8 Register
The Agent shall keep a register of all the Parties (including in the case
of Banks the details of their Facility Office notified to the Agent from
time to time) and shall supply any other Party (at that Party's expense)
with a copy of the register on request.
29. DISCLOSURE OF INFORMATION
(a) Subject to paragraph (b) below, a Bank may disclose to one of its
Affiliates or any person with whom it is proposing to enter, or has entered
into, any kind of transfer, participation or other agreement in relation to
this Agreement:
(i) a copy of any Finance Document; and
(ii) any information which that Bank has acquired under or in connection
with any Finance Document,
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provided that a Bank shall not disclose any such information to a person
unless that person has provided to the Parent a confidentiality undertaking
addressed to the Parent in such other form as the Parent may reasonably
require.
(b) If the consent of the Parent is required under Clause 28.2 (Transfers by
Banks) for any proposed assignment, transfer, novation, or sub-
participation then a Bank may only disclose confidential information
referred to in paragraph (a)(ii) above to a proposed New Bank if it has
obtained the Parent's prior written consent (such consent not to be
unreasonably withheld).
30. SET-OFF
After an Event of a Default which is continuing, a Finance Party may set
off any matured obligation owed by an Obligor under this Agreement (to the
extent beneficially owned by that Finance Party) against any obligation
(whether or not matured) owed by that Finance Party to that Obligor,
regardless of the place of payment, booking branch or currency of either
obligation. If the obligations are in different currencies, the Finance
Party may convert either obligation at a market rate of exchange in its
usual course of business for the purpose of the set-off. If either
obligation is unliquidated or unascertained, the Finance Party may set off
in an amount estimated by it in good faith to be the amount of that
obligation.
31. PRO RATA SHARING
31.1 Redistribution
If any amount owing by an Obligor under this Agreement to a Finance Party
(the "recovering Finance Party") is discharged by payment, set-off or any
other manner other than through the Agent in accordance with Clause 11
(Payments) (a "recovery"), then:
(a) the recovering Finance Party shall, within three Business Days,
notify details of the recovery to the Agent;
(b) the Agent shall determine whether the recovery is in excess of the
amount which the recovering Finance Party would have received had
the recovery been received by the Agent and distributed in
accordance with Clause 11 (Payments);
(c) subject to Clause 31.3 (Exception), the recovering Finance Party
shall, within three Business Days of demand by the Agent, pay to the
Agent an amount (the "redistribution") equal to the excess;
(d) the Agent shall treat the redistribution as if it were a payment by
the Obligor concerned under Clause 11 (Payments); and
(e) after payment of the full redistribution, the recovering Finance
Party will be subrogated to the portion of the claims paid under
paragraph (d) above and that Obligor will owe the recovering Finance
Party a debt which is equal to the redistribution, immediately
payable and of the type originally discharged.
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31.2 Reversal of redistribution
If under Clause 31.1 (Redistribution):
(a) a recovering Finance Party must subsequently return a recovery, or
an amount measured by reference to a recovery, to an Obligor; and
(b) the recovering Finance Party has paid a redistribution in relation
to that recovery,
each Finance Party shall, within three Business Days of demand by the
recovering Finance Party through the Agent, reimburse the recovering
Finance Party all or the appropriate portion of the redistribution paid to
that Finance Party. Thereupon the subrogation in Clause 31.1(e)
(Redistribution) will operate in reverse to the extent of the
reimbursement.
31.3 Exceptions
(a) A recovering Finance Party need not pay a redistribution to the extent that
it would not, after the payment, have a valid claim against the Obligor
concerned in the amount of the redistribution pursuant to Clause 31.1(e)
(Redistribution).
(b) If a Finance Party has become a recovering Finance Party by virtue of
having started an action or proceeding in any court to enforce it rights,
that recovering Finance Party will not be required to share any portion of
any recovery with any Bank that has the legal right to, but does not join
such action or proceeding or start a separate action or proceeding to
enforce its rights in the same or another court. Any Finance Party
instituting legal proceedings to recover sums owing to it under this
Agreement will, as soon as practicable thereafter, give notice to the Agent
which will, as soon as practicable, give notice to all the other Finance
Parties.
32. SEVERABILITY
If a provision of any Finance Document is or becomes illegal, invalid or
unenforceable in any jurisdiction, that shall not affect:
(a) the legality, validity or enforceability in that jurisdiction of any
other provision of the Finance Documents; or
(b) the legality, validity or enforceability in other jurisdictions of
that or any other provision of the Finance Documents.
33. COUNTERPARTS
This Agreement 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 this Agreement.
34. NOTICES
34.1 Giving of notices
All notices or other communications under or in connection with this
Agreement shall be given in writing or by facsimile. Any such notice will
be deemed to be given as follows:
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(a) if in writing, when delivered; and
(b) if by facsimile, when received.
However, a notice given in accordance with the above but received on a non-
working day or after business hours in the place of receipt will only be
deemed to be given on the next working day in that place. Facsimile
requests are to be confirmed by the relevant Borrower in writing (but may
be relied upon by the Agent and the Banks irrespective of receipt of such
confirmation).
34.2 Addresses for notices
(a) The address and facsimile number of each Party (other than the Agent, the
US Swingline Agent and the Parent) for all notices under or in connection
with this Agreement are:
(i) that notified by that Party for this purpose to the Agent on or
before it becomes a Party; or
(ii) any other notified by that Party for this purpose to the Agent by
not less than five Business Days' notice.
(b) The address and facsimile numbers of the Agent are:
HSBC Investment Bank plc
Vinters Place
00 Xxxxx Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Contact: Specialised Financing Support
Facsimile: (0000) 000 0000
(0000) 000 0000,
or such other as the Agent may notify to the other Parties by not less than
five Business Days' notice.
(c) The address and facsimile numbers of the US Swingline Agent are:
Marine Midland Bank
00xx Xxxxx
Xxx Xxxxxx Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
U.S.A.
Contact: Xxxx X. Xxxxxxx
Telephone: 000 000 000 0000
Facsimile: 001 716 841 2325,
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or such other as the US Swingline Agent may notify to the other Parties by
not less than five New York Business Days' notice.
(d) The address and facsimile numbers of the Parent are:
Xxx Xxxxxx Xxxxxx
Xxxxxx X0X 0XX
Attention: The Secretary
Facsimile: 0171 493 1974,
or such other as the Parent may notify to the other Parties by not less
than five Business Days' notice.
(e) The Agent shall, promptly upon request from any Party, give to that Party
the address or facsimile number of any other Party applicable at the time
for the purposes of this Clause.
35. LANGUAGE
(a) Any notice given under or in connection with any Finance Document shall be
in English.
(b) All other documents provided under or in connection with any Finance
Document shall be:
(i) in English; or
(ii) if not in English, accompanied by a certified English translation
and, in this case, the English translation shall prevail unless the
document is a statutory or other official document.
36. JURISDICTION
36.1 Submission
For the benefit of each Finance Party, each Obligor agrees that the courts
of England have jurisdiction to settle any disputes in connection with any
Finance Document and accordingly submits to the jurisdiction of the English
courts.
36.2 Service of process
Without prejudice to any other mode of service, each Obligor (other than an
Obligor incorporated in England and Wales):
(a) irrevocably appoints the Parent as its agent for service of process
relating to any proceedings before the English courts in connection
with any Finance Document;
(b) agrees that failure by a process agent to notify the Obligor of the
process will not invalidate the proceedings concerned; and
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(c) consents to the service of process relating to any such proceedings
by prepaid posting of a copy of the process to its address for the
time being applying under Clause 34.2 (Addresses for notices).
36.3 Forum convenience and enforcement abroad
Each Obligor:
(a) waives objection to the English courts on grounds of inconvenient
forum or otherwise as regards proceedings in connection with a
Finance Document; and
(b) agrees that a judgment or order of an English court in connection
with a Finance Document is conclusive and binding on it and may be
enforced against it in the courts of any other jurisdiction.
36.4 Non-exclusivity
Nothing in this Clause 36 limits the right of a Finance Party to bring
proceedings against an Obligor in connection with any Finance Document:
(a) in any other court of competent jurisdiction; or
(b) concurrently in more than one jurisdiction.
37. GOVERNING LAW
This Agreement is governed by English law.
THIS AGREEMENT has been entered into on the date stated at the beginning of this
Agreement.
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SCHEDULE 1
PART I
BANKS AND COMMITMENTS
Column 1 Column 2
Bank Tranche A Tranche B
Commitments Commitments
euro euro
Banca Commerciale Italiana S.p.A., London Branch 65,250,000 195,750,000
Barclays Bank PLC 65,250,000 195,750,000
Banque Nationale de Paris 65,000,000 195,000,000
The Chase Manhattan Bank 65,000,000 195,000,000
Midland Bank plc 65,000,000 195,000,000
Xxxxxx Guaranty Trust Company of New York 65,000,000 195,000,000
Swiss Bank Corporation 65,000,000 195,000,000
Westdeutsche Landesbank Girozentrale 65,000,000 195,000,000
Banca Nazionale del Lavoro S.p.A., London Branch 62,500,000 187,500,000
Bayerische Landesbank Girozentrale London Branch 62,500,000 187,500,000
Citibank, N.A. 62,500,000 187,500,000
Credit Suisse First Boston 62,500,000 187,500,000
Den Danske Bank Aktieselskab 62,500,000 187,500,000
Deutsche Bank AG London 62,500,000 187,500,000
National Westminster Bank Plc 62,500,000 187,500,000
Australia and New Zealand Banking Group Limited (acting 60,500,000 181,500,000
through its ANZ Investment Bank division)
Banco Central Hispanoamericano, S.A. London Branch 60,500,000 181,500,000
Commerzbank Aktiengesellschaft, London Branch 60,500,000 181,500,000
The Royal Bank of Scotland plc 60,500,000 181,500,000
L-Bank 50,000,000 150,000,000
ABN AMRO Bank N.V. London Branch 31,250,000 93,750,000
Banca di Roma S.p.A. - London Branch 31,250,000 93,750,000
Banca Monte dei Paschi di Siena SpA 31,250,000 93,750,000
Banco Bilbao Vizcaya 31,250,000 93,750,000
The Bank of Tokyo-Mitsubishi, Ltd. 31,250,000 93,750,000
CARIPLO - Cassa di Risparmio delle Provincie Lombarde 31,250,000 93,750,000
S.p.A., London Branch
Credito Italiano SpA 31,250,000 93,750,000
Istituto Bancario San Paolo di Torino S.p.A. 31,250,000 93,750,000
----------------- -----------------
euro 1,500,000,000 euro 4,500,000,000
----------------- -----------------
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SCHEDULE 1
PART II
SWINGLINE BANKS AND SWINGLINE COMMITMENTS
Swingline Bank* Swingline Commitments
euro
Banca Commerciale Italiana S.p.A., London Branch 125,000,000
Barclays Bank PLC 125,000,000
Banque Nationale de Paris 125,000,000
The Chase Manhattan Bank 125,000,000
Midland Bank plc 125,000,000
Xxxxxx Guaranty Trust Company of New York 125,000,000
Swiss Bank Corporation 125,000,000
Westdeutsche Landesbank Girozentrale 125,000,000
--------------------
Total euro 1,000,000,000
--------------------
---------------------
* in each case lending through its Facility Office in the United States
notified to the Agent for the purposes of US Swingline Advances.
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SCHEDULE 2
ORIGINAL BORROWERS
(if any)
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SCHEDULE 3
CONDITIONS PRECEDENT DOCUMENTS
PART I
TO BE DELIVERED BEFORE THE FIRST ADVANCE
1. A copy (certified as a true copy by a director or officer of an Obligor) of
the memorandum and articles of association and certificate of incorporation
(or equivalent constitutional documents) of each Obligor.
2. A copy (certified as a true copy by a director or officer of an Obligor) of
a resolution of the board of directors of each Obligor:
(a) approving the terms of, and the transactions contemplated by, the
Finance Documents and resolving that it execute and, where applicable,
deliver the Finance Documents to which it is a party;
(b) authorising a specified person or persons to execute and, where
applicable, deliver the Finance Documents to which it is a party on
its behalf; and
(c) authorising a specified person or persons, on its behalf, to sign and
endorse Bills and to sign and/or despatch all documents and notices
(including Requests) to be signed and/or despatched by it under or in
connection with the Finance Documents.
3. A specimen of the signature of each person authorised by the resolution
referred to in paragraph 2 above.
4. A favourable legal opinion of Xxxxxxxx Chance in relation to English law.
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PART II
TO BE DELIVERED BY AN ADDITIONAL BORROWER
1. A Borrower Accession Agreement, duly executed by the Additional Borrower
and the Parent.
2. A copy (certified as a true copy by a director or officer of the Additional
Borrower) of the memorandum and articles of association and certificate of
incorporation (or equivalent constitutional documents) of the Additional
Borrower.
3. A copy (certified as a true copy by a director or officer of the Additional
Borrower) of a resolution of the board of directors of the Additional
Borrower:
(a) approving the terms of, and the transactions contemplated by, the
Borrower Accession Agreement and resolving that it execute the
Borrower Accession Agreement;
(b) authorising a specified person or persons to execute the Borrower
Accession Agreement on its behalf; and
(c) authorising a specified person or persons, on its behalf, to sign and
endorse Bills and to sign and/or despatch all other documents and
notices (including Requests) to be signed and/or despatched by it
under or in connection with this Agreement.
4. A specimen of the signature of each person authorised by the resolution
referred to in paragraph 3 above.
5. A favourable legal opinion from lawyers approved by the Agent and the
Parent in the place of incorporation of the Additional Borrower, addressed
to the Finance Parties.
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SCHEDULE 4
CALCULATION OF THE MLA COST
(a) The MLA Cost for an Advance denominated in Sterling is calculated in
accordance with the following formula:
BY + L(Y-X) + S(Y-Z) % per annum = MLA Cost
--------------------
100-(B + S)
where on the day of application of the formula:
B is the arithmetic mean of the respective percentage of each Reference
Bank's eligible liabilities which the Bank of England requires that
Reference Bank to hold on a non-interest-bearing deposit account in
accordance with its cash ratio requirements;
Y is the arithmetic mean of the respective rates at which Sterling
deposits are offered by each Reference Bank to leading banks in the
London interbank market at or about 11.00 a.m. on that day for the
relevant period;
L is the arithmetic mean of the respective percentage of eligible
liabilities which the Bank of England requires each Reference Bank to
maintain as secured money with members of the London Discount Market
Association and/or as secured call money with certain money brokers
and gilt-edged primary market makers;
X is the arithmetic mean of the respective rates at which secured Sterling
deposits in the relevant amount may be placed by each Reference Bank
with members of the London Discount Market Association and/or as
secured call money with certain money brokers and gilt-edged primary
market makers at or about 11.00 a.m. on that day for the relevant
period;
S is the arithmetic mean of the respective percentage of each Reference
Bank's eligible liabilities which the Bank of England requires that
Reference Bank to place as a special deposit; and
Z is the interest rate per annum allowed by the Bank of England on special
deposits.
(b) For the purposes of this Schedule 4:
(i) "eligible liabilities" and "special deposits" have the meanings given
to them at the time of application of the formula by the Bank of
England;
(ii) "relevant period" in relation to an Advance, means:
(A) if its Term or Interest Period is three months or less, its Term
or Interest Period; or
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(B) if its Term or Interest Period is more than three months, each
successive period of three months and any necessary shorter
period comprised in that Term or Interest Period.
(c) In the application of the formula, B, Y, L, X, S and Z are included in the
formula as figures and not as percentages, e.g. if B = 0.5% and Y = 15%, BY
is calculated as 0.5 x 15.
(d) (i) The formula is applied on the first day of each relevant period
comprised in the Term or Interest Period of the relevant Advance.
(ii) Each rate calculated in accordance with the formula is, if necessary,
rounded upward to four decimal places.
(e) If a change in circumstances has rendered, or will render, the formula
inappropriate, the Agent (after consultation with the Reference Banks and
the Parent) shall notify the Parent of the manner in which the MLA Cost
will subsequently be calculated so as to leave the Obligors and the Banks,
so far as is practicable, in no better or worse a position than they were
in prior to that change. The manner of calculation so notified by the
Agent shall, in the absence of manifest error, be binding on all the
Parties.
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SCHEDULE 5
FORM OF REQUEST
To: HSBC Investment Bank plc as Agent/Marine Midland Bank as US Swingline
Agent*
From: [BORROWER] Date: [ ]
The General Electric Company, p.l.c. -- euro 6,000,000,000 Syndicated Credit
Facility dated 25th March, 1998
We wish to utilise Tranche A* and/or*/Tranche B* by way of Advance(s)* and/or
Bills and/or Swingline Advances as follows:
(a) Utilisation Date: Tranche A: [ ]*
Tranche B: [ ]*
Swingline Facility [ ]*
(b) Requested Amount (including currency): Tranche A: [ ]*
Tranche B: [ ]*
Swingline Facility [ ]*
(c) Term*: Tranche A: [ ]*
Tranche B: [ ]*
Swingline Facility [ ]*
(d) Payment Instructions: Tranche A: [ ]*
Tranche B: [ ]*
Swingline Facility [ ]*
(e) Initial Interest Period
(for Term-out Advances only)*
(f) Maturity Date
(for Term-out Advances only)* Tranche A: [ ]*
(g) Xxxxxxxx (for Bills only)* Tranche A: [ ]*
Tranche B: [ ]*
We confirm that no Default has occurred which is continuing and the
representations and warranties in Clause 18 (Representations and Warranties) to
be repeated in accordance with Clause 18.2 (Times for making representations and
warranties) on those dates are correct and will be correct immediately after the
Utilisation referred to above except in all cases to the extent waived by the
Majority Banks.
By:
[BORROWER]
Authorised Signatory
-----------------------------------
* Delete as appropriate.
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SCHEDULE 6
FORMS OF ACCESSION DOCUMENTS
PART I
NOVATION CERTIFICATE
To: HSBC Investment Bank plc as Agent and on behalf of the Obligors
From: [THE EXISTING BANK] and [THE NEW BANK] Date: [ ]
The General Electric Company, p.l.c. - euro 6,000,000,000 Syndicated Credit
Agreement dated 25th March, 1998
We refer to Clause 28.3 (Procedure for novations).
1. We [ ] (the "Existing Bank") and [ ] (the "New Bank")
agree to the Existing Bank and the New Bank novating all the Existing
Bank's rights and obligations referred to in the Schedule in accordance
with Clause 28.3 (Procedure for novations).
2. The specified date for the purposes of Clause 28.3(c) (Procedure for
novations) is [date of novation].
3. The prior written consent of The General Electric Company, p.l.c. [is not
required]* [has been obtained]* in accordance with Clause 28 (Changes to
the Parties).
4. The Facility Office and address for notices of the New Bank for the
purposes of Clause 34.2 (Addresses for notices) are set out in the
Schedule.
5. This Novation Certificate is governed by English law.
----------------------------------
* Delete as appropriate.
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THE SCHEDULE
Rights and obligations to be novated
[Details of the rights and obligations of the Existing Bank to be novated].
[New Bank]
[Facility Office Address for notices]
[Existing Bank] [New Bank] [ ]
By: By: By:
Date: Date: Date:
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PART II
BORROWER ACCESSION AGREEMENT
To: HSBC Investment Bank plc as Agent
From: [PROPOSED BORROWER] and The General Electric Company, p.l.c.
[Date]
The General Electric Company, p.l.c. -- euro 6,000,000,000 Syndicated Credit
Facility dated
25th March, 1998 (the "Credit Agreement")
We refer to Clause 28.4 (Additional Borrowers).
[Name of company] of [address] (Registered no. [ ], if any) (the "Proposed
Borrower") is a Subsidiary of The General Electric Company, p.l.c. as required
by the Credit Agreement and agrees to become an Additional Borrower and to be
bound by the terms of the Credit Agreement as an Additional Borrower in
accordance with Clause 28.4 (Additional Borrowers).
The address for notices of the Proposed Borrower for the purposes of Clause 34.2
(Addresses for notices) is:
[
]
This Agreement is governed by English law.
By:
[PROPOSED BORROWER]
Authorised Signatory
By:
THE GENERAL ELECTRIC COMPANY, P.L.C.
Authorised Signatory
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PART III
FORM OF BORROWER NOVATION AGREEMENT
A NOVATION AGREEMENT dated [ ]
BETWEEN:
(1) [ ] (the "Existing Borrower");
(2) [ ] (the "Substitute Borrower");
(3) THE GENERAL ELECTRIC COMPANY, p.l.c. on behalf of itself and each other
Borrower (as such capitalised term is defined in the Credit Agreement
referred to below) (the "Parent"); and
(4) HSBC INVESTMENT BANK PLC as agent (the "Agent") on behalf of itself and the
Banks (as defined in the Credit Agreement referred to below),
and is supplemental to the Syndicated Credit Agreement dated [ ], 1998
(the "Credit Agreement") and made between The General Electric Company, p.l.c.,
the subsidiaries of the Parent listed in Schedule 2 thereto, the financial
institutions listed in Schedule 1 thereto, and the Agent.
IT IS AGREED:
1. Novation
In consideration of a payment made by the Existing Borrower to the
Substitute Borrower and the release of the Existing Borrower from its
obligations and liabilities (actual or contingent) specified in the
Schedule hereto under the Credit Agreement and with effect on and from
[ ] (the "Effective Date") the Substitute Borrower hereby undertakes
to observe and perform all the obligations and liabilities (actual or
contingent) of the Existing Borrower under the Credit Agreement in respect
of the Advances and Bills specified in the Schedule.
2. Integration
This Novation Agreement shall be read as one with the Credit Agreement so
that any reference therein to "this Agreement", "hereunder" and similar
shall include and be deemed to include this Novation Agreement.
3. Continuing Liability
The Parent acknowledges and confirms that its obligations under Clause 17
of the Credit Agreement apply to the obligations and liabilities assumed by
the Substitute Borrower hereunder.
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SCHEDULE
[
]
IN WITNESS whereof the parties hereto have caused this Novation Agreement
to be duly executed on the date first written above.
.........................................
For and on behalf of
[The Existing Borrower]
.........................................
For and on behalf of
[The Substitute Borrower]
.........................................
For and on behalf of the
Parent
.........................................
For and on behalf of each
Bank and the Agent
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SCHEDULE 7
FORM OF XXXX
Face of Xxxx
No. for (Pounds) ..............
....................19....
To
On.................19.. pay against this Xxxx of Exchange to our order the sum
of ............................... for value received against [ ].
Accepted by:
For and on behalf of For and on behalf of
[ACCEPTING BANK] [BORROWER]
........................... ...........................
Authorised signatory Authorised signatory
Reverse of Xxxx
For and on behalf of
[BORROWER]
...........................
Authorised signatory
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SIGNATORIES
Parent
THE GENERAL ELECTRIC COMPANY, p.l.c.
By: Xxxx Xxxx
Original Borrowers
[if any]
Joint Lead Arrangers
BANCA COMMERCIALE ITALIANA S.p.A., LONDON BRANCH
By: Xxxxxxx Xxxxx
BANQUE NATIONALE DE PARIS
By: S. Xxxxxxx Xxxx
BARCLAYS CAPITAL
By: G.M. Xxxx
XXXXX MANHATTAN plc
By: Xxxxx Xxxxxx
MIDLAND BANK plc
By: Xxxx Lack
X. X. XXXXXX SECURITIES LTD.
By: S. Xxxxxxx Xxxx
SBC WARBURG DILLON READ
By: Xxxxxxx X. Xxxxxx
WESTDEUTSCHE LANDESBANK GIROZENTRALE
By: Xxxxxxxx Xxxxxx Xxxx Xxxxxx
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Agent
HSBC INVESTMENT BANK PLC
By: Xxxxx Stent
US Swingline Agent
MARINE MIDLAND BANK
By: Xxxxx Stent
Banks
BANCA COMMERCIALE ITALIANA S.p.A., LONDON BRANCH
By: Xxxxxxx Xxxxx
BARCLAYS BANK PLC
By: X.X. Xxxx
BANQUE NATIONALE DE PARIS
By: S. Xxxxxxx Xxxx
THE CHASE MANHATTAN BANK
By: Sinead English
MIDLAND BANK plc
By: D.G. Lack
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK
By: S. Xxxxxxx Xxxx
SWISS BANK CORPORATION
By: Xxxxxxx X. Xxxxxx
WESTDEUTSCHE LANDESBANK GIROZENTRALE
By: Xxxxxxxx Xxxxxx Xxxx Xxxxxx
BANCA NAZIONALE DEL LAVORO S.p.A., LONDON BRANCH
By: X.X. Xxxxxxxxx X.X. Xxxxxx
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BAYERISCHE LANDESBANK GIROZENTRALE LONDON BRANCH
By: Xxxxx Xxxx
CITIBANK, N.A.
By: J.W.G. Xxxxxxx
CREDIT SUISSE FIRST BOSTON
By: X. Xxxxx-Xxxxxx Xxxxxx Xxxxx
DEN DANSKE BANK AKTIESELSKAB
By: S. Xxxxxxx Xxxx
DEUTSCHE BANK AG LONDON
By: X.X. Xxxxxxxxx X.X. Xxxxxxxx
NATIONAL WESTMINSTER BANK Plc
By: X.X. Xxxx
AUSTRALIA AND NEW ZEALAND BANKING
GROUP LIMITED (ACTING THROUGH ITS ANZ
INVESTMENT BANK DIVISION)
By: X.X. Xxxxxx
BANCO CENTRAL HISPANOAMERICANO,
S.A. LONDON BRANCH
By: H.J.W. Xxxxxx X.X. Inches
COMMERZBANK AKTIENGESELLSCHAFT,
LONDON BRANCH
By: Bernd Meist Xxxxx Xxxxx
THE ROYAL BANK OF SCOTLAND plc
By: Xxxx Xxxxx
L-BANK
By: S. Xxxxxxx Xxxx
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ABN AMRO BANK N.V. LONDON BRANCH
By: S. Xxxxxxx Xxxx
BANCA DI ROMA S.p.A. - LONDON BRANCH
By: X.X. Xxxxxxxx Xxxxxxx Xxxxxxxxxx
BANCA MONTE DEI PASCHI DI SIENA SpA
By: G.N.H. Furzland Xxxxxxx Xxxxxxxxx
BANCO BILBAO VIZCAYA
By: S. Xxxxxxx Xxxx
BANK OF TOKYO-MITSUBISHI, LTD
By: X.X. Xxxxxxxxx
CARIPLO - CASSA DI RISPARMIO DELLE
PROVINCIE LOMBARDE S.p.A., LONDON BRANCH
By: X.X. Xxxxxx
CREDITO ITALIANO SpA
By: Xxxxxx G.A. Xxxxxxxxx
ISTITUTO BANCARIO SAN PAOLO DI TORINO S.p.A.
By: S. Xxxxxxx Xxxx
--------------------------------------------------------------------------------
