CONFORMED COPY
Exhibit
4.7
 |
CONFORMED
COPY
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|
|
arranged
by
Commerzbank
AG London Branch
Deutsche
Bank AG, London Branch
Dresdner
Bank AG Niederlassung Luxembourg
HSBC
Bank plc
X.X.
Xxxxxx plc
Lloyds
TSB Bank PLC
Xxxxxx
Xxxxxxx Bank International Limited
Standard
Chartered Bank
The
Royal Bank of Scotland plc
UBS
Limited
with
HSBC
Bank plc
acting
as
Agent
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CONTENTS
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CLAUSE |
PAGE |
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|
1. |
DEFINITIONS
AND INTERPRETATION |
1 |
|
2. |
THE
FACILITY |
12 |
|
3. |
PURPOSE |
14 |
|
4. |
CONDITIONS
OF
UTILISATION |
14 |
|
5. |
UTILISATION |
15 |
|
6. |
ANCILLARY
FACILITIES |
16 |
|
7. |
OPTIONAL
CURRENCIES |
20 |
|
8. |
REPAYMENT |
21 |
|
9. |
PREPAYMENT
AND CANCELLATION |
21 |
|
10. |
INTEREST |
24 |
|
11. |
INTEREST
PERIODS |
25 |
|
12. |
CHANGES
TO
THE CALCULATION OF INTEREST |
26 |
|
13. |
FEES |
27 |
|
14. |
TAX
GROSS-UP
AND INDEMNITIES |
28 |
|
15. |
INCREASED
COSTS |
32 |
|
16. |
OTHER
INDEMNITIES |
33 |
|
17. |
MITIGATION
BY
THE LENDERS |
34 |
|
18. |
COSTS
AND
EXPENSES |
34 |
|
19. |
GUARANTEE
AND
INDEMNITY |
34 |
|
20. |
REPRESENTATIONS |
37 |
|
21. |
INFORMATION
UNDERTAKINGS |
38 |
|
22. |
GENERAL
UNDERTAKINGS |
41 |
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23. |
EVENTS
OF
XXXXXXX |
00 |
|
00. |
CHANGES
TO
THE LENDERS |
46 |
|
25. |
CHANGES
TO
THE OBLIGORS |
49 |
|
26. |
ROLE
OF THE
AGENT AND THE ARRANGERS |
51 |
|
27. |
CONDUCT
OF
BUSINESS BY THE FINANCE PARTIES |
55 |
|
28. |
SHARING
AMONG
THE FINANCE PARTIES |
56 |
|
29. |
PAYMENT
MECHANICS |
57 |
|
30. |
SET-OFF |
60 |
|
31. |
NOTICES,
EMAIL OR ANY ELECTRONIC COMMUNICATION APPROVED BY THE
AGENT |
60 |
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32. |
CALCULATIONS
AND CERTIFICATES |
62 |
|
33. |
PARTIAL
INVALIDITY |
62 |
|
34. |
REMEDIES
AND
WAIVERS |
63 |
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35. |
AMENDMENTS
AND WAIVERS |
63 |
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36. |
COUNTERPARTS |
63 |
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37. |
GOVERNING
LAW |
63 |
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38. |
ENFORCEMENT |
64 |
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Existing
Security
|
77
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SCHEDULE
9
|
78
|
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LMA
Form of
Confidentiality Undertaking
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78
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SCHEDULE
10
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83
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Timetables
|
83
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SCHEDULE
11
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84
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Material
Subsidiaries
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84
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THIS
AGREEMENT
is made on 26
October 2006
BETWEEN:
|
(1)
|
REUTERS
GROUP PLC
(the
“Company”);
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|
(2)
|
CITIGROUP
GLOBAL MARKETS LIMITED, COMMERZBANK AG LONDON BRANCH, DEUTSCHE BANK
AG,
LONDON BRANCH, DRESDNER BANK AG NIEDERLASSUNG LUXEMBOURG, HSBC BANK
plc, X.X.
XXXXXX plc, LLOYDS TSB BANK PLC, XXXXXX XXXXXXX BANK INTERNATIONAL
LIMITED, SOCIETE GENERALE, STANDARD CHARTERED BANK, THE ROYAL BANK
OF
SCOTLAND plc
and
UBS
LIMITED (each
as
mandated arranger) (together the “Arrangers”);
|
|
(3)
|
THE
FINANCIAL INSTITUTIONS
listed in
schedule 1 as lenders (the “Original
Lenders”);
and
|
|
(4)
|
HSBC
BANK plc
as agent of
the other Finance Parties (the “Agent”).
|
THE
PARTIES
AGREE AS FOLLOWS:
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1.
|
DEFINITIONS
AND INTERPRETATION
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|
1.1
|
Definitions
|
In
this
agreement:
“Accession
Letter”
means a document
substantially in the form set out in schedule 6 (Form of Accession
Letter);
“Additional
Borrower”
means a company
which becomes an Additional Borrower in accordance with clause 25 (Changes
to
the Obligors);
“Additional
Guarantor”
means a company
which becomes an Additional Guarantor in accordance with clause 25 (Changes
to
the Obligors);
“Additional
Obligor”
means an
Additional Borrower or an Additional Guarantor;
“Affiliate”
means, in relation
to any person, a Subsidiary of that person or a Holding Company of that person
or any other Subsidiary of that Holding Company;
“Agent’s
Spot Rate of Exchange”
means the Agent’s
spot rate of exchange for the purchase of the relevant currency with the Base
Currency in the London foreign exchange market at or about 11.00 a.m. on a
particular day;
“Aggregate
Ancillary Commitments” means
the aggregate
of the Ancillary Commitments;
“Ancillary
Commencement Date”
means, in relation
to an Ancillary Facility, the date on which that Ancillary Facility is first
made available, which date shall be a Business Day within the Availability
Period for the Facility;
“Ancillary
Commitment”
means, in relation
to an Ancillary Lender and an Ancillary Facility, the maximum Base Currency
Amount which that Ancillary Lender has agreed (whether or not subject to
satisfaction of conditions precedent) to make available from time to time under
an Ancillary Facility and which has been authorised as such under clause 6
(Ancillary Facilities), to the extent that amount is not cancelled or reduced
under this agreement or the Ancillary Documents relating to that Ancillary
Facility;
1
“Ancillary
Document”
means each
document relating to or evidencing the terms of an Ancillary
Facility;
“Ancillary
Facility”
means the Existing
Ancillary Facility and any other ancillary facility made available by an
Ancillary Lender in accordance with clause 6 (Ancillary
Facilities);
“Ancillary
Lender”
means each Lender
(or Affiliate of a Lender) which makes available an Ancillary Facility in
accordance with clause 6 (Ancillary Facilities);
“Ancillary
Outstandings”
means, at any
time, in relation to an Ancillary Lender and an Ancillary Facility, the
aggregate of the equivalents (as calculated by that Ancillary Lender) in the
Base Currency of the following amounts outstanding under that Ancillary Facility
then in force:
|
(a)
|
the
face
amount of each guarantee, bond and letter of credit under that Ancillary
Facility; and
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|
(b)
|
the
amount
fairly representing the aggregate exposure (excluding interest and
similar
charges) of that Ancillary Lender under each other type of accommodation
provided under that Ancillary
Facility,
|
in
either case as
determined by such Ancillary Lender acting reasonably in accordance with its
normal banking practice and in accordance with the relevant Ancillary
Document;
“Authorisation”
means an
authorisation, consent, approval, resolution, licence, exemption, filing,
notarisation or registration;
“Availability
Period”
means, in relation
to a Lender, the period from and including the Signing Date up to and including
the date falling one month prior to the Termination Date applicable to that
Lender;
“Available
Commitment”
means a Lender’s
Commitment minus:
|
(a)
|
the
Ancillary
Commitment of any Ancillary Facilities that Lender has provided and
are
currently outstanding;
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(b)
|
the
Base
Currency Amount of its participation in any outstanding Loans;
and
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(c)
|
in
relation
to any proposed Loan, the Base Currency Amount of its participation
in any
Loans that are due to be made on or before the proposed Utilisation
Date,
|
other
than that
Lender’s participation in any Loans that are due to be repaid or prepaid on or
before the proposed Utilisation Date;
“Available
Facility”
means the
aggregate for the time being of each Lender’s Available Commitment;
“Back
to
Back Loan”
means any
Financial Indebtedness made available to a member of the Restricted Group to
the
extent that the creditor has recourse directly or indirectly to a deposit of
cash or cash equivalent investments beneficially owned by any member of the
Restricted Group placed, as part of a related transaction, with that creditor
(or an Affiliate of that creditor) or a financial institution approved by that
creditor on the basis that the deposit be available, directly or indirectly,
so
as to reduce the economic exposure of the creditor to the Restricted Group,
when
looking at the related transactions together, to a net amount.
“Base
Currency”
means
Sterling;
2
“Base
Currency Amount”
means:
|
(a)
|
in
relation
to a Loan, the amount specified in the Utilisation Request delivered
by a
Borrower for that Loan (or, if the amount requested is not denominated
in
the Base Currency, that amount converted into the Base Currency at
the
Agent’s Spot Rate of Exchange on the date which is three Business Days
before the Utilisation Date or, if later, on the date the Agent receives
the Utilisation Request in accordance with the terms of this agreement);
and
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(b)
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in
relation
to an Ancillary Commitment, the amount specified as such in the notice
delivered to the Agent by the Company pursuant to clause 6.2
(Availability) (or, if the amount specified is not denominated in
the Base
Currency, that amount converted into the Base Currency at the Agent’s Spot
Rate of Exchange on the date which is three Business Days before
the
Ancillary Commencement Date for that Ancillary Facility or, if later,
the
date the Agent receives the notice of the Ancillary Commitment in
accordance with the terms of this
agreement),
|
as
adjusted to
reflect any repayment, prepayment, consolidation or division of a Loan, or
(as
the case may be) cancellation or reduction of an Ancillary
Facility;
“Borrower”
means the Company
or an Additional Borrower unless it has ceased to be a Borrower in accordance
with clause 25 (Changes to the Obligors) and, in respect of an Ancillary
Facility only, any Affiliate of a Borrower that becomes a borrower of that
Ancillary Facility with the approval of the relevant Lender pursuant to the
provisions of clause 6.8 (Affiliates of Borrowers);
“Break
Costs”
means the amount
(if any) by which:
|
(a)
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the
interest
which a Lender should have received for the period from the date
of
receipt of all or any part of its participation in a Loan or Unpaid
Sum to
the last day of the current Interest Period in respect of that Loan
or
Unpaid Sum, had the principal amount or Unpaid Sum received been
paid on
the last day of that Interest
Period;
|
exceeds:
|
(b)
|
the
amount
which that Lender would be able to obtain by placing an amount equal
to
the principal amount or Unpaid Sum received by it on deposit with
a
leading bank in the Relevant Interbank Market for a period starting
on the
Business Day following receipt or recovery and ending on the last
day of
the current Interest Period;
|
“Business
Day”
means a day (other
than a Saturday or Sunday) on which banks are open for general business in
London and:
|
(a)
|
(in
relation
to any date for payment or purchase of a currency other than euro)
the
principal financial centre of the country of that currency;
or
|
|
(b)
|
(in
relation
to any date for payment or purchase of euro) any TARGET
Day;
|
“Commitment”
means:
|
(a)
|
in
relation
to an Original Lender, the amount in the Base Currency set opposite
its
name under the heading “Commitment”
in schedule
1 (The Original Lenders) and the amount of any other Commitment
transferred to it under this agreement;
and
|
|
(b)
|
in
relation
to any other Lender, the amount in the Base Currency of any Commitment
transferred to it under this
agreement,
|
3
to
the extent not
cancelled, reduced or transferred by it under this agreement;
“Confidentiality
Undertaking”
means a
confidentiality undertaking substantially in a recommended form of the LMA
as
set out in schedule 9 (LMA Form of Confidentiality Undertaking) or in any other
form agreed between the Company and the Agent;
“Default”
means an Event of
Default or any event or circumstance specified in clause 23 (Events of Default)
which would (with the expiry of a grace period, the giving of notice, the making
of any determination under the Finance Documents or any combination of any
of
the foregoing) be an Event of Default;
“Disruption
Event”
means either or
both of:
|
(a)
|
a
material
disruption to those payment or communications systems or to those
financial markets which are, in each case, required to operate in
order
for payments to be made in connection with the Facility (or otherwise
in
order for the transactions contemplated by the Finance Documents
to be
carried out) which disruption is not caused by, and is beyond the
control
of, any of the Parties; or
|
|
(b)
|
the
occurrence of any other event which results in a disruption (of a
technical or systems-related nature) to the treasury or payments
operations of a Party preventing that, or any other
Party:
|
|
(i)
|
from
performing its payment obligations under the Finance Documents;
or
|
|
(ii)
|
from
communicating with other Parties in accordance with the terms of
the
Finance Documents,
|
and
which (in
either such case) is not caused by, and is beyond the control of, the Party
whose operations are disrupted;
“EURIBOR”
means, in relation
to any Loan in euro:
|
(a)
|
the
applicable Screen Rate; or
|
|
(b)
|
(if
no Screen
Rate is available for the Interest Period of that Loan) the arithmetic
mean of the rates (rounded upwards to four decimal places) as supplied
to
the Agent at its request quoted by the Reference Banks to leading
banks in
the European interbank market,
|
as
of the Specified
Time on the Quotation Day for the offering of deposits in euro for a period
comparable to the Interest Period of the relevant Loan;
“Event
of
Default”
means any event or
circumstance specified as such in clause 23 (Events of Default);
“Existing
Ancillary Facility”
means the
US$120,000,000 stand-by letter of credit facility provided by The Chase
Manhattan Bank (now called JPMorgan Chase Bank, N.A.) originally in favour
of
Instinet Corporation and now in favour of Reuters C LLC (being an Affiliate
of
the Company) and dated 29 June 1998, together with the ancillary documents
relating thereto including a supporting guarantee from the Company, in each
case, as amended, supplemented and varied from time to time;
“Existing
Facility Agreement” means
the
£1,000,000,000 (as reduced to £480,000,000) Syndicated Credit Facility for the
Company arranged by the Agent and X.X. Xxxxxx plc and dated 25 April
2003;
“Extension
Request Date”
means the first
anniversary or the second anniversary of the Signing Date;
4
“Facility”
means the
multicurrency revolving credit facility made available under this agreement
as
described in clause 2 (The Facility);
“Facility
Office”
means the office
or offices notified by a Lender to the Agent in writing on or before the date
it
becomes a Lender (or, following that date, by not less than five Business Days’
written notice) as the office or offices through which it will perform its
obligations under this agreement;
“Factiva
Group”
means Dow Xxxxx
Reuters Business Interactive LLC and all of its Subsidiaries;
“Fee
Letter”
means any letter
or letters dated on or about the date of this agreement between the Arrangers
and the Company (or the Agent and the Company) setting out any of the fees
referred to in clause 13 (Fees);
“Finance
Document”
means this
agreement, any Fee Letter, any Accession Letter, any Resignation Letter, any
Ancillary Document and any other document designated as such by the Agent and
the Company;
“Finance
Party”
means the Agent,
each Arranger, a Lender and an Ancillary Lender;
“Financial
Indebtedness”
means any
indebtedness for or in respect of:
|
(a)
|
moneys
borrowed;
|
|
(b)
|
any
amount
raised by acceptance under any acceptance credit facility or
dematerialised equivalent;
|
|
(c)
|
any
amount
raised pursuant to any note purchase facility or the issue of bonds,
notes, debentures, loan stock or any similar
instrument;
|
|
(d)
|
the
amount of
any liability in respect of any lease or hire purchase contract which
would, in accordance with GAAP, be treated as a finance or capital
lease;
|
|
(e)
|
receivables
sold or discounted (other than any receivables to the extent they
are sold
on a non-recourse basis);
|
|
(f)
|
any
amount
raised under any other transaction (including any forward sale or
purchase
agreement) having the commercial effect of a
borrowing;
|
|
(g)
|
for
the
purposes of clause 23.4 (Cross Default) only, any derivative transaction
entered into in connection with protection against or benefit from
fluctuation in any rate or price (and, when calculating the value
of any
derivative transaction, only the marked to market value shall be
taken
into account);
|
|
(h)
|
any
counter-indemnity obligation in respect of a guarantee, indemnity,
bond,
standby or documentary letter of credit or any other instrument issued
by
a bank or financial institution;
and
|
|
(i)
|
the
amount of
any liability in respect of any guarantee or indemnity for any of
the
items referred to in clauses (a) to (h)
above,
|
provided
that:
|
(i)
|
Indebtedness
owing by one member of the Restricted Group to another member of
the
Restricted Group shall not be taken into account as Financial
Indebtedness; and
|
5
|
(ii)
|
a
letter of
credit or other indemnity given by a member of the Restricted Group
shall
only constitute Financial Indebtedness if the underlying obligation
itself
falls within any of paragraphs (a) to (h) (both inclusive)
above.
|
“FXMarketSpace
Group”
means
FXMarketSpace Limited and all of its Subsidiaries;
“GAAP”
means generally
accepted accounting principles in the United Kingdom;
“Group”
means the Company
and its Subsidiaries from time to time;
“Guarantor”
means the Company
or an Additional Guarantor, unless it has ceased to be a Guarantor in accordance
with clause 25 (Changes to the Obligors);
“Hedge
Fund” means
a fund which
(a) has a restricted number of qualified purchasers or high net worth investors,
(b) typically relies on a regulation exemption to the Investment Company Act
of
1940, (c) charges a management fee and/or percentage of the profits and (d)
invests in loans, securities and over the counter contracts;
“Holding
Company”
means a holding
company within the meaning of Section 736 of the Companies Xxx
0000;
“IFRS”
means
international accounting standards within the meaning of the IAS Regulation
1606/2002 to the extent applicable to the relevant financial
statements;
“Interest
Period”
means, in relation
to a Loan, each period determined in accordance with clause 11 (Interest
Periods) and, in relation to an Unpaid Sum, each period determined in accordance
with clause 10.3 (Default Interest);
“Lender”
means:
|
(a)
|
any
Original
Lender; and
|
|
(b)
|
any
bank or
financial institution which has become a Party in accordance with
clause
24 (Changes to the Lenders),
|
which
in each case
has not ceased to be a Party in accordance with the terms of this
agreement;
“LIBOR”
means, in relation
to any Loan:
|
(a)
|
the
applicable Screen Rate; or
|
|
(b)
|
(if
no Screen
Rate is available for the currency or Interest Period of that Loan)
the
arithmetic mean of the rates (rounded upwards to four decimal places)
as
supplied to the Agent at its request quoted by the Reference Banks
to
leading banks in the London interbank
market,
|
as
of the Specified
Time on the Quotation Day for the offering of deposits in the currency of that
Loan and for a period comparable to the Interest Period for that
Loan;
“Loan”
means a loan made
or to be made under the Facility or the principal amount outstanding for the
time being of that loan;
“LMA”
means the Loan
Market Association;
6
“Majority
Lenders”
means:
|
(a)
|
until
the
Total Commitments have been reduced to zero, a Lender or Lenders
whose
Commitments aggregate more than 66⅔
per cent. of
the Total Commitments (or, if the Total Commitments have been reduced
to
zero and there are no Loans or Ancillary Facilities then outstanding,
aggregated more than 66⅔
per cent. of
the Total Commitments immediately prior to the reduction);
or
|
|
(b)
|
at
any other
time, a Lender or Lenders whose participations in the Loans and Ancillary
Facilities then outstanding aggregate more than 66⅔
per cent. of
all the Loans and Ancillary Facilities then
outstanding;
|
“Mandatory
Cost”
means the
percentage rate per annum calculated by the Agent in accordance with schedule
4
(Mandatory Cost Formulae);
“Mandatory
Prepayment Event”
means an event
specified in clause 9.2 (Change of Control) or clause 9.7 (Mandatory Prepayment
Events);
“Margin”
means at any time,
the percentage rate per annum determined at such time to be the Margin in
accordance with clause 10.5 (Margin and Commitment Fee);
“Material
Adverse Effect” means
a material
adverse effect on the Group taken as a whole which would affect the ability
of
any Obligor to perform or observe any of its obligations under any of the
Finance Documents;
“Material
Subsidiary” means
at any
particular time, a member of the Restricted Group (other than an Obligor) whose
gross assets or pre-taxation profits, as at the end of or (as the case may
be)
of the latest financial year of the Group and as taken into account for the
purpose of the audited consolidated financial statements of the Group for such
financial year, represent at least ten per cent. of the consolidated gross
assets or pre-taxation profits of the Group as determined from those audited
consolidated financial statements of the Group. For this purpose:
|
(a)
|
in
the case
of a member of the Group which itself has Subsidiaries, the calculation
shall be made by comparing the consolidated gross assets or pre-taxation
profits of it and its Subsidiaries to those of the
Group;
|
|
(b)
|
assets
which
arise from transactions between members of the Group and which would
be
eliminated in the consolidated financial statements of the Group
shall be
excluded; and
|
|
(c)
|
if
a
Subsidiary which is not a Material Subsidiary on the basis of the
most
recent such accounts receives a transfer of assets or the right to
receive
any trading profits which taken together with the existing assets
or
trading profits of that Subsidiary, as the case may be, would satisfy
any
of the tests above, then that Subsidiary shall also be a Material
Subsidiary on and from the date it receives such transfer. If a Material
Subsidiary disposes of any assets or the right to receive any trading
profits such that it would on the basis of the most recent such accounts
cease to be a Material Subsidiary, then it shall be excluded as a
Material
Subsidiary on and from the date the Company next notifies the Agent
of the
identity of the Material Subsidiaries under clause 21.1(d) (Financial
Information);
|
“Month”
means a period
starting on one day in a calendar month and ending on the numerically
corresponding day in the next calendar month, except that:
|
(a)
|
(subject
to
clause (c) below) if the numerically corresponding day is not a Business
Day, that period shall end on the next Business Day in that calendar
month
in which that period is to end if there is one, or if there is not,
on the
immediately preceding Business Day;
|
7
|
(b)
|
if
there is
no numerically corresponding day in the calendar month in which that
period is to end, that period shall end on the last Business Day
in that
calendar month; and
|
|
(c)
|
if
an
Interest Period begins on the last Business Day of a calendar month,
that
Interest Period shall end on the last Business Day in the calendar
month
in which that Interest Period is to
end.
|
The
above rules
will only apply to the last Month of any period;
“Moody’s”
means Xxxxx’x
Investors Services Limited or its successor;
“Obligor”
means a Borrower
or a Guarantor;
“Optional
Currency”
means a currency
(other than the Base Currency) which complies with the conditions set out in
clause 4.3 (Conditions Relating to Optional Currencies);
“Original
Financial Statements”
means the audited
consolidated financial statements of the Group for the financial year ended
31
December 2005;
“Participating
Member State”
means any member
state of the European Community that adopts or has adopted the euro as its
lawful currency in accordance with legislation of the European Community
relating to Economic and Monetary Union;
“Party”
means a party to
this agreement;
“Qualifying
Lender”
has the meaning
given to that term in clause 14 (Tax Gross-Up and Indemnities);
“Quotation
Day”
means, in relation
to any period for which an interest rate is to be determined:
|
(a)
|
(if
the
currency is Sterling) the first day of that
period;
|
|
(b)
|
(if
the
currency is euro) two TARGET Days before the first day of that period;
or
|
|
(c)
|
(for
any
other currency) two Business Days before the first day of that
period,
|
unless
market
practice differs in the Relevant Interbank Market for a currency, in which
case
the Quotation Day for that currency will be determined by the Agent in
accordance with market practice in the Relevant Interbank Market (and if
quotations would normally be given by leading banks in the Relevant Interbank
Market on more than one day, the Quotation Day will be the last of those
days);
“Reference
Banks”
means the
principal London offices of The Royal Bank of Scotland plc, the Agent and
JPMorgan Chase Bank, N.A. or such other banks as may be appointed by the Agent
in consultation with the Company;
“Relevant
Interbank Market”
means in relation
to euro, the European interbank market and, in relation to any other currency,
the London interbank market;
“Repeating
Representations”
means:
|
(a)
|
for
the
purposes of clauses 4.2(b) (Further Conditions Precedent) and 20.11(a)
(Repetition), each of the representations set out in clauses 20.1
to 20.5
(inclusive), 20.7(a), 20.7(d), 20.7(e), 20.8 and 20.10;
and
|
8
|
(b)
|
for
the
purposes of clauses 20.11(b) (Repetition) and 25.6 (Repetition of
Representations), each of the representations set out in clauses
20.1 to
20.5 (inclusive), 20.8 and 20.10;
|
“Resignation
Letter”
means a letter
substantially in the form set out in schedule 7 (Form of Resignation
Letter);
“Restricted
Group” means
the Group
excluding:
|
(a)
|
each
member
of the FXMarketSpace Group;
|
|
(b)
|
each
member
of the Factiva Group; and
|
|
(c)
|
each
member
of the Group that:
|
|
(i)
|
is
not fully
consolidated for the purposes of the consolidated financial statements
of
the Company and its Subsidiaries from time to time;
and
|
|
(ii)
|
is
not
controlled by the Company (for this purpose “controlled”
means
the
power to direct the management and the policies, whether through
the
ownership of voting share capital by contract or
otherwise);
|
“Rollover
Loan”
means one or more
Loans:
|
(a)
|
made
or to be
made on the same day that a maturing Loan or Ancillary Facility is
due to
be repaid;
|
|
(b)
|
the
aggregate
amount of which is equal to or less than the maturing Loan or the
relevant
claim in respect of that Ancillary
Facility;
|
|
(c)
|
in
the same
currency as the maturing Loan (unless it arose as a result of the
operation of clause 7.2 (Unavailability of a Currency)) or the relevant
claim in respect of that Ancillary Facility;
and
|
|
(d)
|
made
or to be
made to the same Borrower for the purpose
of:
|
|
(i)
|
refinancing
a
maturing Loan; or
|
|
(ii)
|
satisfying
the relevant claim in respect of that Ancillary
Facility;
|
“S&P”
means
Standard and
Poor’s Rating Services, a division of the XxXxxx-Xxxx Companies, Inc. or its
successor;
“Screen
Rate”
means:
|
(a)
|
in
relation
to LIBOR, the British Bankers Association Interest Settlement Rate
for the
relevant currency and period; and
|
|
(b)
|
in
relation
to EURIBOR, the percentage rate per annum determined by the Banking
Federation of the European Union for the relevant
period,
|
displayed
on the
appropriate page of the Reuters screen. If the agreed page is replaced or
service ceases to be available, the Agent may specify another page or service
displaying the appropriate rate after consultation with the Company and the
Lenders;
“Securitisation”
means an issue of
securities by an entity outside the Group based on the credit of Securitisation
Assets where Security is given over those Securitisation Assets by a Group
member in connection with the lending or other transfer of the issue proceeds
of
the Securitisation to it or another member of the Group;
9
“Securitisation
Assets”
means Group
receivables, contracts giving rise to such receivables or providing for their
administration and any bank accounts into which the proceeds of any such
receivables are required to be paid pursuant to the Securitisation and into
which no other amounts are paid;
“Security”
means a mortgage,
charge, pledge, lien or other security interest;
“Signing
Date” means
the date of
this agreement;
“Specified
Time”
means a time
determined in accordance with schedule 10 (Timetables);
“Sterling”
has the meaning
given to that term in clause 1.2(a)(ix);
“Subsidiary”
means:
|
(a)
|
a
subsidiary
within the meaning of Section 736 of the Companies Xxx 0000;
and
|
|
(b)
|
unless
the
context otherwise requires, a subsidiary undertaking within the meaning
of
Section 258 of the Companies Xxx
0000;
|
“TARGET”
means
Trans-European Automated Real-time Gross Settlement Express Transfer payment
system;
“TARGET
Day”
means any day on
which TARGET is open for the settlement of payments in euro;
“Tax”
means any tax,
levy, impost, duty or other charge or withholding of a similar nature (including
any penalty or interest payable in connection with any failure to pay or any
delay in paying any of the same);
“Taxes
Act”
means the Income
and Corporation Taxes Xxx 0000;
“Termination
Date”
means, in relation
to a Lender, the fifth anniversary of the Signing Date or such later date as
may
be agreed by that Lender in accordance with clause 2.5(a);
“Total
Commitments”
means the
aggregate of the Commitments, being £680,000,000 at the date of this
agreement;
“Transfer
Certificate”
means a
certificate substantially in the form set out in schedule 5 (Form of Transfer
Certificate) or any other form agreed between the Agent and the
Company;
“Transfer
Date”
means, in relation
to a transfer, the later of:
|
(a)
|
the
proposed
Transfer Date specified in the Transfer Certificate;
and
|
|
(b)
|
the
date on
which the Agent executes the Transfer
Certificate;
|
“United
Kingdom” or
“UK”
means the United
Kingdom of Great Britain and Northern Ireland;
“Unpaid
Sum”
means any sum due
and payable but unpaid by an Obligor under the Finance Documents;
“Utilisation
Date”
means the date on
which a Loan is to be made;
10
“Utilisation
Request”
means a notice
substantially in the form set out in schedule 3 (Utilisation Request);
and
“VAT”
means value added
tax as provided for in the Value Added Tax Xxx 0000 and any other tax of a
similar nature.
|
1.2
|
Construction
|
|
(a)
|
Unless
a
contrary indication appears, any reference in this agreement
to:
|
|
(i)
|
the
“Agent”,
an
“Arranger”,
any
“Finance
Party”,
any
“Lender”,
any
“Ancillary
Lender”,
any
“Obligor”
or any
“Party”
shall be
construed so as to include its successors in title, permitted assigns
and
permitted transferees;
|
|
(ii)
|
“assets”
includes
present and future properties, revenues and rights of every
description;
|
|
(iii)
|
a
“Finance
Document”
or any other
agreement or instrument is a reference to that Finance Document or
other
agreement or instrument as amended or novated, supplemented, extended
or
restated;
|
|
(iv)
|
“indebtedness”
includes any
obligation (whether incurred as principal or as surety) for the payment
or
repayment of money, whether present or future, actual or
contingent;
|
|
(v)
|
a
“person”
includes any
person, firm, company, corporation, government, state or agency of
a state
or any association, trust or partnership (whether or not having separate
legal personality) or two or more of the
foregoing;
|
|
(vi)
|
a
“regulation”
includes any
regulation, rule, official directive, request or guideline (whether
or not
having the force of law) of any governmental, intergovernmental or
supranational body, agency, department or regulatory, self-regulatory
or
other authority or organisation;
|
|
(vii)
|
a
provision
of law is a reference to that provision as amended or re-enacted;
|
|
(viii)
|
a
time of day
is a reference to London time; and
|
|
(ix)
|
the
currency
of a country is to the lawful currency of that country for the time
being,
“£”
and
“Sterling”
is
a
reference to the lawful currency of the United Kingdom for the time
being,
“euro”
and
“€”
refer to the
currency introduced at the start of the third stage of the European
Economic and Monetary Union pursuant to Article 109g of the Treaty
establishing the European Community and “U.S.$”
and
“U.S.
Dollars” is
a
reference to the lawful currency of the United States of America
for the
time being.
|
|
(b)
|
Section,
clause and schedule headings are for ease of reference
only.
|
|
(c)
|
Unless
a
contrary indication appears, a term used in any other Finance Document
or
in any notice given under or in connection with any Finance Document
has
the same meaning in that Finance Document or notice as in this
agreement.
|
|
(d)
|
A
Default is
“continuing”
if it has
not been remedied or waived.
|
|
(e)
|
A
Borrower
providing “cash
cover” for
an
Ancillary Facility means a Borrower paying an amount in the currency
of
the Ancillary Facility to an interest-bearing account in the name
of the
Borrower and the following conditions being
met:
|
11
|
(i)
|
the
account
is with the Agent (if the cash cover is to be provided for all the
Lenders) or Ancillary Lender (if the cash cover is to be provided
for that
Ancillary Lender); and
|
|
(ii)
|
until
no
amount is or may be outstanding under that Ancillary Facility, withdrawals
from the account may only be made to pay a Finance Party amounts
due and
payable to it under this agreement in respect of that Ancillary
Facility.
|
|
(f)
|
A
Borrower
“repaying”
or
“prepaying”
Ancillary
Outstandings means:
|
|
(i)
|
that
Borrower
providing cash cover for the Ancillary
Outstandings;
|
|
(ii)
|
the
maximum
amount payable under the Ancillary Facility being reduced or cancelled
in
accordance with its terms; or
|
|
(iii)
|
the
Ancillary
Lender being satisfied that it has no further liability under that
Ancillary Facility,
|
and
the amount by
which Ancillary Outstandings are repaid or prepaid under paragraphs (i) and
(ii)
above is the amount of the relevant cash cover, reduction or
cancellation.
|
(g)
|
An
amount
borrowed includes any amount utilised under an Ancillary
Facility.
|
|
(h)
|
A
Lender
funding its participation in a Loan includes a Lender participating
in an
Ancillary Facility.
|
|
(i)
|
An
outstanding amount of an Ancillary Facility at any time is the maximum
amount that is or may be payable by the relevant Borrower in respect
of
that Ancillary Facility at that
time.
|
|
1.3
|
Third
Party Rights
|
|
(a)
|
Unless
expressly provided to the contrary in a Finance Document, a person
who is
not a Party has no right under the Contracts (Rights of Third Parties)
Xxx
0000 (the “Third
Parties Act”)
to enforce
or to enjoy the benefit of any term of this
agreement.
|
|
(b)
|
Notwithstanding
any term of any Finance Document, the consent of any person who is
not a
Party is not required to rescind or vary this agreement at any
time.
|
|
2.
|
THE
FACILITY
|
|
2.1
|
The
Facility
|
|
(a)
|
Subject
to
the terms of this agreement, the Lenders make available to the Borrowers
a
multicurrency revolving credit facility in an aggregate principal
amount
the Base Currency Amount of which is equal to the Total
Commitments.
|
|
(b)
|
Subject
to
the terms of this agreement and the Ancillary Documents, an Ancillary
Lender may make available an Ancillary Facility to any of the Borrowers
in
place of all or part of its Commitment under the
Facility.
|
12
|
2.2
|
Finance
Parties’ Rights and
Obligations
|
|
(a)
|
The
obligations of each Finance Party under the Finance Documents are
several.
Failure by a Finance Party to perform its obligations under the Finance
Documents does not affect the obligations of any other Party 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
each Finance Party under or in connection with the Finance Documents
are
separate and independent rights and any debt arising under the Finance
Documents to a Finance Party from an Obligor shall be a separate
and
independent debt.
|
|
(c)
|
A
Finance
Party may, except as otherwise stated in the Finance Documents, separately
enforce its rights under the Finance
Documents.
|
|
2.3
|
Obligors’
Agent
|
Each
Obligor
irrevocably authorises and instructs the Company to give and receive as agent
on
its behalf all notices (including Utilisation Requests) and sign all documents
in connection with the Finance Documents on its behalf (including Resignation
Letters under clause 25.3 (Resignation of a Borrower)) 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 Company
under or in connection with the Finance Documents.
|
2.4
|
Actions
of Company
|
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 Company;
or
|
|
(b)
|
the
Company
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
Company to inform any Obligor of receipt by it of any notification
under a
Finance Document.
|
|
2.5
|
Extension
of Termination Date
|
|
(a)
|
Subject
to
paragraph (d) below, the Company may, prior to each of the first
and
second anniversary of the Signing Date, provide the Agent with no
less
than 30 days and no more than 60 days notice with a request (an
“Extension
Request”)
to extend
the Termination Date to the date falling five years after that Extension
Request Date.
|
|
(b)
|
Upon
receipt
of an Extension Request, the Agent shall immediately notify the
Lenders.
|
|
(c)
|
Each
Lender
shall notify the Agent no later than 15 days prior to the relevant
Extension Request Date whether or not it agrees to the Termination
Date
being extended as requested. If no notice is received by the Agent
from a
Lender by the date falling 15 days prior to the relevant Extension
Request
Date, the Termination Date applicable to such Lender shall not be
extended.
|
13
|
(d)
|
No
Lender is
under any obligation to extend the Availability Period applicable
to its
Commitment.
|
|
(e)
|
As
soon as
practicable after it establishes which of the relevant Lenders (if
any)
agree to the Termination Date being so extended, the Agent shall,
by
notice to the Company and each Lender, confirm those Lenders which
have
agreed to extend the Termination Date and those Lenders which have
not
(each a “Dissenting
Lender”).
|
|
(f)
|
Should
there
be one or more Dissenting Lenders, the Company may, at any time until
the
date falling 60 days after the relevant Extension Request Date,
either:
|
|
(i)
|
cancel
such
Dissenting Lender’s Commitment in full and simultaneously prepay that
Dissenting Lender’s participation in any outstanding Loans and Ancillary
Facilities; or
|
|
(ii)
|
require
that
Dissenting Lender to transfer its Commitment and its participation
in any
outstanding Loans and Ancillary Facilities (at par) to a New Lender
in
accordance with the procedure in clause 24 (Changes to the Lenders)
and
the Termination Date applicable to that Lender will be the date requested
by the Company in the notice given by it under paragraph (a) above
(which
shall be no later than 60 days after the relevant Extension Request
Date).
|
|
(g)
|
If
any
Utilisation Request for a Loan specifies an Interest Period ending
after
the Termination Date applicable to a Lender, that Lender’s Available
Commitment shall be excluded from the calculations of the participation
pursuant to clause 5.4 (Lenders’ Participation) in relation to that
Utilisation Request and that Lender shall not participate in that
Loan.
|
|
3.
|
PURPOSE
|
|
3.1
|
Purpose
|
|
(a)
|
Each
Loan
under the Facility will be applied:
|
|
(i)
|
to
refinance
the Existing Facility Agreement; or
|
|
(ii)
|
in
or toward
the working capital and/or the general corporate purposes of the
Group.
|
|
(b)
|
Each
Ancillary Facility will be applied in respect of general corporate
purposes of the Group.
|
|
3.2
|
Monitoring
|
No
Finance Party is
bound to monitor or verify the application of any amount borrowed pursuant
to
this agreement.
|
4.
|
CONDITIONS
OF UTILISATION
|
|
4.1
|
Initial
Conditions Precedent
|
No
Borrower may
deliver a Utilisation Request unless the Agent has received all of the documents
and other evidence listed in part 1 of schedule 2 (Conditions Precedent) in
form
and substance satisfactory to the Agent (acting reasonably). The Agent shall
notify the Company and the Lenders promptly upon being so
satisfied.
14
|
4.2
|
Further
Conditions Precedent
|
The
Lenders will
only be obliged to comply with clause 5.4 (Lenders’ Participation) if on the
date of the Utilisation Request and on the proposed Utilisation Date, except
in
the case of a Rollover Loan:
|
(a)
|
no
Default or
Mandatory Prepayment Event is continuing or would result from the
proposed
Loan; and
|
|
(b)
|
the
Repeating
Representations to be made by each Obligor are true in all material
respects.
|
|
4.3
|
Conditions
Relating to Optional
Currencies
|
|
(a)
|
A
currency
will constitute an Optional Currency in relation to a Loan
if:
|
|
(i)
|
it
is readily
available in the amount required and freely convertible into the
Base
Currency in the Relevant Interbank Market on the Quotation Day and
the
Utilisation Date for that Loan; and
|
|
(ii)
|
it
is U.S.
Dollars, euro or has been approved by the Agent (acting on the
instructions of all the Lenders) on or prior to receipt by the Agent
of
the relevant Utilisation Request for that
Loan.
|
|
(b)
|
If
the Agent
has received a written request from the Company for a currency to
be
approved under clause 4.3(a)(ii), the Agent will confirm to the Company
by
the Specified Time:
|
|
(i)
|
whether
or
not the Lenders have granted their approval;
and
|
|
(ii)
|
if
approval
has been granted, the minimum amount (and, if required, integral
multiple)
for any subsequent Loan in that
currency.
|
|
4.4
|
Number
of Utilisation Requests
|
A
Borrower may not
deliver more than one Utilisation Request on any one day but such Utilisation
Request may specify any number of Loans.
|
5.
|
UTILISATION
|
|
5.1
|
Delivery
of a Utilisation Request
|
A
Borrower may
utilise the Facility by delivery to the Agent of a duly completed Utilisation
Request not later than the Specified Time.
|
5.2
|
Completion
of a Utilisation Request
|
Each
Utilisation
Request is irrevocable and will not be regarded as having been duly completed
unless:
|
(a)
|
the
proposed
Utilisation Date is a Business Day within the Availability
Period;
|
|
(b)
|
the
currency
and amount of the Loan comply with clause 5.3 (Currency and Amount);
and
|
|
(c)
|
the
proposed
Interest Period complies with clause 11 (Interest
Periods).
|
15
|
5.3
|
Currency
and Amount
|
|
(a)
|
The
currency
specified in a Utilisation Request must be the Base Currency or an
Optional Currency.
|
|
(b)
|
The
amount of
the proposed Loan must be a minimum Base Currency Amount of £10,000,000
or, if less, the Available
Facility.
|
|
5.4
|
Lenders’
Participation
|
|
(a)
|
If
the
conditions set out in this agreement have been met, each Lender shall
make
its participation in each Loan available by the Utilisation Date
through
its Facility Office.
|
|
(b)
|
The
amount of
each Lender’s participation in each Loan will be equal to the proportion
borne by its Available Commitment to the Available Facility immediately
prior to making the Loan.
|
|
(c)
|
The
Agent
shall determine the Base Currency Amount of each Loan which is to
be made
in an Optional Currency and shall notify each Lender of the amount,
currency and the Base Currency Amount of each Loan and the amount
of its
participation in that Loan, in each case by the Specified
Time.
|
|
6.
|
ANCILLARY
FACILITIES
|
|
6.1
|
Type
of Facility
|
An
Ancillary
Facility may be by way of:
|
(a)
|
a
guarantee,
documentary or stand-by letter of credit facility;
or
|
|
(b)
|
any
other
facility or accommodation required in connection with the business
of the
Group and which is agreed by the Company with an Ancillary
Lender.
|
|
6.2
|
Availability
|
|
(a)
|
If
the
Company and a Lender agree and except as otherwise provided in this
agreement, the Lender may provide an Ancillary Facility on a bilateral
basis in place of all or part of that Lender’s unutilised Commitment
(which shall (except for the purpose of determining the Majority
Lenders)
be reduced by the amount of the Ancillary Commitment under that Ancillary
Facility).
|
|
(b)
|
An
Ancillary
Facility (other than the Existing Ancillary Facility) shall not be
made
available unless, not later than 20 Business Days prior to the Ancillary
Commencement Date for an Ancillary Facility, the Agent has received
from
the Company:
|
|
(i)
|
a
notice in
writing requesting the establishment of an Ancillary Facility and
specifying:
|
|
(A)
|
the
proposed
Borrower(s) (or Affiliate of a Borrower) which may use the Ancillary
Facility;
|
|
(B)
|
the
proposed
Ancillary Commencement Date and expiry date of the Ancillary
Facility;
|
|
(C)
|
the
proposed
type of Ancillary Facility to be
provided;
|
|
(D)
|
the
proposed
Ancillary Lender;
|
16
|
(E)
|
the
proposed
Ancillary Commitment, the maximum amount of the Ancillary Facility
(if not
denominated in the Base Currency);
and
|
|
(F)
|
the
proposed
currency of the Ancillary Facility (if not denominated in the Base
Currency);
|
|
(ii)
|
a
copy of the
proposed Ancillary Document; and
|
|
(iii)
|
any
other
information which the Agent may reasonably request in connection
with the
Ancillary Facility.
|
|
(c)
|
The
Agent
shall promptly notify the Company, the Ancillary Lender and the other
Lenders of the establishment of an Ancillary Facility (other than
the
Existing Ancillary Facility).
|
|
(d)
|
No
amendment
or waiver of a term of any Ancillary Facility shall require the consent
of
any Finance Party other than the relevant Ancillary Lender unless
such
amendment or waiver itself relates to or gives rise to a matter which
would require an amendment of or under this agreement (including,
for the
avoidance of doubt, under this clause). In such a case, the provisions
of
this agreement with regard to amendments and waivers will
apply.
|
|
(e)
|
Subject
to
compliance with paragraph (b)
above:
|
|
(i)
|
the
Lender
concerned will become an Ancillary Lender;
and
|
|
(ii)
|
the
Ancillary
Facility will be available,
|
with
effect from
the date agreed by the Company and the Ancillary Lender.
|
(f)
|
JPMorgan
Chase Bank, N.A. is an Ancillary Lender in respect of the Existing
Ancillary Facility on the date of this Agreement with an Ancillary
Commitment of £56,666,666.67.
|
|
6.3
|
Terms
of Ancillary Facilities
|
|
(a)
|
Except
as
provided below, the terms of any Ancillary Facility will be those
agreed
by the Ancillary Lender and the
Company.
|
|
(b)
|
However,
those terms (except in relation to the Existing Ancillary
Facility):
|
|
(i)
|
must
be based
upon normal commercial terms at that time (except as varied by this
agreement);
|
|
(ii)
|
may
allow
only Borrowers (or Affiliates of Borrowers nominated pursuant to
clause
6.8 (Affiliates of Borrowers)) to use the Ancillary
Facility;
|
|
(iii)
|
may
not allow
the Ancillary Outstandings to exceed the Ancillary
Commitment;
|
|
(iv)
|
may
not allow
the Ancillary Commitment of a Lender to exceed the Available Commitment
with respect to the Facility of that
Lender;
|
|
(v)
|
must
not
cause the Aggregate Ancillary Commitments to exceed U.S.$120,000,000
(as
calculated by that Ancillary Lender);
and
|
|
(vi)
|
must
require
that the Ancillary Commitment is reduced to nil, and that all Ancillary
Outstandings are repaid (or cash cover provided in respect of all
the
Ancillary Outstandings) not later than the Termination Date for the
|
17
Facility
(or such earlier
date as the Commitment of the relevant Ancillary Lender (or its Affiliate)
is
reduced to zero).
|
(c)
|
If
there is
any inconsistency between any term of an Ancillary Facility (other
than
the Existing Ancillary Facility) and any term of this agreement,
this
agreement shall prevail except for:
|
|
(i)
|
clause
33.3
(Day Count Convention) which shall not prevail for the purposes of
calculating fees, interest or commission relating to an Ancillary
Facility; and
|
|
(ii)
|
an
Ancillary
Facility comprising more than one account where the terms of the
Ancillary
Documents shall prevail.
|
|
(d)
|
Interest,
commission and fees on Ancillary Facilities (other than the Existing
Ancillary Facility) are dealt with in clause 13.5 (Interest, Commission
and Fees on Ancillary Facilities).
|
|
6.4
|
Repayment
of Ancillary Facility
|
|
(a)
|
An
Ancillary
Facility (other than the Existing Ancillary Facility) shall cease
to be
available on the Termination Date applicable to a Lender or such
earlier
date on which its expiry date occurs or on which it is cancelled
in
accordance with the terms of this
agreement.
|
|
(b)
|
If
an
Ancillary Facility expires in accordance with its terms the Ancillary
Commitment of the Ancillary Lender shall be reduced to zero (and
its
Commitment shall be increased
accordingly).
|
|
(c)
|
If
the
Ancillary Commitment of any Ancillary Lender under an Ancillary Facility
reduces, its Commitment shall be increased
accordingly.
|
|
(d)
|
No
Ancillary
Lender may demand repayment or prepayment of any amounts or demand
cash
cover for any liabilities made available or incurred by it under
its
Ancillary Facility (except in the case of the Existing Ancillary
Facility
or where the Ancillary Facility is provided on a net limit basis
to the
extent required to bring any gross outstandings down to the net limit)
unless:
|
|
(i)
|
the
Total
Commitments have been cancelled in full, or all outstanding Loans
under
the Facility have become due and payable in accordance with the terms
of
this agreement, or the Agent has declared all outstanding Loans under
the
Facility immediately due and payable, or the expiry date of the Ancillary
Facility occurs; or
|
|
(ii)
|
it
becomes
unlawful in any applicable jurisdiction for the Ancillary Lender
to
perform any of its obligations as contemplated by this agreement
or to
fund, issue or maintain its participation in its Ancillary Facility;
or
|
|
(iii)
|
the
Ancillary
Outstandings (if any) under that Ancillary Facility can be refinanced
by a
Loan under the Facility and the Ancillary Lender gives sufficient
notice
to enable a Loan of the Facility to be made to refinance those Ancillary
Outstandings.
|
|
(e)
|
For
the
purposes of determining whether or not the Ancillary Outstandings
under an
Ancillary Facility mentioned in paragraph (c)(iii) above can be refinanced
by a Loan of the Facility:
|
|
(i)
|
the
Commitment of the Ancillary Lender will be increased by the amount
of its
Ancillary Commitment; and
|
18
|
(ii)
|
the
Loan may
(so long as paragraph (c)(i) above does not apply) be made irrespective
of
whether a Default is outstanding or any other applicable condition
precedent is not satisfied (but only to the extent that the proceeds
are
applied in refinancing those Ancillary Outstandings) and irrespective
of
whether clause 4.4 (Number of Utilisation Requests) or clause 5.2(b)
(Completion of a Utilisation Request)
applies.
|
|
(f)
|
On
the making
of a Loan of the Facility to refinance Ancillary
Outstandings:
|
|
(i)
|
each
Lender
will participate in that Loan in an amount (as determined by the
Agent)
which will result as nearly as possible in the aggregate amount of
its
participation in the Loans then outstanding bearing the same proportion
to
the aggregate amount of the Loans then outstanding as its Commitment
bears
to the Total Commitments; and
|
|
(ii)
|
the
relevant
Ancillary Facility shall be
cancelled.
|
|
6.5
|
Ancillary
Outstandings
|
Each
Borrower and
each Ancillary Lender agrees with and for the benefit of each Lender that the
Ancillary Outstandings under any Ancillary Facility provided by that Ancillary
Lender shall not exceed the Ancillary Commitment applicable to that Ancillary
Facility.
|
6.6
|
Information
|
Each
Borrower and
each Ancillary Lender shall, promptly upon request by the Agent, supply the
Agent with any information relating to the operation of an Ancillary Facility
(including the Ancillary Outstandings) as the Agent may reasonably request
from
time to time. Each Borrower consents to all such information being released
to
the Agent and the other Finance Parties.
| 6.7 |
Affiliates
of Lenders as Ancillary
Lenders
|
|
(a)
|
Subject
to
the terms of this agreement, an Affiliate of a Lender may become
an
Ancillary Lender. In such case, the Lender and its Affiliate shall
be
treated as a single Lender having a Commitment of the relevant Lender.
For
the purposes of calculating the Lender’s Available Commitment with respect
to the Facility, the Lender’s Commitment shall be reduced to the extent of
the aggregate of the Ancillary Commitments of its
Affiliates.
|
|
(b)
|
The
Company
shall specify any relevant Affiliate of a Lender in any notice delivered
by the Company to the Agent pursuant to clause 6.2(b)(i)
(Availability).
|
|
(c)
|
An
Affiliate
of a Lender which becomes an Ancillary Lender shall accede to this
agreement by delivery to the Agent of a duly completed Transfer
Certificate.
|
|
(d)
|
If
a Lender
assigns all of its rights and benefits or transfers all of its rights
and
obligations to a New Lender (as defined in clause 24.1 (Assignments
and
Transfers by the Lenders)), its Affiliate shall cease to have any
obligations under this agreement or any Ancillary
Document.
|
|
(e)
|
Where
this
agreement or any other Finance Document imposes an obligation on
an
Ancillary Lender and the relevant Ancillary Lender is an Affiliate
of a
Lender which is not a party to that document, the relevant Lender
shall
ensure that the obligation is performed by its
Affiliate.
|
19
|
6.8
|
Affiliates
of Borrowers
|
|
(a)
|
Subject
to
the terms of this agreement, an Affiliate of a Borrower may with
the
approval of the relevant Lender become a borrower with respect to
an
Ancillary Facility.
|
|
(b)
|
The
Company
shall specify any relevant Affiliate of a Borrower in any notice
delivered
by the Company to the Agent pursuant to clause 6.2(b)(i)
(Availability).
|
|
(c)
|
If
a Borrower
ceases to be a Borrower under this agreement in accordance with clause
25.3 (Resignation of a Borrower), its Affiliate shall cease to have
any
rights under this agreement or any Ancillary
Document.
|
|
(d)
|
Where
this
agreement or any other Finance Document imposes an obligation on
a
Borrower under an Ancillary Facility and the relevant Borrower is
an
Affiliate of a Borrower which is not a party to that document, the
relevant Borrower shall ensure that the obligation is performed by
its
Affiliate.
|
|
(e)
|
Any
reference
in this agreement or any other Finance Document to a Borrower being
under
no obligations (whether actual or contingent) as a Borrower under
such
Finance Document shall be construed to include a reference to any
Affiliate of a Borrower being under no obligations under any Finance
Document or Ancillary Document.
|
|
6.9
|
Commitment
Amounts
|
Notwithstanding
any
other term of this agreement, each Lender shall ensure that at all times its
Commitment is not less than:
|
(a)
|
its
Ancillary
Commitment; or
|
|
(b)
|
the
Ancillary
Commitment of its Affiliate.
|
|
7.
|
OPTIONAL
CURRENCIES
|
|
7.1
|
Selection
of Currency
|
A
Borrower (or the
Company on behalf of a Borrower) shall select the currency of a Loan in a
Utilisation Request.
|
7.2
|
Unavailability
of a Currency
|
If
before the
Specified Time:
|
(a)
|
a
Lender
notifies the Agent that the Optional Currency (other than U.S. Dollars
or
euro) requested is not readily available to it in the amount required;
or
|
|
(b)
|
a
Lender
notifies the Agent that compliance with its obligation to participate
in a
Loan in the proposed Optional Currency would contravene a law or
regulation applicable to it,
|
the
Agent will give
notice to the relevant Borrower to that effect by the Specified Time on that
day. In this event, any Lender that gives notice pursuant to this clause 7.2
will be required to participate in the Loan in the Base Currency (in an amount
equal to that Lender’s proportion of the Base Currency Amount or, in respect of
a Rollover Loan, an amount equal to that Lender’s proportion of the Base
Currency Amount of the maturing Loan that is due to be made) and its
participation will be treated as a separate Loan denominated in the Base
Currency during that Interest Period.
20
|
7.3
|
Participation
in a Loan
|
Each
Lender’s
participation in a Loan will be determined in accordance with clause 5.4(b)
(Lenders’ Participation).
|
8.
|
REPAYMENT
|
Each
Borrower which
has drawn a Loan shall repay that Loan on the last day of its Interest
Period.
|
9.
|
PREPAYMENT
AND CANCELLATION
|
|
9.1
|
Illegality
|
If
it becomes
unlawful in any applicable jurisdiction for a Lender to perform any of its
obligations as contemplated by this agreement or to fund or maintain its
participation in any Loan:
|
(a)
|
that
Lender
shall promptly notify the Agent upon becoming aware of that
event;
|
|
(b)
|
upon
the
Agent notifying the Company, the Commitment of that Lender will be
immediately cancelled; and
|
|
(c)
|
each
Borrower
shall repay that Lender’s participation in the Loans made to that Borrower
on the last day of the Interest Period for each Loan occurring after
the
Agent has notified the Company or, if earlier, the date specified
by the
Lender in the notice delivered to the Agent (being no earlier than
the
last day of any applicable grace period permitted by
law).
|
|
9.2
|
Change
of Control
|
|
(a)
|
Subject
to
clause 9.2(d), if any person or group of persons acting in concert
gains
control of the Company:
|
|
(i)
|
the
Company
shall promptly notify the Agent upon becoming aware of that
event;
|
|
(ii)
|
if
the
Majority Lenders so require, the Agent shall, by not less than 14
days’
notice to the Company, cancel the Total Commitments and declare all
outstanding Loans, together with accrued interest, and all other
amounts
accrued under the Finance Documents immediately due and payable,
whereupon
the Total Commitments will be cancelled and all such outstanding
amounts
will become immediately due and
payable.
|
|
(b)
|
For
the
purpose of clause 9.2(a) above “control”
shall have
the meaning as defined in section 416 of the Taxes
Act;
|
|
(c)
|
For
the
purpose of clause 9.2(a) above “acting
in concert”
shall have
the meaning as defined in the City Code on Takeovers and Mergers;
and
|
|
(d)
|
Clause
9.2(a)
will not apply where a change in control occurs as a result of a
scheme of
arrangement which effects the interposition of a limited liability
company
(“NewCo”)
between the
shareholders of the Company immediately prior to the scheme of arrangement
(the “Existing
Shareholders”)
and the
Company provided immediately after completion of the scheme of arrangement
the Existing Shareholders are the only shareholders of NewCo and
that all
Subsidiaries of the Company immediately prior to the scheme of arrangement
are Subsidiaries of the Company immediately after completion of the
scheme
of arrangement or any other scheme of arrangement which does not
prejudice
the interests of the Lenders.
|
21
|
9.3
|
Voluntary
Cancellation
|
|
(a)
|
The
Company
may, if it gives the Agent not less than five Business Days’ (or such
shorter period as the Majority Lenders may agree) prior notice, cancel
the
whole or any part (being a minimum amount of £10,000,000) of the Available
Facility.
|
|
(b)
|
Any
voluntary
cancellation under clause 9.3(a) will be
applied:
|
|
(i)
|
firstly,
against the Available Commitments pro rata;
and
|
|
(ii)
|
secondly,
in
cancellation of any outstanding Ancillary Facilities pro rata between
the
participations of the Lenders in such Ancillary
Facilities.
|
|
9.4
|
Voluntary
Prepayment of Loans
|
|
(a)
|
The
Borrower
to which a Loan has been made may, if it gives the Agent not less
than
five Business Days’ (or such shorter period as the Majority Lenders may
agree) prior notice, prepay the whole or any part of a Loan (but
if in
part, being an amount that reduces the Base Currency Amount of the
Loan by
a minimum amount of £10,000,000).
|
|
(b)
|
Any
voluntary
prepayment under clause 9.4(a) will be applied against the Loans
pro rata
(or against such Loans as the relevant Borrower shall designate in
the
notice of prepayment) and pro rata between the participations of
the
Lenders in such Loans.
|
|
9.5
|
Right
of Repayment and Cancellation in Relation to a Single
Lender
|
|
(a)
|
If:
|
|
(i)
|
any
sum
payable to any Lender by an Obligor is required to be increased under
clause 14.2(c) (Tax Gross-Up); or
|
|
(ii)
|
any
Lender
claims indemnification from the Company under clause 15.1 (Increased
Costs),
|
the
Company may,
whilst the circumstance giving rise to the requirement or indemnification
continues, give the Agent notice of cancellation of the Commitment of that
Lender and its intention to procure the repayment of that Lender’s participation
in the Loans.
|
(b)
|
On
receipt of
a notice referred to in clause 9.5(a), the Commitment of that Lender
shall
immediately be reduced to zero.
|
|
(c)
|
On
the last
day of each Interest Period which ends after the Company has given
notice
under clause 9.5(a) (or, if earlier, the date specified by the Company
in
that notice), each Borrower to which a Loan is outstanding shall
repay
that Lender’s participation in that
Loan.
|
|
9.6
|
Restrictions
|
|
(a)
|
Any
notice of
cancellation or prepayment given by any Party under this clause 9
shall be
irrevocable and, unless a contrary indication appears in this agreement,
shall specify the date or dates upon which the relevant cancellation
or
prepayment is to be made and the amount of that cancellation or
prepayment.
|
|
(b)
|
Any
prepayment under this agreement shall be made together with accrued
interest on the amount prepaid and, subject to any Break Costs, without
premium or penalty.
|
22
|
(c)
|
Unless
a
contrary indication appears in this agreement, any part of the Facility
which is prepaid may be reborrowed in accordance with the terms of
this
agreement.
|
|
(d)
|
The
Borrowers
shall not repay or prepay all or any part of the Loans or cancel
all or
any part of the Commitments except at the times and in the manner
expressly provided for in this
agreement.
|
|
(e)
|
No
amount of
the Total Commitments cancelled under this agreement may be subsequently
reinstated.
|
|
(f)
|
If
the Agent
receives a notice under this clause 9 it shall promptly forward a
copy of
that notice to either the Company or the affected Lender, as
appropriate.
|
|
9.7
|
Mandatory
Prepayment Events
|
|
(a)
|
If
at any
time:
|
|
(i)
|
it
is or
becomes unlawful for any Obligor to perform any of its obligations
under
the Finance Documents in any material respect;
or
|
|
(ii)
|
the
guarantee
of any Guarantor under clause 19 (Guarantee and Indemnity) is not
effective or is alleged by that Guarantor to be ineffective for any
reason,
|
then
the Agent
shall, if instructed to do so by the Majority Lenders, by notice to the
Company:
|
(A)
|
call
for
prepayment of all the outstanding Loans and Ancillary Outstandings
on such
date as it may specify in such notice whereupon all such Loans and
Ancillary Outstandings 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; and
|
|
(B)
|
declare
that
the Total Commitments shall be cancelled, whereupon the Total Commitments
shall be cancelled and the Commitments of each Lender shall be cancelled
and reduced to zero.
|
|
(b)
|
If
a
Mandatory Prepayment Event occurs in respect of a Guarantor (other
than
the Company) under paragraph (a)(i) above (in respect of its obligations
as a Guarantor only) or under paragraph (a)(ii) above, the Agent
shall not
be entitled to give a notice to the Company in accordance with paragraphs
(a)(A) or (a)(B) above, if:
|
|
(i)
|
within
five
Business Days of becoming aware of the relevant Mandatory Prepayment
Event, the relevant Guarantor ceases to be a Guarantor in accordance
with
clause 25.5 (Resignation of a Guarantor);
and
|
|
(ii)
|
at
the time
of it ceasing to be a Guarantor, there is no breach of clause 22.4
(Upstream Guarantees).
|
|
9.8
|
Mandatory
Prepayment by Borrowers
|
If
any Borrower
(other than the Company) ceases to be a wholly-owned Subsidiary of the Company
it shall forthwith prepay all outstanding Loans and Ancillary Outstandings
made
to it together with all amounts payable by it under this agreement and thereupon
cease to be a Borrower.
23
|
10.
|
INTEREST
|
|
10.1
|
Calculation
of Interest
|
The
rate of
interest on each Loan for each Interest Period is the percentage rate per annum
which is the aggregate of the applicable:
|
(a)
|
Margin;
|
|
(b)
|
LIBOR
or, in
relation to any Loan in euro, EURIBOR;
and
|
|
(c)
|
Mandatory
Cost, if any.
|
|
10.2
|
Payment
of Interest
|
The
Borrower to
which a Loan has been made shall pay accrued interest on that Loan on the last
day of each Interest Period (and, if the Interest Period is longer than six
Months, on the dates falling at six monthly intervals after the first day of
the
Interest Period).
|
10.3
|
Default
Interest
|
|
(a)
|
If
an Obligor
fails to pay any amount payable by it under a Finance Document on
its due
date, interest shall accrue on the overdue amount from the due date
up to
the date of actual payment (both before and after judgment) at a
rate
which, subject to clause 10.3(b), is one per cent. per annum higher
than
the rate which would have been payable if the overdue amount had,
during
the period of non-payment, constituted a Loan in the currency of
the
overdue amount for successive Interest Periods, each of a duration
selected by the Agent (acting reasonably). Any interest accruing
under
this clause 10.3 shall be immediately payable by the Obligor on demand
by
the Agent.
|
|
(b)
|
If
any
overdue amount consists of all or part of a Loan which became due
on a day
which was not the last day of an Interest Period relating to that
Loan:
|
|
(i)
|
the
first
Interest Period for that overdue amount shall have a duration equal
to the
unexpired portion of the current Interest Period relating to that
Loan;
and
|
|
(ii)
|
the
rate of
interest applying to the overdue amount during that first Interest
Period
shall be one per cent. per annum higher than the rate which would
have
applied if the overdue amount had not become
due.
|
|
(c)
|
Default
interest (if unpaid) arising on an overdue amount will be compounded
with
the overdue amount at the end of each Interest Period applicable
to that
overdue amount but will remain immediately due and
payable.
|
|
10.4
|
Notification
of Rates of Interest
|
The
Agent shall
promptly notify the Lenders and the relevant Borrower of the determination
of a
rate of interest under this agreement.
|
10.5
|
Margin
and Commitment Fee
|
|
(a)
|
The
Margin
(expressed as a percentage per annum) will be set in accordance with
clauses 10.5(b) and (c) to the percentage rate specified in the table
below set opposite the long term credit rating assigned by the Rating
Agencies to the Company, as
follows:
|
24
|
Credit
Rating by Xxxxx’x/S&P
|
Margin
(per
cent. per annum)
|
|
|
A+/A1
|
0.125
|
|
|
X/X0
|
0.000
|
|
|
X-/X0
|
0.175
|
|
|
BBB+/Baa1
|
0.225
|
|
|
BBB/Baa2
|
0.250
|
|
|
BBB-/Baa3
or
lower
|
0.275
|
|
(b)
|
Promptly
after becoming aware of the same, the Company shall notify the Agent
in
writing if any change in the long term credit rating assigned to
the
Company occurs or the circumstances contemplated by clause 10.5(d)(v)
arise (each an “Adjustment
Event”).
|
|
(c)
|
(i)
|
The
Margin
will be adjusted (if applicable) three Business Days after receipt
by the
Agent of notification of an Adjustment Event in accordance with clause
10.5(b) or, if earlier, three Business Days after the date on which
the
Agent otherwise becomes aware of that Adjustment Event;
and
|
|
(ii)
|
The
Agent
shall notify in writing the Lenders and the Company of any adjustment
to
the Margin under sub-paragraph (i)
above.
|
|
(d)
|
For
the
purposes of this clause 10.5:
|
|
(i)
|
“Rating
Agency”
means either
of Xxxxx’x and S&P;
|
|
(ii)
|
the
“long
term credit rating”,
means at
any time, the long term unsecured credit rating assigned at that
time to
the Company by a Rating Agency;
|
|
(iii)
|
if
at any
time there is a difference in the long term credit rating assigned
to the
Company by the Rating Agencies, the applicable Margin will be determined
as the average of the margin levels specified opposite the relevant
ratings in the table set out in clause
10.5(a).
|
|
(iv)
|
if
only one
Rating Agency assigns a long term credit rating the Margin will be
determined on the basis of the rating of that Rating Agency;
and
|
|
(v)
|
if
there is
no long term credit rating assigned by either Rating Agency, the
Margin
will be determined as if Xxxxx’x and S&P had assigned long term credit
ratings of BBB- and Baa3
respectively.
|
|
(e)
|
The
commitment fee referred to in clause 13.1 (Commitment Fee) shall
be on
each day thirty per cent. of the Margin which would be applicable
to a
Loan if that were drawn on such
day.
|
|
11.
|
INTEREST
PERIODS
|
|
11.1
|
Selection
of Interest Periods
|
|
(a)
|
A
Borrower
(or the Company on behalf of a Borrower) may select an Interest Period
for
a Loan in the Utilisation Request for that
Loan.
|
|
(b)
|
Subject
to
this clause 11, a Borrower (or the Company) may select an Interest
Period
of 1, 2, 3 or 6 Months or any other period agreed between the Company
and
the Agent (acting on the instructions of all the Lenders).
|
25
|
(c)
|
An
Interest
Period for a Loan shall not extend beyond the Termination
Date.
|
|
(d)
|
Each
Interest
Period for a Loan shall start on the Utilisation
Date.
|
|
(e)
|
A
Loan has
one Interest Period only.
|
|
11.2
|
Non-Business
Days
|
If
an Interest
Period would otherwise end on a day which is not a Business Day, that Interest
Period will instead end on the next Business Day in that calendar month (if
there is one) or the preceding Business Day (if there is not).
|
12.
|
CHANGES
TO THE CALCULATION OF
INTEREST
|
|
12.1
|
Absence
of Quotations
|
Subject
to clause
12.2 (Market Disruption), if LIBOR or, if applicable, EURIBOR is to be
determined by reference to the Reference Banks but a Reference Bank does not
supply a quotation by the Specified Time on the Quotation Day, the applicable
LIBOR or EURIBOR shall be determined on the basis of the quotations of the
remaining Reference Banks.
|
12.2
|
Market
Disruption
|
|
(a)
|
If
a Market
Disruption Event occurs in relation to a Loan for any Interest Period,
then the rate of interest on each Lender’s share of that Loan for the
Interest Period shall be the percentage rate per annum which is the
sum
of:
|
|
(i)
|
the
Margin;
|
|
(ii)
|
the
rate
notified to the Agent by that Lender as soon as practicable and in
any
event before interest is due to be paid in respect of that Interest
Period, to be that which expresses as a percentage rate per annum
the cost
to that Lender of funding its participation in that Loan from whatever
source it may reasonably select;
and
|
|
(iii)
|
the
Mandatory
Cost, if any, applicable to that Lender’s participation in the
Loan.
|
|
(b)
|
In
this
agreement “Market
Disruption Event”
means:
|
|
(i)
|
at
or about
noon on the Quotation Day for the relevant Interest Period the Screen
Rate
is not available and none or only one of the Reference Banks supplies
a
rate to the Agent to determine LIBOR or, if applicable, EURIBOR for
the
relevant currency and Interest Period;
or
|
|
(ii)
|
before
close
of business in London on the Quotation Day for the relevant Interest
Period, the Agent receives notifications from a Lender or Lenders
(whose
participations in a Loan exceed 35 per cent. of that Loan) that the
cost
to it of obtaining matching deposits in the Relevant Interbank Market
would be in excess of LIBOR or, if applicable,
EURIBOR.
|
|
12.3
|
Alternative
Basis of Interest or
Funding
|
|
(a)
|
If
a Market
Disruption Event occurs and the Agent or the Company so requires,
the
Agent and the Company shall enter into negotiations (for a period
of not
more than 30 days) with a view to agreeing a substitute basis for
determining the rate of interest.
|
26
|
(b)
|
Any
alternative basis agreed pursuant to clause 12.3(a) shall, with the
prior
consent of all the Lenders and the Company, be binding on all
Parties.
|
|
12.4
|
Break
Costs
|
|
(a)
|
Each
Borrower
shall, within three Business Days of demand by a Finance Party, pay
to
that Finance Party its Break Costs attributable to all or any part
of a
Loan or Unpaid Sum being paid by that Borrower on a day other than
the
last day of an Interest Period for that Loan or Unpaid
Sum.
|
|
(b)
|
Each
Lender
shall, as soon as reasonably practicable after a demand by the Agent,
provide a certificate confirming the amount of its Break Costs for
any
Interest Period in which they
accrue.
|
|
13.
|
FEES
|
|
13.1
|
Commitment
Fee
|
|
(a)
|
The
Company
shall pay to the Agent (for the account of each Lender) a commitment
fee
in the Base Currency computed at 30 per cent. of the Margin per annum
on
that Lender’s Available Commitment for the Availability
Period.
|
|
(b)
|
The
accrued
commitment fee is payable on the last day of each successive period
of
three Months which ends during the Availability Period, on the last
day of
the Availability Period and, if cancelled in full, on the cancelled
amount
of the relevant Lender’s Commitment at the time the cancellation is
effective.
|
|
13.2
|
Agency
Fee
|
The
Company shall
pay to the Agent (for its own account) an agency fee in the amount and at the
times agreed in a Fee Letter.
|
13.3
|
Extension
Fee
|
Upon
each extension
in accordance with clause 2.5 (Extension of Termination Date), the Company
shall
pay to the Agent (for distribution to each Lender which is not a Dissenting
Lender pro rata to its proportion of the Total Commitments as simultaneously
extended) an extension fee in an amount to be agreed between the Company and
the
Agent on the date of the relevant Extension Request.
|
13.4
|
Up-front
Fee
|
The
Company shall
pay to the Agent (for distribution to each Lender pro rata to the proportion
of
its Commitment) an up-front fee in the amount and at the times agreed in a
Fee
Letter.
|
13.5
|
Interest,
Commission and Fees on Ancillary
Facilities
|
The
rate and time
of payment of interest, commission, fees and any other remuneration in respect
of each Ancillary Facility shall be determined by agreement between the relevant
Ancillary Lender and the Borrower of that Ancillary Facility based upon normal
market rates and terms.
27
|
14.
|
TAX
GROSS-UP AND INDEMNITIES
|
|
14.1
|
Definitions
|
|
(a)
|
In
this
agreement:
|
“Qualifying
Lender”
means:
|
(i)
|
a
Lender
which is beneficially entitled to interest payable to that Lender
in
respect of a Loan and is:
|
|
(A)
|
a
Lender:
|
|
(aa)
|
which
is a
bank (as defined for the purpose of section 349 of the Taxes Act)
making a
Loan; or
|
|
(bb)
|
in
respect of
a Loan by a person that was a bank (as defined for the purpose of
section
349 of the Taxes Act) at the time that that Loan was
made,
|
and
which is within
the charge to United Kingdom corporation tax as respects any payments of
interest made in respect of that Loan; or
|
(B)
|
a
Lender
which is:
|
|
(aa)
|
a
company
resident in the United Kingdom for United Kingdom tax
purposes;
|
|
(bb)
|
a
partnership
each member of which is:
|
| (1) |
a
company so
resident in the United Kingdom; or
|
|
(2)
|
a
company not
so resident in the United Kingdom which carries on a trade in the
United
Kingdom through a permanent establishment and which brings into account
in
computing its chargeable profits (for the purposes of section 11(2)
of the
Taxes Act) the whole of any share of interest payable in respect
of that
Loan that falls to it by reason of sections 114 and 115 of the Taxes
Act;
|
|
(cc)
|
a
company not
so resident in the United Kingdom which carries on a trade in the
United
Kingdom through a permanent establishment and which brings into account
interest payable in respect of that Loan in computing the chargeable
profits (for the purposes of section 11(2) of the Taxes Act) of that
company; or
|
|
(C)
|
a
Treaty
Lender.
|
“Tax
Confirmation”
means a
confirmation by a Lender that the person beneficially entitled to interest
payable to that Lender in respect of a Loan is:
|
(i)
|
a
company
resident in the United Kingdom for United Kingdom tax
purposes;
|
|
(ii)
|
a
partnership
each member of which is:
|
|
(A)
|
a
company so
resident in the United Kingdom; or
|
28
|
(B)
|
a
company not
so resident in the United Kingdom which carries on a trade in the
United
Kingdom through a permanent establishment and which brings into account
in
computing its chargeable profits (for the purposes of section 11(2)
of the
Taxes Act) the whole of any share of interest payable in respect
of that
Loan that falls to it by reason of sections 114 and 115 of the Taxes
Act;
or
|
|
(iii)
|
a
company not
so resident in the United Kingdom which carries on a trade in the
United
Kingdom through a permanent establishment and which brings into account
interest payable in respect of that Loan in computing the chargeable
profits (for the purposes of section 11(2) of the Taxes Act) of that
company;
|
“Tax
Credit”
means a credit
against, relief or remission for, or repayment of any Tax;
“Tax
Deduction”
means a deduction
or withholding for or on account of Tax from a payment under a Finance
Document;
“Tax
Payment”
means either the
increase in a payment made by an Obligor to a Finance Party under clause 14.2
(Tax Gross-Up);
“Treaty
Lender”
means a Lender
which:
|
(i)
|
is
treated as
a resident of a Treaty State for the purposes of the
Treaty;
|
|
(ii)
|
does
not
carry on a business in the United Kingdom through a permanent
establishment with which that Lender’s participation in the Loan is
effectively connected.
|
“Treaty
State”
means a
jurisdiction having a double taxation agreement (a “Treaty”)
with the United
Kingdom which makes provision for full exemption from tax imposed by the United
Kingdom on interest.
“UK
Non-Bank Lender”
means where a
Lender becomes a Party after the day on which this agreement is entered into,
a
Lender which gives a Tax Confirmation in the Transfer Certificate which it
executes on becoming a Party.
|
(b)
|
Unless
a
contrary indication appears, in this clause 14 a reference to “determines”
or
“determined”
means a
determination made in the absolute discretion of the person making
the
determination.
|
|
14.2
|
Tax
Gross-Up
|
|
(a)
|
Each
Obligor
shall make all payments to be made by it without any Tax Deduction,
unless
a Tax Deduction is required by law.
|
|
(b)
|
The
Company
shall promptly upon becoming aware that an Obligor must make a Tax
Deduction (or that there is any change in the rate or the basis of
a Tax
Deduction) notify the Agent accordingly. Similarly, a Lender shall
notify
the Agent on becoming so aware in respect of a payment payable to
that
Lender. If the Agent receives such notification from a Lender it
shall
notify the Company and that
Obligor.
|
|
(c)
|
If
a Tax
Deduction is required by law to be made by an Obligor, the amount
of the
payment due from that Obligor shall be increased to an amount which
(after
making any Tax Deduction) leaves an amount equal to the payment which
would have been due if no Tax Deduction had been
required.
|
29
|
(d)
|
An
Obligor is
not required to make an increased payment to a Lender under clause
14.2(c)
for a Tax Deduction in respect of tax imposed by the United Kingdom
from a
payment of interest on a Loan, if on the date on which the payment
falls
due:
|
|
(i) |
the
payment
could have been made to the relevant Lender without a Tax Deduction
if it
was a Qualifying Lender, but on that date that Lender is not or has
ceased
to be a Qualifying Lender other than as a result of any change after
the
date it became a Lender under this agreement in (or in the interpretation,
administration, or application of) any law or Treaty, or any published
practice or concession of any relevant taxing authority;
or |
|
(ii) |
(A) |
the
relevant
Lender is a Qualifying Lender solely under clause 14.1(a)(i)(B)
of the
definition of Qualifying
Lender; |
|
(B)
|
the
Board of
the HM Revenue & Customs has given (and not revoked) a direction (a
“Direction”)
under
section 349C of the Taxes Act (as that provision has effect on the
date on
which the relevant Lender became a Party) which relates to that payment
and that Lender has received from that Obligor or the Company a certified
copy of that Direction; and
|
|
(C)
|
the
payment
could have been made to the Lender without any Tax Deduction in the
absence of that Direction; or
|
|
(iii)
|
the
relevant
Lender is a Qualifying Lender solely under clause 14.1(a)(i)(B) of
the
definition of Qualifying Lender and it has not, other than by reason
of
any change after the date of this agreement in (or in the interpretation,
administration, or application of) any law, or any published practice
or
concession of any relevant taxing authority, given a Tax Confirmation
to
the Company; or
|
|
(iv)
|
the
relevant
Lender is a Treaty Lender and the Obligor making the payment is able
to
demonstrate that the payment could have been made to the Lender without
the Tax Deduction had that Lender complied with its obligations under
clause 14.2(g).
|
|
(e)
|
If
an Obligor
is required to make a Tax Deduction, that Obligor shall make that
Tax
Deduction and any payment required in connection with that Tax Deduction
within the time allowed and in the minimum amount required by
law.
|
|
(f)
|
Within
30
days of making either a Tax Deduction or any payment required in
connection with that Tax Deduction, the Obligor making that Tax Deduction
shall deliver to the Agent for the Finance Party entitled to the
payment
evidence reasonably satisfactory to that Finance Party that the Tax
Deduction has been made or (as applicable) any appropriate payment
paid to
the relevant taxing authority.
|
|
(g)
|
A
Treaty
Lender and each Obligor which makes a payment to which that Treaty
Lender
is entitled shall co-operate in completing any procedural formalities
necessary for that Obligor to obtain authorisation to make that payment
without a Tax Deduction.
|
|
(h)
|
A
UK Non-Bank
Lender which becomes a Party on the day on which this agreement is
entered
into gives a Tax Confirmation to the Company by entering into this
agreement.
|
|
(i)
|
A
UK Non-Bank
Lender shall promptly notify the Company and the Agent if there is
any
change in the position from that set out in the Tax
Confirmation.
|
30
|
14.3
|
Tax
Credit
|
If
an Obligor makes
a Tax Payment and the relevant Finance Party determines that:
|
(a)
|
a
Tax Credit
is attributable either to an increased payment of which that Tax
Payment
forms part, or to that Tax Payment;
and
|
|
(b)
|
that
Finance
Party has obtained, utilised and fully retained that Tax Credit on
an
affiliated group basis,
|
the
Finance Party
shall pay an amount to the Obligor which that Finance Party determines will
leave it (after that payment) in the same after-Tax position as it would have
been in had the Tax Payment not been required to be made by the
Obligor.
|
14.4
|
Stamp
Taxes
|
The
Company shall
pay and, within three Business Days of demand, indemnify each Finance Party
against any cost, loss or liability that Finance Party incurs in relation to
all
stamp duty, registration and other similar Taxes payable in respect of any
Finance Document.
|
14.5
|
Value
Added Tax
|
|
(a)
|
All
amounts
set out, or expressed to be payable under a Finance Document by any
Party
to a Finance Party which (in whole or in part) constitute the
consideration for VAT purposes shall be deemed to be exclusive of
any VAT
which is chargeable on such supply, and accordingly, subject to clause
14.5(c), if VAT is chargeable on any supply made by any Finance Party
to
any Party under a Finance Document, that Party shall pay to the Finance
Party (in addition to and at the same time as paying the consideration)
an
amount equal to the amount of the VAT upon such Finance Party providing
an
appropriate VAT invoice to such
Party.
|
|
(b)
|
If
VAT is
chargeable on any supply made by any Finance Party (the “Supplier”)
to any
other Finance Party (the “Recipient”)
under a
Finance Document, and any Party (the “Relevant
Party”)
is required
by the terms of any Finance Document to pay an amount equal to the
consideration for such supply to the Supplier (rather than being
required
to reimburse the Recipient in respect of that consideration), such
Party
shall also pay to the Supplier (in addition to and at the same time
as
paying such amount) an amount equal to the amount of such VAT. The
Recipient will promptly pay to the Relevant Party an amount equal
to any
credit or repayment from the relevant tax authority which it reasonably
determines relates to the VAT chargeable on that
supply.
|
|
(c)
|
Where
a
Finance Document requires any Party to reimburse a Finance Party
for any
costs or expenses, that Party shall also at the same time pay and
indemnify the Finance Party against all VAT incurred by the Finance
Party
in respect of the costs or expenses to the extent that the Finance
Party
reasonably determines that neither it nor any other member of any
group of
which it is a member for VAT purposes is entitled to credit or repayment
from the relevant tax authority in respect of the
VAT.
|
31
|
15.
|
INCREASED
COSTS
|
|
15.1
|
Increased
Costs
|
|
(a)
|
Subject
to
clause 15.3 (Exceptions) the Company shall, within three Business
Days of
a demand by the Agent, pay for the account of a Finance Party the
amount
of any Increased Costs incurred by that Finance Party or any of its
Affiliates as a result of:
|
|
(i)
|
the
introduction of or any change in (or in the interpretation, administration
or application of) any law or regulation;
or
|
|
(ii)
|
compliance
with any law or regulation made after the date of this
agreement.
|
|
(b)
|
In
this
agreement “Increased
Costs”
means:
|
|
(i)
|
a
reduction
in the rate of return from the Facility or on a Finance Party’s (or its
Affiliates) overall capital;
|
|
(ii)
|
an
additional
or increased cost; or
|
|
(iii)
|
a
reduction
of any amount due and payable under any Finance
Document,
|
which
is incurred
or suffered by a Finance Party or any of its Affiliates to the extent that
it is
attributable to that Finance Party having entered into its Commitment or funding
or performing its obligations under any Finance Document.
|
15.2
|
Increased
Cost Claims
|
|
(a)
|
A
Finance
Party intending to make a claim pursuant to clause 15.1 (Increased
Costs)
shall notify the Agent of the event giving rise to the claim, following
which the Agent shall promptly notify the
Company.
|
|
(b)
|
Each
Finance
Party shall, as soon as practicable after a demand by the Agent,
provide a
certificate confirming the amount of its Increased
Costs.
|
|
15.3
|
Exceptions
|
|
(a)
|
Clause
15.1
(Increased Costs) does not apply to the extent any Increased Cost
is:
|
|
(i)
|
attributable
to a Tax Deduction required by law to be made by an
Obligor;
|
|
(ii)
|
compensated
for by the payment of the Mandatory
Cost;
|
|
(iii)
|
attributable
to the wilful breach by the relevant Finance Party or its Affiliates
of
any law or regulation; or
|
|
(iv)
|
attributable
to the implementation or application of or compliance with the
“International Convergence of Capital Measurement and Capital Standards,
a
Revised Framework” published by the Basel Committee on Banking Supervision
in June 2004 in the form existing on the date of this agreement
(“Basel
II”)
or any
other law or regulation which implements Basel II (whether such
implementation, application or compliance is by a government, regulator,
Finance Party or any of its
Affiliates).
|
|
(b)
|
In
this
clause 15.3, a reference to a “Tax
Deduction”
has the same
meaning given to the term in clause 14.1
(Definitions).
|
32
|
16.
|
OTHER
INDEMNITIES
|
|
16.1
|
Currency
Indemnity
|
|
(a)
|
If
any sum
due from an Obligor under the Finance Documents (a “Sum”),
or any
order, judgment or award given or made in relation to a Sum, has
to be
converted from the currency (the “First
Currency”)
in which
that Sum is payable into another currency (the “Second
Currency”)
for the
purpose of:
|
|
(i)
|
making
or
filing a claim or proof against that
Obligor;
|
|
(ii)
|
obtaining
or
enforcing an order, judgment or award in relation to any litigation
or
arbitration proceedings,
|
that
Obligor shall
as an independent obligation, within three Business Days of demand, indemnify
each Finance Party to whom that Sum is due against any cost, loss or liability
arising out of or as a result of the conversion including any discrepancy
between (A) the rate of exchange used to convert that Sum from the First
Currency into the Second Currency and (B) the rate or rates of exchange
available to that person at the time of its receipt of that Sum.
|
(b)
|
Each
Obligor
waives any right it may have in any jurisdiction to pay any amount
under
the Finance Documents in a currency or currency unit other than that
in
which it is expressed to be
payable.
|
|
16.2
|
Other
Indemnities
|
The
Company shall
(or shall procure that an Obligor will), within three Business Days of demand,
indemnify each Finance Party against any cost, loss or liability incurred by
that Finance Party as a result of:
|
(a)
|
the
occurrence of any Event of Default;
|
|
(b)
|
a
failure by
an Obligor to pay any amount due under a Finance Document on its
due date,
including without limitation, any cost, loss or liability arising
as a
result of clause 29 (Sharing Among the Finance
Parties);
|
|
(c)
|
funding,
or
making arrangements to fund, its participation in a Loan requested
by a
Borrower in a Utilisation Request but not made by reason of the operation
of any one or more of the provisions of this agreement (other than
by
reason of default or negligence by that Finance Party alone);
or
|
|
(d)
|
a
Loan (or
part of a Loan) not being prepaid in accordance with a notice of
prepayment given by a Borrower or the
Company.
|
|
16.3
|
Indemnity
to the Agent
|
The
Company shall
promptly indemnify the Agent against any cost, loss or liability incurred by
the
Agent (acting reasonably) as a result of:
|
(a)
|
investigating
any event which it reasonably believes is a Default;
or
|
|
(b)
|
acting
or
relying on any notice, request or instruction which it reasonably
believes
to be genuine, correct and appropriately
authorised,
|
except
to the
extent that the cost, loss or liability arises directly from the Agent’s
negligence or wilful misconduct.
33
|
17.
|
MITIGATION
BY THE LENDERS
|
|
17.1
|
Mitigation
|
Each
Finance Party
shall, in consultation with the Company, take all reasonable steps to mitigate
any circumstances which arise and which would result in any amount becoming
payable under or pursuant to, or cancelled pursuant to, any of clause 9.1
(Illegality), clause 14 (Tax Gross-Up and Indemnities), clause 15 (Increased
Costs) or schedule 4 (Mandatory Cost Formulae) including (but not limited to)
transferring its rights and obligations under the Finance Documents to another
Affiliate or Facility Office.
|
17.2
|
No
Limitation
|
Clause
17.1
(Mitigation) does not in any way limit the obligations of any Obligor under
the
Finance Documents.
|
17.3
|
Limitation
of liability
|
|
(a)
|
The
Company
shall indemnify each Finance Party for all costs and expenses reasonably
incurred by that Finance Party as a result of steps taken by it under
clause 17.1 (Mitigation).
|
|
(b)
|
A
Finance
Party is not obliged to take any steps under clause 17.1 (Mitigation)
if,
in the opinion of that Finance Party (acting reasonably), to do so
might
be prejudicial to it.
|
|
18.
|
COSTS
AND EXPENSES
|
|
18.1
|
Transaction
Expenses
|
The
Company shall
promptly on demand pay the Agent and the Arrangers the amount of all costs
and
expenses (including legal fees) reasonably incurred by any of them in connection
with the negotiation, preparation, printing, execution and primary syndication
of:
|
(a)
|
this
agreement and any other documents referred to in this agreement;
and
|
|
(b)
|
any
other
Finance Documents executed after the Signing
Date.
|
|
18.2
|
Enforcement
Costs
|
The
Company shall,
within three Business Days of demand, pay to each Finance Party the amount
of
all costs and expenses (including legal fees) incurred by that Finance Party
in
connection with the enforcement of, or the preservation of any rights under,
any
Finance Document.
|
19.
|
GUARANTEE
AND INDEMNITY
|
|
19.1
|
Guarantee
and Indemnity
|
Each
Guarantor
irrevocably and unconditionally jointly and severally:
|
(a)
|
guarantees
to
each Finance Party punctual performance by each Borrower of all that
Borrower’s 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, that Guarantor
shall immediately on demand pay that amount as if it was the principal
obligor; and
|
34
|
(c)
|
indemnifies
each Finance Party immediately on demand against any cost, loss or
liability suffered by that Finance Party if any obligation guaranteed
by
it is or becomes unenforceable, invalid or illegal. The amount of
the
cost, loss or liability shall be equal to the amount which that Finance
Party would otherwise have been entitled to
recover.
|
|
19.2
|
Continuing
Guarantee
|
This
guarantee is a
continuing guarantee and will extend to the ultimate balance of sums payable
by
any Obligor under the Finance Documents, regardless of any intermediate payment
or discharge in whole or in part.
|
19.3
|
Reinstatement
|
If
any payment by
an Obligor or any discharge given by a Finance Party (whether in respect of
the
obligations of any Obligor or any security for those obligations or otherwise)
is avoided or reduced as a result of insolvency or any similar
event:
|
(a)
|
the
liability
of each Obligor shall continue as if the payment, discharge, avoidance
or
reduction had not occurred; and
|
|
(b)
|
each
Finance
Party shall be entitled to recover the value or amount of that security
or
payment from each Obligor, as if the payment, discharge, avoidance
or
reduction had not occurred.
|
|
19.4
|
Waiver
of Defences
|
The
obligations of
each Guarantor under this clause 19 will not be affected by an act, omission,
matter or thing which, but for this clause, would reduce, release or prejudice
any of its obligations under this clause 19 (without limitation and whether
or
not known to it or any Finance Party) including:
|
(a)
|
any
time,
waiver or consent granted to, or composition with, any Obligor or
other
person;
|
|
(b)
|
the
release
of any other Obligor or any other person under the terms of any
composition or arrangement with any creditor of any member of the
Group;
|
|
(c)
|
the
taking,
variation, compromise, exchange, renewal or release of, or refusal
or
neglect to perfect, take up or enforce, any rights against, or security
over assets of, any Obligor or other person or any non-presentation
or
non-observance of any formality or other requirement in respect of
any
instrument or any failure to realise the full value of any
security;
|
|
(d)
|
any
incapacity or lack of power, authority or legal personality of or
dissolution or change in the members or status of an Obligor or any
other
person;
|
|
(e)
|
any
amendment, novation, supplement, extension, restatement (however
fundamental and whether or not more onerous) or replacement of any
Finance
Document or any other document or security including without limitation
any change in the purpose of, any extension of or any increase in
any
facility or the addition of any new facility under any Finance Document
or
other document or security;
|
|
(f)
|
any
unenforceability, illegality or invalidity of any obligation of any
person
under any Finance Document or any other document or security;
or
|
|
(g)
|
any
insolvency or similar proceedings.
|
35
|
19.5
|
Immediate
Recourse
|
Each
Guarantor
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 that Guarantor
under this clause 19. This waiver applies irrespective of any law or any
provision of a Finance Document to the contrary.
|
19.6
|
Appropriations
|
Until
all amounts
which may be or become payable by the Obligors 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 no
Guarantor shall be entitled to the benefit of the same;
and
|
|
(b)
|
hold
in an
interest-bearing suspense account any moneys received from any Guarantor
or on account of any Guarantor’s liability under this clause
19.
|
|
19.7
|
Deferral
of Guarantors’ Rights
|
Until
all amounts
which may be or become payable by the Obligors under or in connection with
the
Finance Documents have been irrevocably paid in full and unless the Agent
otherwise directs, no Guarantor will exercise any rights which it may have
by
reason of performance by it of its obligations under the Finance
Documents:
|
(a)
|
to
be
indemnified by an Obligor;
|
|
(b)
|
to
claim any
contribution from any other guarantor of any Obligor’s obligations under
the Finance Documents; and/or
|
|
(c)
|
to
take the
benefit (in whole or in part and whether by way of subrogation or
otherwise) of any rights of the Finance Parties under the Finance
Documents or of any other guarantee or security taken pursuant to,
or in
connection with, the Finance Documents by any Finance
Party.
|
|
19.8
|
Release
of Guarantors’ Right of
Contribution
|
If
any Guarantor (a
“Retiring
Guarantor”)
ceases to be a
Guarantor in accordance with the terms of the Finance Documents for the purpose
of any sale or other disposal of that Retiring Guarantor then on the date such
Retiring Guarantor ceases to be a Guarantor:
|
(a)
|
that
Retiring
Guarantor is released by each other Guarantor from any liability
(whether
past, present or future and whether actual or contingent) to make
a
contribution to any other Guarantor arising by reason of the performance
by any other Guarantor of its obligations under the Finance Documents;
and
|
|
(b)
|
each
other
Guarantor waives any rights it may have by reason of the performance
of
its obligations under the Finance Documents to take the benefit (in
whole
or in part and whether by way of subrogation or otherwise) of any
rights
of the Finance Parties under any Finance Document or of any other
security
taken pursuant to, or in connection with, any Finance Document where
such
rights or security are granted by or in relation to the assets of
the
Retiring Guarantor.
|
36
|
19.9
|
Additional
Security
|
This
guarantee is
in addition to and is not in any way prejudiced by any other guarantee or
security now or subsequently held by any Finance Party.
|
20.
|
REPRESENTATIONS
|
Each
Obligor makes
the representations and warranties set out in this clause 20 to each Finance
Party on the date of this agreement (but in the case of an Obligor other than
the Company, only in respect of itself).
|
20.1
|
Status
|
|
(a)
|
It
is duly
incorporated and validly existing under the law of its jurisdiction
of
incorporation.
|
|
(b)
|
It
has the
power to own its assets and carry on its business as it is being
conducted.
|
|
20.2
|
Binding
Obligations
|
The
obligations
expressed to be assumed by it in each Finance Document are, subject to any
general principles of law limiting its obligations which are specifically
referred to in any legal opinion delivered pursuant to clause 4 (Conditions
of
Utilisation) or clause 25 (Changes to the Obligors), legal, valid, binding
and
enforceable obligations.
|
20.3
|
Non-Conflict
With Other Obligations
|
The
entry into and
performance by it of, and the transactions contemplated by, the Finance
Documents do not and will not conflict with:
|
(a)
|
any
law or
regulation applicable to it;
|
|
(b)
|
its
constitutional documents; or
|
|
(c)
|
any
agreement
or instrument binding upon it or any of its
assets.
|
|
20.4
|
Power
and Authority
|
It
has the power to
enter into, perform and deliver, and has taken all necessary action to authorise
its entry into, performance and delivery of, the Finance Documents to which
it
is a party and the transactions contemplated by those Finance
Documents.
|
20.5
|
Validity
|
All
Authorisations
required or desirable to enable it lawfully to enter into, exercise its rights
and comply with its obligations in the Finance Documents to which it is a party
have been obtained or effected and are in full force and effect.
|
20.6
|
No
Default
|
|
(a)
|
No
Event of
Default has occurred and is continuing which has not been
remedied.
|
|
(b)
|
No
Default
has occurred and is continuing which has not been
remedied.
|
37
|
20.7
|
Financial
Statements
|
|
(a)
|
The
most
recently published audited consolidated financial statements of the
Group
give (in conjunction with the notes thereto) a true and fair view
of the
financial condition of the Group as at the date as of which the same
were
prepared.
|
|
(b)
|
The
Original
Financial Statements were prepared in accordance with IFRS consistently
applied and give (in conjunction with the notes thereto) a true and
fair
view of the consolidated financial condition of the Group as at the
date
as of which they were prepared and the consolidated results of the
operations of the Group during the financial year then
ended.
|
|
(c)
|
There
has
been no material change in the business or consolidated financial
condition of the Group taken as a whole since 31 December 2005 which
could
reasonably be expected to have a Material Adverse
Effect.
|
|
(d)
|
As
at the
date on which the most recently published audited consolidated financial
statements of the Group were prepared no member of the Group had
any
material liabilities which were not disclosed thereby (or by the
notes
thereto) or provided for therein and which should at that date have
been
so disclosed or provided for.
|
|
(e)
|
The
financial
information supplied by it or on behalf of it by any other member
of the
Group to the Lenders relating to any member of the Group in connection
with this agreement is true and accurate in all material
respects.
|
|
20.8
|
Pari
Passu Ranking
|
Its
payment
obligations under the Finance Documents rank at least pari
passu
with the claims of
all its other unsecured and unsubordinated creditors, except for obligations
mandatorily preferred by law applying to companies generally.
|
20.9
|
No
Proceedings Pending or
Threatened
|
No
litigation,
arbitration or administrative proceedings of or before any court, arbitral
body
or agency which, if adversely determined, might reasonably be expected to have
a
Material Adverse Effect have (to the best of its knowledge and belief) been
started or threatened against it.
|
20.10
|
Security
|
Its execution
of the
Finance Documents and its exercise of its rights and performance of its
obligations thereunder will not result in the existence of, nor oblige any
member of the Restricted Group to create, any Security over all or any of its
present or future revenues or assets.
|
20.11
|
Repetition
|
The
Repeating
Representations are deemed to be made by each Obligor by reference to the facts
and circumstances then existing on:
|
(a)
|
the
date of
each Utilisation Request and the first day of each Interest Period;
and
|
|
(b)
|
in
the case
of an Additional Obligor, the day on which the company becomes (or
it is
proposed that the company becomes) an Additional
Obligor.
|
|
21.
|
INFORMATION
UNDERTAKINGS
|
The
undertakings in
this clause 21 remain in force from Signing Date for so long as any amount
is
outstanding under the Finance Documents or any Commitment is in
force.
38
|
21.1
|
Financial
Information
|
The
Company shall
supply to the Agent, or procure the supply of, in sufficient copies for all
the
Lenders:
|
(a)
|
as
soon as
the same become available, but in any event within 120 days after
the end
of each of its financial years:
|
|
(i)
|
its
audited
financial statements for that financial year;
and
|
|
(ii)
|
the
audited
financial statements of the Group for that financial year;
and
|
|
(b)
|
as
soon as
the same become available, but in any event within 60 days after
the end
of each half of each of its financial years the published interim
consolidated financial statements of the Group for that financial
half
year;
|
|
(c)
|
as
soon as
the same become available, but in any event within 120 days after
the end
of each of the relevant Obligor’s financial years, each Obligor’s
financial statements, audited if so prepared, for that financial
year;
and
|
|
(d)
|
together
with
the accounts specified in clauses 21.1(a) and 21.1(b), but only if
necessary, a certificate signed by two officers of the Company in
the form
of schedule 11 identifying the Material Subsidiaries on the basis
of those
accounts.
|
|
21.2
|
Requirements
as to Financial Statements
|
The
Company shall
procure that each set of financial statements delivered pursuant to clause
20.6
(Financial Statements) is prepared using IFRS or GAAP, as applicable, except
(in
the case of an Obligor incorporated outside the United Kingdom) where the
relevant Obligor is required to prepare its financial statements in accordance
with accounting principles generally accepted in a jurisdiction other than
the
United Kingdom in which case its financial statements will be prepared and
audited in accordance with the accounting principles of that jurisdiction
generally accepted and consistently applied (save for changes in accounting
principles disclosed in the relevant financial statements).
|
21.3
|
Information:
Miscellaneous
|
The
Company shall
supply to the Agent (in sufficient copies for all the Lenders, if the Agent
so
requests) all documents dispatched by the Company to its shareholders (or any
class of them) generally at the same time as they are dispatched.
|
21.4
|
Notification
of Default
|
|
(a)
|
Each
Obligor
shall notify the Agent of any Default promptly upon becoming aware
of its
occurrence (unless that Obligor is aware that a notification has
already
been provided by another Obligor).
|
|
(b)
|
Promptly
upon
a request by the Agent, the Company shall supply to the Agent notice
confirming that no Default is continuing (or if a Default is continuing,
specifying the Default).
|
|
21.5
|
Use
of Websites
|
|
(a)
|
The
Company
may satisfy its obligation under this agreement to deliver any information
in relation to those Lenders ( the “Website
Lenders”)
who accept
this method of communication by posting this information onto an
electronic website designated by the Company and the Agent (the
“Designated
Website”)
if:
|
39
|
(i)
|
the
Agent
expressly agrees (after consultation with each of the Lenders) that
it
will accept communication of the information by this
method;
|
|
(ii)
|
both
the
Company and the Agent are aware of the address of and any relevant
password specifications for the Designated Website;
and
|
|
(iii)
|
the
information is in a format previously agreed between the Company
and the
Agent.
|
If
any Lender (a
“Paper
Form
Lender”)
does not agree to
the delivery of information electronically then the Agent shall notify the
Company accordingly and the Company shall supply the information to the Agent
(in sufficient copies for each Paper Form Lender) in paper form. In any event
the Company shall supply the Agent with at least one copy in paper form of
any
information required to be provided by it.
|
(b)
|
The
Agent
shall supply each Website Lender with the address of and any relevant
password specifications for the Designated Website following designation
of that website by the Company and the
Agent.
|
|
(c)
|
The
Company
shall promptly upon becoming aware of its occurrence notify the Agent
if:
|
|
(i)
|
the
Designated Website cannot be accessed due to technical failure;
or
|
|
(ii)
|
the
password
specifications for the Designated Website
change.
|
If
the Company
notifies the Agent under clause 21.5(c)(i), all information to be provided
by
the Company under this agreement after the date of that notice shall be supplied
in paper form unless and until the Agent and each Website Lender is satisfied
that the circumstances giving rise to the notification are no longer
continuing.
|
(d)
|
Any
Website
Lender may request, through the Agent, one paper copy of any information
required to be provided under this agreement which is posted onto
the
Designated Website. The Company shall comply with any such request
within
ten Business Days.
|
|
21.6
|
“Know
Your Customer” Checks
|
|
(a)
|
If:
|
|
(i)
|
the
introduction of or any change in (or in the interpretation, administration
or application of) any law or regulation made after the date of this
agreement;
|
|
(ii)
|
any
change in
the status of an Obligor after the date of this agreement;
or
|
|
(iii)
|
a
proposed
assignment or transfer by a Lender of any of its rights and obligations
under this agreement to a party that is not a Lender prior to such
assignment or transfer,
|
obliges
the Agent
or any Lender (or, in the case of clause 21.6(a)(iii), any prospective new
Lender) to comply with “know your customer” or similar identification procedures
in circumstances where the necessary information is not already available to
it,
each Obligor shall promptly upon the request of the Agent or any Lender supply,
or procure the supply of, such documentation and other evidence as is reasonably
requested by the Agent (for itself or on behalf of any Lender) or any Lender
(for itself or, in the case of the event described in clause 21.6(a)(iii),
on
behalf of any prospective new Lender) in order for the Agent, such Lender or,
in
the case of the event described in clause
40
21.6(a)(iii),
any
prospective new Lender to carry out and be satisfied it has complied with all
necessary “know your customer” or other similar checks under all applicable laws
and regulations pursuant to the transactions contemplated in the Finance
Documents.
|
(b)
|
Each
Lender
shall promptly upon the request of the Agent supply, or procure the
supply
of, such documentation and other evidence as is reasonably requested
by
the Agent (for itself) in order for the Agent to carry out and be
satisfied it has complied with all necessary “know your customer” or other
similar checks under all applicable laws and regulations pursuant
to the
transactions contemplated in the Finance
Documents.
|
|
(c)
|
The
Company
shall, by not less than ten Business Days’ prior written notice to the
Agent, notify the Agent (which shall promptly notify the Lenders)
of its
intention to request that one of the Subsidiaries becomes an Additional
Obligor pursuant to clause 25 (Changes to the
Obligors).
|
|
(d)
|
Following
the
giving of any notice pursuant to clause 21.6(c), if the accession
of such
Additional Obligor obliges the Agent or any Lender to comply with
“know
your customer” or similar identification procedures in circumstances where
the necessary information is not already available to it, the Company
shall promptly upon the request of the Agent or any Lender supply,
or
procure the supply of, such documentation and other evidence as is
reasonably requested by the Agent (for itself or on behalf of any
Lender)
or any Lender (for itself or on behalf of any prospective new Lender)
in
order for the Agent or such Lender or any prospective new Lender
to carry
out and be satisfied it has complied with the results of all necessary
“know your customer” or other similar checks under all applicable laws and
regulations pursuant to the accession of such Subsidiary to this
agreement
as an Additional Obligor.
|
|
22.
|
GENERAL
UNDERTAKINGS
|
The
undertakings in
this clause 22 remain in force from the date of this agreement for so long
as
any amount is outstanding under the Finance Documents or any Commitment is
in
force.
|
22.1
|
Authorisations
|
Each
Obligor shall
promptly obtain, comply with and do all that is necessary to maintain in full
force and effect any Authorisation required under any law or regulation of
its
jurisdiction of incorporation to enable it to perform its obligations under
the
Finance Documents and to ensure the legality, validity, enforceability or
admissibility in evidence in its jurisdiction of incorporation of any Finance
Document.
|
22.2
|
Compliance
with Laws
|
Each
Obligor shall
comply in all respects with all laws to which it may be subject, if failure
so
to comply would materially impair its ability to perform its obligations under
the Finance Documents.
|
22.3
|
Negative
Pledge
|
|
(a)
|
Subject
to
clause 22.3(b), no Obligor shall (and the Company shall ensure that
no
other member of the Restricted Group will) create or permit to subsist
any
Security over any of its assets.
|
|
(b)
|
Clause
22.3(a) does not apply to:
|
41
|
(i)
|
any
Security
listed in schedule 8 (Existing
Security);
|
|
(ii)
|
any
netting
or set-off arrangement entered into by any member of the Restricted
Group
in the ordinary course of its banking arrangements for the purpose
of
netting debit and credit balances;
|
|
(iii)
|
a
lien or
right of set-off arising solely by operation of law or by agreement
and in
the ordinary course of business;
|
|
(iv)
|
for
a period
of six Months after the date of the relevant acquisition, any Security
over or affecting any asset acquired by a member of the Restricted
Group
after the date of this agreement
if:
|
|
(A)
|
the
Security
was not created in contemplation of the acquisition of that asset
by a
member of the Restricted Group; and
|
|
(B)
|
the
principal
amount secured has not been increased in contemplation of, or since
the
acquisition of that asset by a member of the Restricted
Group.
|
|
(v)
|
for
a period
of six Months after the date of the relevant acquisition, any Security
over or affecting any asset of any company which becomes a member
of the
Restricted Group after the date of this agreement, where the Security
is
created prior to the date on which that company becomes a member
of the
Restricted Group, if:
|
|
(A)
|
the
Security
was not created in contemplation of the acquisition of that company;
and
|
|
(B)
|
the
principal
amount secured has not increased in contemplation of or since the
acquisition of that company.
|
|
(vi)
|
any
Security
entered into pursuant to any Finance
Document;
|
|
(vii)
|
any
Security
granted over any real property of a member of the Restricted Group
at the
time of purchase thereof for any loan or other obligation raised
or
undertaken for the sole purpose of financing the purchase of that
real
property;
|
|
(viii)
|
any
retention
of title reserved by any seller of goods in the normal course of
business,
or any Security imposed, reserved or granted over goods supplied
by such
seller in respect of the unpaid price of goods supplied in the ordinary
course of business;
|
|
(ix)
|
any
Security
granted by any member of the Restricted Group which carries on a
broking
or similar business, in each case in the ordinary course of that
broking
or similar business over any asset deposited with either a bank in
connection with the clearance of traded securities, securities exchange
or
clearing system as security for the relevant company’s obligations to such
bank, landlord, securities exchange or clearing system (including
for the
avoidance of doubt, any repo or similar sale and purchase arrangements
entered into by any member of the Restricted
Group);
|
|
(x)
|
any
Security
which the Majority Lenders have at any time agreed in writing shall
be
permitted;
|
42
|
(xi)
|
any
Security
granted by any member of the Restricted Group in the ordinary course
of
business in respect of any assets deposited with a central bank or
other
regulatory body in compliance with the requirements of that central
bank
or regulatory body;
|
|
(xii)
|
a
Security
granted in respect of a Back to Back Loan over the cash or cash equivalent
deposits concerned;
|
|
(xiii)
|
any
Security
created in connection with a Securitisation of Securitisation Assets
where
the recourse of the creditor(s) of the securities issued pursuant
to that
Securitisation or any financial obligation created by any on-lending
of
the proceeds of any such Securitisation is principally limited
to;
|
|
(A)
|
those
Securitisation Assets; and
|
|
(B)
|
if
those
Securitisation Assets comprise all of the business of the relevant
entity,
the shareholding or other interest in that entity;
and
|
|
(xiv)
|
any
Security
securing indebtedness the principal amount of which (when aggregated
with
the principal amount of any other indebtedness which has the benefit
of
Security given by any member of the Group other than any permitted
under
clause 22.3(b)(i) to 22.3(b)(xiii)) does not exceed £100,000,000 (or its
equivalent in another currency or
currencies).
|
|
22.4
|
Upstream
Guarantees
|
|
(a)
|
The
Company
shall procure that no member of the Restricted Group (other than
a
Guarantor) will give any guarantee or undertake any similar liability
in
respect of any Financial Indebtedness of any
Borrower.
|
|
(b)
|
The
Company
shall not procure or agree that any member of the Group (other than
a
Guarantor) will give any guarantee or undertake any similar liability
in
respect of any Financial Indebtedness of any
Borrower.
|
|
23.
|
EVENTS
OF DEFAULT
|
Each
of the events
or circumstances set out in this clause 23 is an Event of Default.
|
23.1
|
Non-Payment
|
An
Obligor does not
pay on the due date any amount payable pursuant to a Finance Document at the
place and in the currency in which it is expressed to be payable
unless:
|
(a)
|
its
failure
to pay is caused by:
|
|
(i)
|
administrative
or technical error; or
|
|
(ii)
|
a
Disruption
Event; and
|
|
(b)
|
payment
is
made within five Business Days of its due
date.
|
|
23.2
|
Other
Obligations
|
|
(a)
|
An
Obligor
does not comply with any provision of the Finance Documents (other
than
those referred to in clause 23.1
(Non-Payment).
|
|
(b)
|
No
Event of
Default under clause 23.2(a) will occur if the failure to comply
is
capable of remedy and is remedied within 30 days of the Agent giving
notice to the Company.
|
43
|
23.3
|
Misrepresentation
|
Any
representation
or statement made or deemed to be made by an Obligor in the Finance Documents
or
any other document delivered by or on behalf of any Obligor under or in
connection with any Finance Document is or proves to have been incorrect or
misleading in any material respect when made or deemed to be made and, if
capable of remedy, is not remedied within 30 days of the Agent giving notice
to
the Company.
|
23.4
|
Cross
Default
|
Any
other Financial
Indebtedness of any Obligor or any Material Subsidiary:
|
(a)
|
are
not paid
when due nor within any applicable grace period in any agreement
or
instrument relating to such Financial Indebtedness;
or
|
|
(b)
|
becomes
due
and payable before its normal or agreed maturity through the occurrence
of
an event of default (howsoever
described),
|
and
such other
Financial Indebtedness when aggregated with any other Financial Indebtedness
of
any Obligor or Material Subsidiary which falls within the terms of clause
23.4(a) or (b), is in excess of £20,000,000 (or its equivalent in other
currencies) except that this clause 23.4 does not apply during the period of
180
days beginning on the date any company becomes a member of the Group to any
Financial Indebtedness of that company outstanding as at the date it becomes
a
member of the Group which, but for this proviso, would have caused an Event
of
Default under this clause 23.4 at that date.
|
23.5
|
Insolvency
|
Any
order(s) is or
are made or effective resolution(s) is or are passed for the liquidation,
administration, winding-up or dissolution of any Obligor or any Material
Subsidiary or for the reorganisation of any Obligor or any Material Subsidiary
except, in the case of any Material Subsidiary, for:
|
(a)
|
the
purpose
of and followed by an amalgamation and reconstruction the terms of
which
have first been approved by the Majority Lenders in writing such
approval
not to be unreasonably withheld or delayed;
or
|
|
(b)
|
a
voluntary
solvent liquidation, winding-up, dissolution or reorganisation in
connection with the transfer of the business, undertaking and assets
of
such Material Subsidiary to another member of the Group;
or
|
|
(c)
|
where
such
liquidation, administration, winding-up, dissolution or reorganisation
could not reasonably be expected to have a Material Adverse
Effect.
|
|
23.6
|
Insolvency
Proceedings
|
Any
Obligor or any
Material Subsidiary takes any corporate action or other steps are taken or
legal
proceedings are started for the appointment of a receiver, administrative
receiver, trustee or similar officer (other than an administrator) of it or
of
any or all of its revenues and assets (or any order(s) is or are made or
effective resolution(s) is or are passed for the appointment of an administrator
of it) which, in the case of any Material Subsidiary, could reasonably be
expected to have a Material Adverse Effect.
44
|
23.7
|
Creditors’
Process
|
Any
Obligor or any
Material Subsidiary is unable or admits in writing its inability to pay its
debts as they fall due or commences negotiations with a view to, or takes any
proceedings under any law for, a readjustment, rescheduling or deferment of
all
or any of its obligations (or proposes, makes or enters into a general
assignment, arrangement or composition with or for the benefit of its creditors)
which, in the case of any Material Subsidiary, could reasonably be expected
to
have a Material Adverse Effect.
|
23.8
|
Suspension
of Business
|
Save
as previously
approved in writing by the Majority Lenders:
|
(a)
|
the
Company
shall suspend or threaten to suspend all or a substantial part of
the
Restricted Group’s operations or ceases, or threatens to cease, to carry
on the business of the Restricted Group;
or
|
|
(b)
|
any
other
Obligor or any Material Subsidiary shall suspend or threaten to suspend
all or a substantial part of its operations or ceases, or threatens
to
cease, to carry on its business which, in the case of any such Material
Subsidiary could reasonably be expected to have a Material Adverse
Effect
and except, in the case of any such Material Subsidiary, for the
purpose
of and followed by an amalgamation, the terms of which have first
been
approved by the Majority Lenders in writing or in connection with
the
transfer of the business, undertaking and assets of such Material
Subsidiary to another member of the
Group.
|
|
23.9
|
Invalidity
of any Finance Document
|
Any
Finance
Document shall at any time for any reason cease to be in full force and effect
other than:
|
(a)
|
in
accordance
with its terms; or
|
|
(b)
|
by
agreement
with the Lenders.
|
|
23.10
|
Execution
or distress
|
Any
execution or
distress is levied against, or an encumbrancer takes possession of the whole
or
any part of, the property, undertaking or assets of any Obligor or any Material
Subsidiary and it is not satisfied, removed or discharged within seven days
and
which, in the case of any Material Subsidiary could reasonably be expected
to
have a Material Adverse Effect.
|
23.11
|
Acceleration
|
On
and at any time
after the occurrence of an Event of Default which is continuing the Agent may,
and shall if so directed by the Majority Lenders, by notice to the Company,
declare that an Event of Default has occurred and:
|
(a)
|
cancel
the
Total Commitments and/or Ancillary Commitments at which time they
shall
immediately be cancelled;
|
|
(b)
|
declare
that
all or part of the Loans, together with accrued interest, and all
other
amounts accrued or outstanding under the Finance Documents be immediately
due and payable, at which time they shall become immediately due
and
payable;
|
|
(c)
|
declare
that
all or part of the Loans be payable on demand, at which time they
shall
immediately become payable on demand by the Agent on the instructions
of
the Majority Lenders;
|
45
|
(d)
|
declare
all
or any part of the amounts (or cash cover in relation to those amounts)
outstanding under the Ancillary Facilities to be immediately due
and
payable, at which time they shall become immediately due and payable;
and/or
|
|
(e)
|
declare
that
all or any part of the amounts (or cash cover in relation to those
amounts) outstanding under the Ancillary Facilities be payable on
demand,
at which time they shall immediately become payable on demand by
the Agent
on the instructions of the Majority
Lenders.
|
|
23.12
|
Notice
|
The
Agent will, if
practicable to do so, notify the Company prior to issuing a notice under clause
23.11 (Acceleration) in respect of a default by any Obligor other than the
Company provided that the Agent shall not be liable to any Obligor if it fails
to give such notice and provided that any failure by the Agent to give such
notice shall not prejudice, in any way, the rights of each Finance Party under
the Finance Documents including, without limitation, the Agent’s right to
deliver a notice under clause 23.11 (Acceleration).
|
24.
|
CHANGES
TO THE LENDERS
|
|
24.1
|
Assignments
and Transfers by the
Lenders
|
Subject
to this
clause 24, a Lender (the “Existing
Lender”)
may:
|
(a)
|
assign
any of
its rights; or
|
|
(b)
|
transfer
by
novation any of its rights and
obligations,
|
to
another bank or
financial institution (the “New
Lender”).
|
24.2
|
Conditions
of Assignment or Transfer
|
|
(a)
|
The
consent
of the Company is required for an assignment or transfer by an Existing
Lender, unless the assignment or transfer is to another Lender or
an
Affiliate of a Lender or a Default is
continuing.
|
|
(b)
|
The
consent
of the Company to an assignment or transfer must not be unreasonably
withheld or delayed. The Company will be deemed to have given its
consent
14 days after the Existing Lender has requested it unless consent
is
expressly refused by the Company within that
time.
|
|
(c)
|
For
the
avoidance of doubt, the refusal of the Company to give consent to
an
assignment or transfer will be deemed reasonable for the purpose
of this
clause 24.2 if the proposed New Lender
is:
|
|
(i)
|
a
Hedge Fund;
or
|
|
(ii)
|
an
entity
which, in the opinion of the Company, has demonstrated in past
transactions that it is unlikely to be supportive of a lending
relationship with the Company or the Group or any of their
Affiliates.
|
|
(d)
|
When
seeking
to obtain the consent of the Company under this clause, the Existing
Lender must provide the Company
with:
|
|
(i)
|
the
full
legal name of the proposed New Lender; and
|
|
(ii)
|
a
copy of any
Confidentiality Undertaking required to be obtained in accordance
with
clause 24.7 (Disclosure of
Information).
|
46
|
(e)
|
An
assignment
of rights will only be effective
on:
|
|
(i)
|
receipt
by
the Agent of written confirmation from the New Lender (in form and
substance satisfactory to the Agent) that the New Lender will assume
the
same obligations to the other Finance Parties as it would have been
under
if it was an Original Lender;
|
|
(ii)
|
the
performance by the Agent of all necessary “know your customer” or other
similar checks under all applicable laws and regulations in relation
to
such assignment to a New Lender, the completion of which the Agent
shall
promptly notify to the Existing Lender and the New
Lender.
|
|
(f)
|
A
transfer
will only be effective if the procedure set out in clause 24.5 (Procedure
for Transfer) is complied with.
|
|
(g)
|
If:
|
|
(i)
|
a
Lender
assigns or transfers any of its rights or obligations under the Finance
Documents or changes its Facility Office;
and
|
|
(ii)
|
as
a result
of circumstances existing at the date the assignment, transfer or
change
occurs, an Obligor would be obliged to make a payment to the New
Lender or
Lender acting through its new Facility Office under clause 14 (Tax
Gross-Up and Indemnities) or clause 15 (Increased
Costs),
|
then
the New Lender
or Lender acting through its new Facility Office is only entitled to receive
payment under those clauses to the same extent as the Existing Lender or Lender
acting through its previous Facility Office would have been if the assignment,
transfer or change had not occurred.
|
(h)
|
In
the case
of a partial assignment, transfer or novation of rights and obligations
under clause 24.1 (Assignments and Transfers by the Lender), a minimum
amount of £5,000,000 (unless to an Affiliate or to a Lender or the Agent
agrees otherwise) must be assigned, transferred or
novated.
|
|
24.3
|
Assignment
or Transfer Fee
|
The
New Lender
shall, on the date upon which an assignment or transfer takes effect, pay to
the
Agent (for its own account) a fee of £1,250.
|
24.4
|
Limitation
of Responsibility of Existing
Lenders
|
|
(a)
|
Unless
expressly agreed to the contrary, an Existing Lender makes no
representation or warranty and assumes no responsibility to a New
Lender
for:
|
|
(i)
|
the
legality,
validity, effectiveness, adequacy or enforceability of the Finance
Documents or any other documents;
|
|
(ii)
|
the
financial
condition of any Obligor;
|
|
(iii)
|
the
performance and observance by any Obligor of its obligations under
the
Finance Documents or any other documents;
or
|
|
(iv)
|
the
accuracy
of any statements (whether written or oral) made in or in connection
with
any Finance Document or any other
document,
|
and
any
representations or warranties implied by law are excluded.
47
|
(b)
|
Each
New
Lender confirms to the Existing Lender and the other Finance Parties
that
it:
|
|
(i)
|
has
made (and
shall continue to make) 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
Lender 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 whilst any amount is or may be
outstanding under the Finance Documents or any Commitment is in
force.
|
|
(c)
|
Nothing
in
any Finance Document obliges an Existing Lender
to:
|
|
(i)
|
accept
a
re-transfer from a New Lender of any of the rights and obligations
assigned or transferred under this clause 24;
or
|
|
(ii)
|
support
any
losses directly or indirectly incurred by the New Lender by reason
of the
non-performance by any Obligor of its obligations under the Finance
Documents or otherwise.
|
|
24.5
|
Procedure
for Transfer
|
|
(a)
|
Subject
to
the conditions set out in clause 24.2 (Conditions of Assignment or
Transfer) a transfer is effected in accordance with clause 24.5(c)
when
the Agent executes an otherwise duly completed Transfer Certificate
delivered to it by the Existing Lender and the New Lender. The Agent
shall, subject to clause 24.5(b), as soon as reasonably practicable
after
receipt by it of a duly completed Transfer Certificate appearing
on its
face to comply with the terms of this agreement and delivered in
accordance with the terms of this agreement, execute that Transfer
Certificate.
|
|
(b)
|
The
Agent
shall only be obliged to execute a Transfer Certificate delivered
to it by
the Existing Lender and the New Lender once it is satisfied it has
complied with all necessary “know your customer” or other similar checks
under all applicable laws and regulations in relation to the transfer
to
such New Lender.
|
|
(c)
|
On
the
Transfer Date:
|
|
(i)
|
to
the extent
that in the Transfer Certificate the Existing Lender seeks to transfer
by
novation its rights and obligations under the Finance Documents each
of
the Obligors and the Existing Lender shall be released from further
obligations towards one another under the Finance Documents and their
respective rights against one another under the Finance Documents
shall be
cancelled (being the “Discharged
Rights and Obligations”);
|
|
(ii)
|
each
of the
Obligors and the New Lender shall assume obligations towards one
another
and/or acquire rights against one another which differ from the Discharged
Rights and Obligations only insofar as that Obligor and the New Lender
have assumed and/or acquired the same in place of that Obligor and
the
Existing Lender;
|
|
(iii)
|
the
Agent,
the Arrangers, the New Lender, any other Lenders and any relevant
Ancillary Lender shall acquire the same rights and assume the same
obligations between themselves as they would have acquired and assumed
had
the New Lender been an Original Lender with the rights and/or obligations
acquired or assumed by it as a result of the transfer and to that
extent
the Agent, the Arrangers and the Existing Lender shall each be
|
48
released
from further
obligations to each other under the Finance Documents; and
|
(iv)
|
the
New
Lender shall become a Party as a
“Lender”.
|
|
24.6
|
Copy
of Transfer Certificate to
Company
|
The
Agent shall, as
soon as reasonably practicable after it has executed a Transfer Certificate,
send to the Company a copy of that Transfer Certificate.
|
24.7
|
Disclosure
of Information
|
Any
Lender may
disclose to any of its Affiliates and any other person:
|
(a)
|
to
(or
through) whom that Lender assigns or transfers (or may potentially
assign
or transfer) all or any of its rights and obligations under this
agreement;
|
|
(b)
|
with
(or
through) whom that Lender enters into (or may potentially enter into)
any
sub-participation in relation to, or any other transaction under
which
payments are to be made by reference to, this agreement or any Obligor;
or
|
|
(c)
|
to
whom, and
to the extent that, information is required to be disclosed by any
applicable law or regulation,
|
any
information
about any Obligor, the Group and the Finance Documents as that Lender shall
consider appropriate, in relation to clause 24.7(a) and 24.7(b), the person
to
whom the information is to be given has entered into a Confidentiality
Undertaking.
|
25.
|
CHANGES
TO THE OBLIGORS
|
|
25.1
|
Assignments
and Transfer by Obligors
|
No
Obligor may
assign any of its rights or transfer any of its rights or obligations under
the
Finance Documents.
|
25.2
|
Additional
Borrowers
|
|
(a)
|
Subject
to
compliance with the provisions of clause 21.6 (c) and 21.6 (d) (“Know Your
Customer” Checks), the Company may request that any of its wholly owned
Subsidiaries which is a member of the Restricted Group becomes an
Additional Borrower. That Subsidiary shall become an Additional Borrower
if:
|
|
(i)
|
all
the
Lenders approve the addition of that Subsidiary or it is incorporated
in
England and Wales;
|
|
(ii)
|
the
Company
delivers to the Agent a duly completed and executed Accession
Letter;
|
|
(iii)
|
the
Company
confirms that no Default is continuing or would occur as a result
of that
Subsidiary becoming an Additional Borrower;
and
|
|
(iv)
|
the
Agent has
received all of the documents and other evidence listed in part 2
of
schedule 2 (Conditions Precedent) in relation to that Additional
Borrower,
each in form and substance satisfactory to the
Agent.
|
|
(b)
|
The
Agent
shall notify the Company and the Lenders promptly upon being satisfied
that it has received (in form and substance satisfactory to it) all
the
documents and other evidence listed in part 2 of schedule 2 (Conditions
Precedent).
|
49
|
25.3
|
Resignation
of a Borrower
|
|
(a)
|
The
Company
may request that a Borrower (other than the Company) ceases to be
a
Borrower by delivering to the Agent a Resignation
Letter.
|
|
(b)
|
The
Agent
shall accept a Resignation Letter and notify the Company and the
Lenders
of its acceptance if:
|
|
(i)
|
no
Default is
continuing or would result from the acceptance of the Resignation
Letter
(and the Company has confirmed this is the case);
and
|
|
(ii)
|
the
Borrower
is under no actual or contingent obligations as a Borrower under
any
Finance Documents,
|
whereupon
that
company shall cease to be a Borrower and shall have no further rights or
obligations under the Finance Documents.
|
25.4
|
Additional
Guarantors
|
|
(a)
|
Subject
to
compliance with the provisions of clause 21.6 (c) and 21.6 (d) (“Know Your
Customer” Checks), the Company may request that any of its Subsidiaries
become an Additional Guarantor. That Subsidiary shall become an Additional
Guarantor if:
|
|
(i)
|
the
Company
delivers to the Agent a duly completed and executed Accession Letter;
and
|
|
(ii)
|
the
Agent has
received all of the documents and other evidence listed in part 2
of
schedule 2 (Conditions Precedent) in relation to that Additional
Guarantor, each in form and substance satisfactory to the
Agent.
|
|
(b)
|
The
Agent
shall notify the Company and the Lenders promptly upon being satisfied
that it has received (in form and substance satisfactory to it) all
the
documents and other evidence listed in part 2 of schedule 2 (Conditions
Precedent).
|
|
25.5
|
Resignation
of a Guarantor
|
|
(a)
|
The
Company
may request that a Guarantor (other than the Company) ceases to be
a
Guarantor by delivering to the Agent a Resignation
Letter.
|
|
(b)
|
The
Agent
shall accept a Resignation Letter and notify the Company and the
Lenders
of its acceptance if:
|
|
(i)
|
no
Default is
continuing or would result from the acceptance of the Resignation
Letter
(and the Company has confirmed this is the case);
|
|
(ii)
|
no
payment is
due from the Guarantor under clause 19 (Guarantee and Indemnity);
and
|
|
(iii)
|
all
the
Lenders have consented to the Company’s
request.
|
|
25.6
|
Repetition
of Representations
|
Delivery
of an
Accession Letter constitutes confirmation by the relevant Subsidiary that the
Repeating Representations are true and correct in relation to it as at the
date
of delivery as if made by reference to the facts and circumstances then
existing.
50
|
26.
|
ROLE
OF THE AGENT AND THE ARRANGERS
|
|
26.1
|
Appointment
of the Agent
|
|
(a)
|
Each
other
Finance Party (other than the Agent) appoints the Agent to act as
its
agent under and in connection with the Finance
Documents.
|
|
(b)
|
Each
other
Finance Party irrevocably authorises the Agent to exercise the rights,
powers, authorities and discretions specifically given to the Agent
under
or in connection with the Finance Documents together with any other
incidental rights, powers, authorities and
discretions.
|
|
26.2
|
Duties
of the Agent
|
|
(a)
|
The
Agent
shall promptly forward to a Party the original or a copy of any document
which is delivered to the Agent for that Party by any other
Party.
|
|
(b)
|
Except
where
a Finance Document specifically provides otherwise, the Agent is
not
obliged to review or check the adequacy, accuracy or completeness
of any
document it forwards to another
Party.
|
|
(c)
|
If
the Agent
receives notice from a Party referring to this agreement, describing
a
Default and stating that the circumstance described is a Default,
it shall
promptly notify the Finance
Parties.
|
|
(d)
|
If
the Agent
is aware of the non-payment of any principal, interest, commitment
fee or
other fee payable to a Finance Party (other than the Agent or the
Arrangers) under this agreement it shall promptly notify the other
Finance
Parties.
|
|
(e)
|
The
Agent’s
duties under the Finance Documents are solely mechanical and
administrative in nature.
|
|
26.3
|
Role
of the Arranger
|
Except
as
specifically provided in the Finance Documents, an Arranger has no obligations
of any kind to any other Party under or in connection with any Finance
Document.
|
26.4
|
No
Fiduciary Duties
|
|
(a)
|
Nothing
in
this agreement constitutes the Agent or any Arranger as a trustee
or
fiduciary of any other person.
|
|
(b)
|
Neither
the
Agent nor any Arranger shall be bound to account to any Lender for
any sum
or the profit element of any sum received by it for its own
account.
|
|
26.5
|
Business
with the Group
|
The
Agent and any
Arranger may accept deposits from, lend money to and generally engage in any
kind of banking or other business with any member of the Group.
|
26.6
|
Rights
and Discretions of the
Agent
|
|
(a)
|
The
Agent may
rely on:
|
|
(i)
|
any
representation, notice or document believed by it to be genuine,
correct
and appropriately authorised; and
|
51
|
(ii)
|
any
statement
made by a director, authorised signatory or employee of any person
regarding any matters which may reasonably be assumed to be within
his
knowledge or within his power to
verify.
|
|
(b)
|
The
Agent may
assume (unless it has received notice to the contrary in its capacity
as
agent for the Lenders) that:
|
|
(i)
|
no
Default
has occurred (unless it has actual knowledge of a Default arising
under
clause 23.1 (Non-Payment));
|
|
(ii)
|
any
right,
power, authority or discretion vested in any Party or the Majority
Lenders
has not been exercised; and
|
|
(iii)
|
any
notice or
request made by the Company (other than a Utilisation Request) is
made on
behalf of and with the consent and knowledge of all the
Obligors.
|
|
(c)
|
The
Agent may
engage, pay for and rely on the advice or services of any lawyers,
accountants, surveyors or other
experts.
|
|
(d)
|
The
Agent may
act in relation to the Finance Documents through its personnel and
agents.
|
|
(e)
|
The
Agent may
disclose to any other Party any information it reasonably believes
it has
received as agent under this
agreement.
|
|
(f)
|
Notwithstanding
any other provision of any Finance Document to the contrary, neither
the
Agent nor any Arranger is obliged to do or omit to do anything if
it would
or might in its reasonable opinion constitute a breach of any law
or
regulation or a breach of a fiduciary duty or duty of
confidentiality.
|
|
26.7
|
Majority
Lenders’ Instructions
|
|
(a)
|
Unless
a
contrary indication appears in a Finance Document, the Agent
shall:
|
|
(i)
|
exercise
any
right, power, authority or discretion vested in it as Agent in accordance
with any instructions given to it by the Majority Lenders (or, if
so
instructed by the Majority Lenders, refrain from exercising any right,
power, authority or discretion vested in it as Agent);
and
|
|
(ii)
|
not
be liable
for any act (or omission) if it acts (or refrains from taking any
action)
in accordance with an instruction of the Majority
Lenders.
|
|
(b)
|
Unless
a
contrary indication appears in a Finance Document, any instructions
given
by the Majority Lenders will be binding on all the Finance
Parties.
|
|
(c)
|
The
Agent may
refrain from acting in accordance with the instructions of the Majority
Lenders (or, if appropriate, the Lenders) until it has received such
security as it may require for any cost, loss or liability (together
with
any associated VAT) which it may incur in complying with the
instructions.
|
|
(d)
|
In
the
absence of instructions from the Majority Lenders, (or, if appropriate,
the Lenders) the Agent may act (or refrain from taking action) as
it
considers to be in the best interest of the
Lenders.
|
|
(e)
|
The
Agent is
not authorised to act on behalf of a Lender (without first obtaining
that
Lender’s consent) in any legal or arbitration proceedings relating to any
Finance Document.
|
52
|
26.8
|
Responsibility
for Documentation
|
Neither
the Agent
nor any Arranger:
|
(a)
|
is
responsible for the adequacy, accuracy and/or completeness of any
information (whether oral or written) supplied by the Agent, an Arranger,
an Obligor or any other person given in or in connection with any
Finance
Document; or
|
|
(b)
|
is
responsible for the legality, validity, effectiveness, adequacy or
enforceability of any Finance Document or any other agreement, arrangement
or document entered into, made or executed in anticipation of or
in
connection with any Finance
Document.
|
|
26.9
|
Exclusion
of Liability
|
|
(a)
|
Without
limiting clause 26.9(b), (and without prejudice to the provisions
of
clause 29.10(e) (Disruption to Payment Systems etc.), the Agent will
not
be liable (including, without limitation, for negligence or any other
category of liability whatsoever) for any action taken by it under
or in
connection with any Finance Document, unless directly caused by its
gross
negligence or wilful misconduct.
|
|
(b)
|
No
Party
(other than the Agent) may take any proceedings against any officer,
employee or agent of the Agent in respect of any claim it might have
against the Agent or in respect of any act or omission of any kind
by that
officer, employee or agent in relation to any Finance Document and
any
officer, employee or agent of the Agent may rely on this clause subject
to
clause 1.3 (Third Party Rights) and the provisions of the Third Parties
Act.
|
|
(c)
|
The
Agent
will not be liable for any delay (or any related consequences) in
crediting an account with an amount required under the Finance Documents
to be paid by the Agent if the Agent has taken all necessary steps
as soon
as reasonably practicable to comply with the regulations or operating
procedures of any recognised clearing or settlement system used by
the
Agent for that purpose.
|
|
(d)
|
Nothing
in
this agreement shall oblige the Agent or an Arranger to carry out
any
“know your customer” or other checks in relation to any person on behalf
of any Lender and each Lender confirms to the Agent and the Arrangers
that
it is solely responsible for any such checks it is required to carry
out
and that it may not rely on any statement in relation to such checks
made
by the Agent or the Arrangers.
|
|
26.10
|
Lenders’
Indemnity to the Agent
|
Each
Lender shall
(in proportion to its share of the Total Commitments or, if the Total
Commitments are then zero, to its share of the Total Commitments immediately
prior to their reduction to zero) indemnify the Agent, within three Business
Days of demand, against any cost, loss or liability (including, without
limitation, for negligence or any other category of liability whatsoever)
incurred by the Agent (otherwise than by reason of the Agent’s gross negligence
or wilful misconduct) (or, in the case of any cost, loss or liability pursuant
to clause 29.10 (Disruption to Payment Systems etc.) notwithstanding the Agent’s
negligence, gross negligence or any other category of liability whatsoever
but
not including any claim based on the fraud of the Agent) in acting as Agent
under the Finance Documents (unless the Agent has been reimbursed by an Obligor
pursuant to a Finance Document).
53
|
26.11
|
Resignation
of the Agent
|
|
(a)
|
The
Agent may
resign and appoint one of its Affiliates acting through an office
in the
United Kingdom as successor by giving notice to the other Finance
Parties
and the Company.
|
|
(b)
|
Alternatively
the Agent may resign by giving notice to the other Finance Parties
and the
Company, in which case the Majority Lenders (after consultation with
the
Company) may appoint a successor
Agent.
|
|
(c)
|
If
the
Majority Lenders have not appointed a successor Agent in accordance
with
clause 26.11(b) within 30 days after notice of resignation was given,
the
Agent (after consultation with the Company) may appoint a successor
Agent
(acting through an office in the United
Kingdom).
|
|
(d)
|
The
retiring
Agent shall, at its own cost, make available to the successor Agent
such
documents and records and provide such assistance as the successor
Agent
may reasonably request for the purposes of performing its functions
as
Agent under the Finance Documents.
|
|
(e)
|
The
Agent’s
resignation notice shall only take effect upon the appointment of
a
successor.
|
|
(f)
|
Upon
the
appointment of a successor, the retiring Agent shall be discharged
from
any further obligation in respect of the Finance Documents but shall
remain entitled to the benefit of this clause 26. Its successor and
each
of the other Parties shall have the same rights and obligations amongst
themselves as they would have had if such successor had been an original
Party.
|
|
(g)
|
After
consultation with the Company, the Majority Lenders may, by notice
to the
Agent, require it to resign in accordance with clause 26.11(b). In
this
event, the Agent shall resign in accordance with clause
26.11(b).
|
|
26.12
|
Confidentiality
|
|
(a)
|
In
acting as
agent for the Finance Parties, the Agent shall be regarded as acting
through its agency division which shall be treated as a separate
entity
from any other of its divisions or
departments.
|
|
(b)
|
If
information is received by another division or department of the
Agent, it
may be treated as confidential to that division or department and
the
Agent shall not be deemed to have notice of
it.
|
|
26.13
|
Relationship
with the Lenders
|
|
(a)
|
The
Agent may
treat each Lender as a Lender, entitled to payments under this agreement
and acting through its Facility Office unless it has received not
less
than five Business Days’ prior notice from that Lender to the contrary in
accordance with the terms of this
agreement.
|
|
(b)
|
Each
Lender
shall supply the Agent with any information required by the Agent
in order
to calculate the Mandatory Cost in accordance with schedule 4 (Mandatory
Cost Formulae).
|
54
|
26.14
|
Credit
Appraisal by the Lenders
|
Without
affecting
the responsibility of any Obligor for information supplied by it or on its
behalf in connection with any Finance Document, each Lender confirms to the
Agent and each Arranger that it has been, and will continue to be, solely
responsible for making its own independent appraisal and investigation of all
risks arising under or in connection with any Finance Document including but
not
limited to:
|
(a)
|
the
financial
condition, status and nature of each member of the
Group;
|
|
(b)
|
the
legality,
validity, effectiveness, adequacy or enforceability of any Finance
Document and any other agreement, arrangement or document entered
into,
made or executed in anticipation of, under or in connection with
any
Finance Document;
|
|
(c)
|
whether
that
Lender has recourse, and the nature and extent of that recourse,
against
any Party or any of its respective assets under or in connection
with any
Finance Document, the transactions contemplated by the Finance Documents
or any other agreement, arrangement or document entered into, made
or
executed in anticipation of, under or in connection with any Finance
Document; and
|
|
(d)
|
the
adequacy,
accuracy and/or completeness of any information provided by the Agent,
any
Party or by any other person under or in connection with any Finance
Document, the transactions contemplated by the Finance Documents
or any
other agreement, arrangement or document entered into, made or executed
in
anticipation of, under or in connection with any Finance
Document.
|
|
26.15
|
Reference
Banks
|
If
a Reference Bank
(or, if a Reference Bank is not a Lender, the Lender of which it is an
Affiliate) ceases to be a Lender, the Agent shall (in consultation with the
Company) appoint another Lender or an Affiliate of a Lender to replace that
Reference Bank.
|
26.16
|
Agent’s
Management Time
|
Any
amount payable
to the Agent under clause 16.3 (Indemnity to the Agent), clause 18 (Costs and
Expenses) and clause 26.10 (Lenders’ Indemnity to the Agent) shall include the
cost of utilising the Agent’s management time or other resources and will be
calculated on the basis of such reasonable daily or hourly rates as the Agent
may notify to the Company and the Lenders, and is in addition to any fee paid
or
payable to the Agent under clause 13 (Fees).
|
26.17
|
Deduction
from Amounts Payable by the
Agent
|
If
any Party owes
an amount to the Agent under the Finance Documents the Agent may, after giving
notice to that Party, deduct an amount not exceeding that amount from any
payment to that Party which the Agent would otherwise be obliged to make under
the Finance Documents and apply the amount deducted in or towards satisfaction
of the amount owed. For the purposes of the Finance Documents that Party shall
be regarded as having received any amount so deducted.
|
27.
|
CONDUCT
OF BUSINESS BY THE FINANCE
PARTIES
|
No
provision of
this agreement will:
|
(a)
|
interfere
with the right of any Finance Party to arrange its affairs (tax or
otherwise) in whatever manner it thinks
fit;
|
|
(b)
|
oblige
any
Finance Party to investigate or claim any credit, relief, remission
or
repayment available to it or the extent, order and manner of any
claim;
or
|
55
|
(c)
|
oblige
any
Finance Party to disclose any information relating to its affairs
(tax or
otherwise) or any computations in respect of
Tax.
|
|
28.
|
SHARING
AMONG THE FINANCE PARTIES
|
|
28.1
|
Payments
to Finance Parties
|
If
a Finance Party
(a “Recovering
Finance Party”)
receives or
recovers any amount from an Obligor other than in accordance with clause 29
(Payment Mechanics) and applies that amount to a payment due under the Finance
Documents then:
|
(a)
|
the
Recovering Finance Party shall, within three Business Days, notify
details
of the receipt or recovery, to the
Agent;
|
|
(b)
|
the
Agent
shall determine whether the receipt or recovery is in excess of the
amount
the Recovering Finance Party would have been paid had the receipt
or
recovery been received or made by the Agent and distributed in accordance
with clause 29 (Payment Mechanics), without taking account of any
Tax
which would be imposed on the Agent in relation to the receipt, recovery
or distribution; and
|
|
(c)
|
the
Recovering Finance Party shall, within three Business Days of demand
by
the Agent, pay to the Agent an amount (the “Sharing
Payment”)
equal to
such receipt or recovery less any amount which the Agent determines
may be
retained by the Recovering Finance Party as its share of any payment
to be
made, in accordance with clause 29.5 (Partial
Payments).
|
|
28.2
|
Redistribution
of Payments
|
The
Agent shall
treat the Sharing Payment as if it had been paid by the relevant Obligor and
distribute it between the Finance Parties (other than the Recovering Finance
Party) in accordance with clause 29.5 (Partial Payments).
|
28.3
|
Recovering
Finance Party’s Rights
|
|
(a)
|
On
a
distribution by the Agent under clause 28.2 (Redistribution of Payments),
the Recovering Finance Party will be subrogated to the rights of
the
Finance Parties which have shared in the
redistribution.
|
|
(b)
|
If
and to the
extent that the Recovering Finance Party is not able to rely on its
rights
under clause 28.3(a), the relevant Obligor shall be liable to the
Recovering Finance Party for a debt equal to the Sharing Payment
which is
immediately due and payable.
|
|
28.4
|
Reversal
of Redistribution
|
If
any part of the
Sharing Payment received or recovered by a Recovering Finance Party becomes
repayable and is repaid by that Recovering Finance Party, then:
|
(a)
|
each
Finance
Party which has received a share of the relevant Sharing Payment
pursuant
to clause 28.2 (Redistribution of Payments) shall, upon request of
the
Agent, pay to the Agent for account of that Recovering Finance Party
an
amount equal to the appropriate part of its share of the Sharing
Payment
(together with an amount as is necessary to reimburse that Recovering
Finance Party for its proportion of any interest on the Sharing Payment
which that Recovering Finance Party is required to pay);
and
|
|
(b)
|
that
Recovering Finance Party’s rights of subrogation in respect of any
reimbursement shall be cancelled and the relevant Obligor will be
liable
to the reimbursing Lender for the amount so
reimbursed.
|
56
|
28.5
|
Exceptions
|
|
(a)
|
This
clause
28 shall not apply to the extent that the Recovering Finance Party
would
not, after making any payment pursuant to this clause, have a valid
and
enforceable claim against the relevant
Obligor.
|
|
(b)
|
A
Recovering
Finance Party is not obliged to share with any other Lender any amount
which the Recovering Finance Party has received or recovered as a
result
of taking legal or arbitration proceedings,
if:
|
|
(i)
|
it
notified
that other Finance Party of the legal or arbitration proceedings;
and
|
|
(ii)
|
that
other
Finance Party had an opportunity to participate in those legal or
arbitration proceedings but did not do so as soon as reasonably
practicable having received notice and did not take separate legal
or
arbitration proceedings.
|
|
29.
|
PAYMENT
MECHANICS
|
|
29.1
|
Payments
to the Agent
|
|
(a)
|
On
each date
on which an Obligor or a Lender is required to make a payment under
a
Finance Document, that Obligor or Lender shall make the same available
to
the Agent (unless a contrary indication appears in a Finance Document)
for
value on the due date at the time and in such funds specified by
the Agent
as being customary at the time for settlement of transactions in
the
relevant currency in the place of
payment.
|
|
(b)
|
Payment
shall
be made to such account in the principal financial centre of the
country
of that currency (or, in relation to euro, in a principal financial
centre
in a Participating Member State or London) with such bank as the
Agent
specifies.
|
|
29.2
|
Distributions
by the Agent
|
Each
payment
received by the Agent under the Finance Documents for another Party shall,
subject to clause 29.3 (Distributions to an Obligor) and clause 29.4 (Clawback)
be made available by the Agent as soon as practicable after receipt to the
Party
entitled to receive payment in accordance with this agreement (in the case
of a
Lender, for the account of its Facility Office), to such account as that Party
may notify to the Agent by not less than five Business Days’ notice with a bank
in the principal financial centre of the country of that currency (or, in
relation to euro, in the principal financial centre of a Participating Member
State or London).
|
29.3
|
Distributions
to an Obligor
|
The
Agent may (with
the consent of the Obligor or in accordance with clause 30 (Set-Off)) apply
any
amount received by it for that Obligor in or towards payment (on the date and
in
the currency and funds of receipt) of any amount due from that Obligor under
the
Finance Documents or in or towards purchase of any amount of any currency to
be
so applied.
|
29.4
|
Clawback
|
|
(a)
|
Where
a sum
is to be paid to the Agent under the Finance Documents for another
Party,
the Agent is not obliged to pay that sum to that other Party (or
to enter
into or perform any related exchange contract) until it has been
able to
establish to its satisfaction that it has actually received that
sum.
|
57
|
(b)
|
If
the Agent
pays an amount to another Party and it proves to be the case that
the
Agent had not actually received that amount, then the Party to whom
that
amount (or the proceeds of any related exchange contract) was paid
by the
Agent shall on demand refund the same to the Agent together with
interest
on that amount from the date of payment to the date of receipt by
the
Agent, calculated by the Agent to reflect its cost of
funds.
|
|
29.5
|
Partial
Payments
|
|
(a)
|
If
the Agent
receives a payment that is insufficient to discharge all the amounts
then
due and payable by an Obligor under the Finance Documents, the Agent
shall
apply that payment towards the obligations of that Obligor under
the
Finance Documents in the following
order:
|
|
(i)
|
first,
in or
towards payment pro rata of any unpaid fees, costs and expenses of
the
Agent under the Finance Documents;
|
|
(ii)
|
secondly,
in or
towards payment pro rata of any accrued interest, fee or commission
due
but unpaid under this agreement;
|
|
(iii)
|
thirdly,
in or
towards payment pro rata of any principal due but unpaid under this
agreement; and
|
|
(iv)
|
fourthly,
in or
towards payment pro rata of any other sum due but unpaid under the
Finance
Documents.
|
|
(b)
|
The
Agent
shall, if so directed by the Lenders, vary the order set out in clause
29.5(a)(ii) to (iv).
|
|
(c)
|
Clauses
29.5(a) and (b) will override any appropriation made by an
Obligor.
|
|
29.6
|
No
Set-Off by Obligors
|
All
payments to be
made by an Obligor under the Finance Documents shall be calculated and be made
without (and free and clear of any deduction for) set-off or
counterclaim.
|
29.7
|
Business
Days
|
|
(a)
|
Any
payment
which is due to be made on a day that is not a Business Day shall
be made
on the next Business Day in the same calendar month (if there is
one) or
the preceding Business Day (if there is
not).
|
|
(b)
|
During
any
extension of the due date for payment of any principal or Unpaid
Sum under
this agreement interest is payable on the principal or Unpaid Sum
at the
rate payable on the original due
date.
|
|
29.8
|
Currency
of Account
|
|
(a)
|
Subject
to
clause 29.8(b) to (e), the Base Currency is the currency of account
and
payment for any sum due from an Obligor under any Finance
Document.
|
|
(b)
|
A
repayment
of a Loan or Unpaid Sum or a part of a Loan or Unpaid Sum shall be
made in
the currency in which that Loan or Unpaid Sum is denominated on its
due
date.
|
|
(c)
|
Each
payment
of interest shall be made in the currency in which the sum in respect
of
which the interest is payable was denominated when that interest
accrued.
|
58
|
(d)
|
Each
payment
in respect of costs, expenses or Taxes shall be made in the currency
in
which the costs, expenses or Taxes are
incurred.
|
|
(e)
|
Any
amount
expressed to be payable in a currency other than the Base Currency
shall
be paid in that other currency.
|
|
29.9
|
Change
of Currency
|
|
(a)
|
Unless
otherwise prohibited by law, if more than one currency or currency
unit
are at the same time recognised by the central bank of any country
as the
lawful currency of that country,
then:
|
|
(i)
|
any
reference
in the Finance Documents to, and any obligations arising under the
Finance
Documents in, the currency of that country shall be translated into,
or
paid in, the currency or currency unit of that country designated
by the
Agent (after consultation with the Company);
and
|
|
(ii)
|
any
translation from one currency or currency unit to another shall be
at the
official rate of exchange recognised by the central bank for the
conversion of that currency or currency unit into the other, rounded
up or
down by the Agent (acting
reasonably).
|
|
(b)
|
If
a change
in any currency of a country occurs, this agreement will, to the
extent
the Agent (acting reasonably and after consultation with the Company)
specifies to be necessary, be amended to comply with any generally
accepted conventions and market practice in the Relevant Interbank
Market
and otherwise to reflect the change in
currency.
|
|
29.10
|
Disruption
to Payment System etc.
|
If
either the Agent
determines (in its discretion) that a Disruption Event has occurred or the
Agent
is notified by the Company that a Disruption Event has occurred:
|
(a)
|
the
Agent
may, and shall if requested to do so by the Company, consult with
the
Company with a view to agreeing with the Company such changes to
the
operation or administration of the Facility as the Agent may deem
necessary in the circumstances;
|
|
(b)
|
the
Agent
shall not be obliged to consult with the Company in relation to any
changes mentioned in paragraph (a) if, in its opinion, it is not
practicable to do so in the circumstances and, in any event, shall
have no
obligation to agree to such
changes;
|
|
(c)
|
the
Agent may
consult with the Finance Parties in relation to any changes mentioned
in
paragraph (a) but shall not be obliged to do so if, in its opinion,
it is
not practicable to do so in the
circumstances;
|
|
(d)
|
any
such
changes agreed upon by the Agent and the Company shall (whether or
not it
is finally determined that a Disruption Event has occurred) be binding
upon the Parties as an amendment to (or, as the case may be, waiver
of)
the terms of the Finance Documents notwithstanding the provisions
of
clause 35 (Amendments and Waivers);
|
|
(e)
|
the
Agent
shall not be liable for any damages, costs of losses whatsoever
(including, without limitation for negligence, gross negligence or
any
other category of liability whatsoever but not including any claim
based
on the fraud of the Agent) arising as a result of its taking, or
failing
to take, any actions pursuant to or in connection with this clause
29.10;
and
|
59
|
(f)
|
the
Agent
shall notify the Finance Parties of all changes agreed pursuant to
paragraph (d) above.
|
|
30.
|
SET-OFF
|
After
a Default
which is continuing, a Finance Party may set off any matured obligation due
from
an Obligor under the Finance Documents (to the extent beneficially owned by
that
Finance Party) against any matured obligation 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.
|
31.
|
NOTICES,
EMAIL OR ANY ELECTRONIC COMMUNICATION APPROVED BY THE
AGENT
|
|
31.1
|
Communications
in Writing
|
Any
communication
to be made under or in connection with the Finance Documents shall be made
in
writing and, unless otherwise stated, may be made by fax, letter, email or
any
other electronic communication approved by the Agent.
|
31.2
|
Addresses
|
|
(a)
|
The
address
and fax number (and the department or officer, if any, for whose
attention
the communication is to be made) of each Party for any communication
or
document to be made or delivered under or in connection with the
Finance
Documents is:
|
|
(i)
|
in
the case
of the Company, that identified with its name
below;
|
|
(ii)
|
in
the case
of each Lender, that notified in writing to the Agent on or prior
to the
date on which it becomes a Party;
and
|
|
(iii)
|
in
the case
of the Agent, that identified with its name
below,
|
or
any substitute
address or fax number or department or officer as the Party may notify to the
Agent (or the Agent may notify to the other Parties, if a change is made by
the
Agent) by not less than five Business Days’ notice.
|
(b)
|
The
address
and fax number of the Agent are:
|
HSBC
Bank
plc
Xxxxx
00
0
Xxxxxx
Xxxxxx
Xxxxxx
X00
0XX
Attention: Corporate
Trust and
Loan Agency
Facsimile: x00
00 0000
0000
60
|
(c)
|
The
address
and fax number of the Company:
|
Reuters
Group
PLC
Xxx
Xxxxxxx
Xxxxxxxx
Xxxxx
Xxxxxxxxx
Xxxxxx
Xxxxx
Xxxxxx
X00
0XX
Attention: Global
Head of Tax
and Treasury
Facsimile: x00
00 0000
0000
Email: xxxxx.xxxxx@xxxxxxx.xxx
|
31.3
|
Delivery
|
|
(a)
|
Any
communication or document made or delivered by one person to another
under
or in connection with the Finance Documents will only be
effective:
|
|
(i)
|
if
by way of
fax, when received in legible form;
|
|
(ii)
|
if
by way of
letter, when it has been left at the relevant address or five Business
Days after being deposited in the post postage prepaid in an envelope
addressed to it at that address; or
|
|
(iii)
|
if
by way of
email or any other electronic communication, when
received,
|
and,
if a
particular department or officer is specified as part of its address details
provided under clause 31.2 (Addresses), if addressed to that department or
officer.
|
(b)
|
Any
communication or document to be made or delivered to the Agent will
be
effective only when actually received by the Agent and then only
if it is
expressly marked for the attention of the department or officer identified
with the Agent’s signature below (or any substitute department or officer
as the Agent shall specify for this
purpose).
|
|
(c)
|
All
notices
from or to an Obligor shall be sent through the
Agent.
|
|
(d)
|
Any
communication or document made or delivered to the Company in accordance
with this clause will be deemed to have been made or delivered to
each of
the Obligors.
|
|
31.4
|
Notification
of Address and Fax Number
|
Promptly
upon
receipt of notification of an address or fax number or change of address or
fax
number pursuant to clause 31.2 (Addresses) or changing its own address or fax
number, the Agent shall notify the other Parties.
|
31.5
|
Electronic
Communication
|
|
(a)
|
Any
communication to be made between the Parties under or in connection
with
the Finance Documents may be made by electronic mail or other electronic
means, if the Agent and the relevant
Party:
|
|
(i)
|
agree
that,
unless and until notified to the contrary, this is to be an accepted
form
of communication (and each Party agrees that electronic mail is an
accepted form unless a Party notifies the Agent otherwise (and immediately
upon such notification the Agent will notify all
Parties));
|
61
|
(ii)
|
notify
each
other in writing of any information required to enable the sending
and
receipt of information by that means;
and
|
|
(iii)
|
notify
each
other of any change to any such information supplied by
them.
|
|
(b)
|
Any
electronic communication will be effective only when actually received
in
readable form and in the case of any electronic communication made
by a
Lender to the Agent only if it is addressed in such a manner as the
Agent
shall specify for this purpose.
|
|
31.6
|
English
Language
|
|
(a)
|
Any
notice
given under or in connection with any Finance Document must be in
English.
|
|
(b)
|
All
other
documents provided under or in connection with any Finance Document
must
be:
|
|
(i)
|
in
English;
or
|
|
(ii)
|
if
not in
English, and if so required by the Agent, accompanied by a certified
English translation and, in this case, the English translation will
prevail unless the document is a constitutional, statutory or other
official document.
|
|
32.
|
CALCULATIONS
AND CERTIFICATES
|
|
32.1
|
Accounts
|
In
any litigation
or arbitration proceedings arising out of or in connection with a Finance
Document, the entries made in the accounts maintained by a Finance Party are
prima
facie
evidence of the
matters to which they relate.
|
32.2
|
Certificates
and Determinations
|
Any
certification
or determination by a Finance Party of a rate or amount under any Finance
Document is, in the absence of manifest error, conclusive evidence of the
matters to which it relates.
|
32.3
|
Day
Count Convention
|
Any
interest,
Mandatory Cost, commission or fee accruing under a Finance Document will accrue
from day to day and is calculated on the basis of the actual number of days
elapsed and a year of 360 days or, in any case where the practice in the
Relevant Interbank Market differs, in accordance with that market
practice.
|
33.
|
PARTIAL
INVALIDITY
|
If,
at any time,
any provision of the Finance Documents is or becomes illegal, invalid or
unenforceable in any respect under any law of any jurisdiction, neither the
legality, validity or enforceability of the remaining provisions nor the
legality, validity or enforceability of such provision under the law of any
other jurisdiction will in any way be affected or impaired.
62
|
34.
|
REMEDIES
AND WAIVERS
|
No
failure to
exercise, nor any delay in exercising, on the part of any Finance Party, any
right or remedy under the Finance Documents shall operate as a waiver, nor
shall
any single or partial exercise of any right or remedy prevent any further or
other exercise or the exercise of any other right or remedy. The rights and
remedies provided in this agreement are cumulative and not exclusive of any
rights or remedies provided by law.
|
35.
|
AMENDMENTS
AND WAIVERS
|
|
35.1
|
Required
Consents
|
|
(a)
|
Subject
to
clause 35.2 (Exceptions) any term of the Finance Documents may be
amended
or waived only with the consent of the Company and the Majority Lenders
and any such amendment or waiver will be binding on all
Parties.
|
|
(b)
|
The
Agent may
effect, on behalf of any Finance Party, any amendment or waiver permitted
by this clause.
|
|
(c)
|
The
Agent
shall promptly notify the other Parties of any amendment or waiver
effected under this clause 35.
|
|
35.2
|
Exceptions
|
|
(a)
|
An
amendment
or waiver that has the effect of changing or which relates
to:
|
|
(i)
|
the
definition of “Majority Lenders” in clause 1.1
(Definitions);
|
|
(ii)
|
an
extension
to the date of payment of any amount under the Finance
Documents;
|
|
(iii)
|
a
reduction
in the Margin or a reduction in the amount of any payment of principal,
interest, fees or commission
payable;
|
|
(iv)
|
an
increase
in or an extension of any
Commitment;
|
|
(v)
|
a
change to
the Borrowers or Guarantors other than in accordance with clause
25
(Changes to the Obligors);
|
|
(vi)
|
any
provision
which expressly requires the consent of all the
Lenders;
|
|
(vii)
|
clause
2.2
(Finance Parties’ Rights and Obligations), clause 24 (Changes to the
Lenders), clause 28 (Sharing Among the Finance Parties) or this clause
35,
|
shall
not be made
without the prior consent of all the Lenders.
|
(b)
|
An
amendment
or waiver which relates to the rights or obligations of the Agent
may not
be effected without the consent of the
Agent.
|
|
36.
|
COUNTERPARTS
|
Each
Finance
Document may be executed in any number of counterparts, and this has the same
effect as if the signatures on the counterparts were on a single copy of the
Finance Document.
|
37.
|
GOVERNING
LAW
|
This
agreement is
governed by English law.
63
|
38.
|
ENFORCEMENT
|
|
38.1
|
Jurisdiction
|
|
(a)
|
The
courts of
England have exclusive jurisdiction to settle any dispute arising
out of
or in connection with this agreement (including a dispute regarding
the
existence, validity or termination of this agreement) (a “Dispute”).
|
|
(b)
|
The
Parties
agree that the courts of England are the most appropriate and convenient
courts to settle Disputes and accordingly no Party will argue to
the
contrary.
|
|
(c)
|
This
clause
38.1 is for the benefit of the Finance Parties only. As a result,
no
Finance Party shall be prevented from taking proceedings relating
to a
Dispute in any other courts with jurisdiction. To the extent allowed
by
law, the Finance Parties may take concurrent proceedings in any number
of
jurisdictions.
|
|
38.2
|
Service
of Process
|
Without
prejudice
to any other mode of service allowed under any relevant law, each Obligor (other
than an Obligor incorporated in England and Wales):
|
(a)
|
irrevocably
appoints the Company as its agent for service of process in relation
to
any proceedings before the English courts in connection with any
Finance
Document; and
|
|
(b)
|
agrees
that
failure by a process agent to notify the relevant Obligor of the
process
will not invalidate the proceedings
concerned.
|
IN
WITNESS
whereof this
agreement has been executed on the date first above written.
64
SCHEDULE
1
The
Original Lenders
Part
1 -
The Original Lenders - Other than UK Non-Bank Lenders
|
Name
of Original Lender
|
Commitment
(£)
|
||
|
Citibank,
N.A.
|
56,666,666.67
|
||
|
Commerzbank
AG London Branch
|
56,666,666.67
|
||
|
Deutsche
Bank
AG, London Branch
|
56,666,666.67
|
||
|
Dresdner
Bank
AG Niederlassung Luxembourg
|
56,666,666.67
|
||
|
HSBC
Bank
plc
|
56,666,666.67
|
||
|
JPMorgan
Chase Bank, N.A.
|
56,666,666.67
|
||
|
Lloyds
TSB
Bank PLC
|
56,666,666.67
|
||
|
Xxxxxx
Xxxxxxx Bank
|
56,666,666.67
|
||
|
Société
Générale
|
56,666,666.67
|
||
|
Standard
Chartered Bank
|
56,666,666.67
|
||
|
The
Royal
Bank of Scotland plc
|
56,666,666.63
|
||
|
UBS
Limited
|
56,666,666.67
|
||
|
|
|||
|
TOTAL
|
£680,000,000
|
||
65
SCHEDULE
2
Conditions
Precedent
Part
1 -
Conditions Precedent To Initial Utilisation
|
1.
|
The
Company
|
|
1.1
|
A
copy of the
constitutional documents of the
Company.
|
|
1.2
|
A
copy of a
resolution of the board of directors of the
Company:
|
|
(a)
|
approving
the
terms of, and the transactions contemplated by, the Finance Documents
and
resolving that it execute the Finance Documents to which it is a
party;
|
|
(b)
|
authorising
a
specified person or persons to execute 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/or despatch
all
documents and notices (including, if relevant, any Utilisation Request)
to
be signed and/or despatched by it under or in connection with the
Finance
Documents to which it is a party.
|
|
1.3
|
A
specimen of
the signature of each person authorised by the resolution referred
to in
paragraph 1.2(b).
|
|
1.4
|
A
certificate
of the Company (signed by a director or the Company’s secretary)
confirming that borrowing the Total Commitments would not cause any
borrowing limit binding on the Company to be
exceeded.
|
|
1.5
|
A
certificate
of an authorised signatory of the Company certifying that each copy
document relating to it specified in this part 1 of schedule 2 is
correct,
complete and in full force and effect as at a date no earlier than
the
Signing Date.
|
|
2.
|
Legal
Opinions
|
A
legal opinion of
Xxxxx & Overy, legal advisers to the Arrangers and the Agent in England,
substantially in the form distributed to the Original Lenders prior to signing
this agreement.
|
3.
|
Existing
Facility Agreement
|
Evidence
that the
Company has given notice of prepayment in full of any outstandings and notice
of
cancellation in full under the Existing Facility Agreement, such prepayment
and
cancellation to take effect no later than the first Utilisation Date and the
total commitments under the Existing Facility Agreement have been irrevocably
cancelled.
66
Part
2 -
Conditions Precedent Required to be Delivered by an Additional
Obligor
|
1.
|
An
Accession
Letter, duly executed by the Additional Obligor and the
Company.
|
|
2.
|
A
copy of the
constitutional documents of the Additional
Obligor.
|
|
3.
|
A
copy of a
resolution of the board of directors of the Additional
Obligor:
|
|
3.1
|
approving
the
terms of, and the transactions contemplated by, the Accession Letter
and
the Finance Documents and resolving that it execute the Accession
Letter;
|
|
3.2
|
authorising
a
specified person or persons to execute the Accession Letter on its
behalf;
and
|
|
3.3
|
authorising
a
specified person or persons, on its behalf, to sign and/or despatch
all
other documents and notices (including, in relation to an Additional
Borrower, any Utilisation Request) to be signed and/or despatched
by it
under or in connection with the Finance
Documents.
|
|
4.
|
A
specimen of
the signature of each person authorised by the resolution referred
to in
paragraph 3.
|
|
5.
|
A
copy of a
resolution signed by all the holders of the issued shares of the
Additional Obligor, approving the terms of, and the transactions
contemplated by, the Finance Documents to which the Additional Obligor
is
a party.
|
|
6.
|
A
certificate
of the Additional Obligor (signed by a director) confirming that
borrowing
or guaranteeing, as appropriate, the Total Commitments would not
cause any
borrowing, guaranteeing or similar limit binding on it to be
exceeded.
|
|
7.
|
A
certificate
of an authorised signatory of the Additional Obligor certifying that
each
copy document listed in this part 2 of schedule 2 is correct, complete
and
in full force and effect as at a date no earlier than the date of
the
Accession Letter.
|
|
8.
|
A
copy of any
other Authorisation or other document, opinion or assurance which
the
Agent considers to be necessary or desirable in connection with the
entry
into and performance of the transactions contemplated by the Accession
Letter or for the validity and enforceability of any Finance
Document.
|
|
9.
|
If
available,
the latest audited financial statements of the Additional
Obligor.
|
|
10.
|
A
legal
opinion of Xxxxx & Xxxxx, legal advisers to the Arrangers and the
Agent in England.
|
|
11.
|
If
the
Additional Obligor is incorporated in a jurisdiction other than England
and Wales, a legal opinion of the legal advisers to the Arrangers
and the
Agent in the jurisdiction in which the Additional Obligor is
incorporated.
|
67
SCHEDULE
3
Utilisation
Request
From:
[Borrower]
To:
[Agent]
Dated:
Dear
Sirs
£680,000,000
Multicurrency Revolving Facility Agreement dated 26 October
2006
(the
“Agreement”)
|
1.
|
We
refer to
the Agreement. This is a Utilisation Request. Terms defined in the
Agreement have the same meaning in this Utilisation Request unless
given a
different meaning in this Utilisation
Request.
|
|
2.
|
We
wish to
borrow a Loan on the following
terms:
|
|
Proposed
Utilisation Date:
|
[___________]
(or, if
that is not a Business Day, the next Business
Day)
|
|
Currency
of
Loan:
|
[___________]
|
|
Amount:
|
[___________]
or, if
less, the Available Facility
|
|
Interest
Period:
|
[___________]
|
|
3.
|
We
confirm
that each condition specified in clause 4.2 (Further Conditions Precedent)
is satisfied on the date of this Utilisation
Request.
|
|
4.
|
The
proceeds
of this Loan should be credited to [account].
|
|
5.
|
This
Utilisation Request is irrevocable.
|
Yours
faithfully
authorised
signatory for
[name
of
relevant Borrower]
68
SCHEDULE
4
Mandatory
Cost Formula
|
1.
|
The
Mandatory
Cost is an addition to the interest rate to compensate Lenders for
the
cost of compliance with (a) the requirements of the Bank of England
and/or
the Financial Services Authority (or, in either case, any other authority
which replaces all or any of its functions) or (b) the requirements
of the
European Central Bank.
|
|
2.
|
On
the first
day of each Interest Period (or as soon as possible thereafter) the
Agent
shall calculate, as a percentage rate, a rate (the “Additional
Cost Rate”)
for each
Lender, in accordance with the paragraphs set out below. The Mandatory
Cost will be calculated by the Agent as a weighted average of the
Lenders’
Additional Cost Rates (weighted in proportion to the percentage
participation of each Lender in the relevant Loan) and will be expressed
as a percentage rate per annum.
|
|
3.
|
The
Additional Cost Rate for any Lender lending from a Facility Office
in a
Participating Member State will be the percentage notified by that
Lender
to the Agent. This percentage will be certified by that Lender in
its
notice to the Agent to be its reasonable determination of the cost
(expressed as a percentage of that Lender’s participation in all Loans
made from that Facility Office) of complying with the minimum reserve
requirements of the European Central Bank in respect of loans made
from
that Facility Office.
|
|
4.
|
The
Additional Cost Rate for any Lender lending from a Facility Office
in the
United Kingdom will be calculated by the Agent as
follows:
|
|
(a)
|
in
relation
to a sterling Loan:
|
AB + C(B - D)
+ E x
0.01 |
per
cent. per
annum |
|
100 - (A + C) |
|
(b)
|
in
relation
to a Loan in any currency other than
sterling:
|
E x
0.01 |
per
cent. per
annum. |
300 |
Where:
|
A
|
is
the
percentage of Eligible Liabilities (assuming these to be in excess
of any
stated minimum) which that Lender is from time to time required to
maintain as an interest free cash ratio deposit with the Bank of
England
to comply with cash ratio
requirements.
|
|
B
|
is
the
percentage rate of interest (excluding the Margin and the Mandatory
Cost
and, if the Loan is an Unpaid Sum, the additional rate of interest
specified in clause 10.3(a) (Default Interest)) payable for the relevant
Interest Period on the Loan.
|
|
C
|
is
the
percentage (if any) of Eligible Liabilities which that Lender is
required
from time to time to maintain as interest bearing Special Deposits
with
the Bank of England.
|
|
D
|
is
the
percentage rate per annum payable by the Bank of England to the Agent
on
interest bearing Special Deposits.
|
69
|
E
|
is
designed
to compensate Lenders for amounts payable under the Fees Rules and
is
calculated by the Agent as being the average of the most recent rates
of
charge supplied by the Reference Banks to the Agent pursuant to paragraph
7 below and expressed in pounds per
£1,000,000.
|
|
5.
|
For
the
purposes of this schedule:
|
|
(a)
|
“Eligible
Liabilities”
and
“Special
Deposits”
have the
meanings given to them from time to time under or pursuant to the
Bank of
England Act 1998 or (as may be appropriate) by the Bank of
England;
|
|
(b)
|
“Fees
Rules”
means the
rules on periodic fees contained in the FSA Supervision Manual or
such
other law or regulation as may be in force from time to time in respect
of
the payment of fees for the acceptance of
deposits;
|
|
(c)
|
“Fee
Tariffs”
means the
fee tariffs specified in the Fees Rules under the activity group
A.1
Deposit acceptors (ignoring any minimum fee or zero rated fee required
pursuant to the Fees Rules but taking into account any applicable
discount
rate); and
|
|
(d)
|
“Tariff
Base”
has the
meaning given to it in, and will be calculated in accordance with,
the
Fees Rules.
|
|
6.
|
In
application of the above formulae, A, B, C and D will be included
in the
formulae as percentages (i.e. 5 per cent. will be included in the
formula
as 5 and not as 0.05). A negative result obtained by subtracting
D from B
shall be taken as zero. The resulting figures shall be rounded to
four
decimal places.
|
|
7.
|
If
requested
by the Agent, each Reference Bank shall, as soon as practicable after
publication by the Financial Services Authority, supply to the Agent,
the
rate of charge payable by that Reference Bank to the Financial Services
Authority pursuant to the Fees Rules in respect of the relevant financial
year of the Financial Services Authority (calculated for this purpose
by
that Reference Bank as being the average of the Fee Tariffs applicable
to
that Reference Bank for that financial year) and expressed in pounds
per
£1,000,000 of the Tariff Base of that Reference
Bank.
|
|
8.
|
Each
Lender
shall supply any information required by the Agent for the purpose
of
calculating its Additional Cost Rate. In particular, but without
limitation, each Lender shall supply the following information in
writing
on or prior to the date on which it becomes a
Lender:
|
|
(a)
|
its
jurisdiction of incorporation and the jurisdiction of its Facility
Office;
and
|
|
(b)
|
any
other
information that the Agent may reasonably require for such
purpose,
|
each
Lender shall
promptly notify the Agent in writing of any change to the information provided
by it pursuant to this paragraph.
|
9.
|
The
percentages of each Lender for the purpose of A and C above and the
rates
of charge of each Reference Bank for the purpose of E above shall
be
determined by the Agent based upon the information supplied to it
pursuant
to paragraphs 7 and 8 above and on the assumption that, unless a
Lender
notifies the Agent to the contrary, each Lender’s obligations in relation
to cash ratio deposits and Special Deposits are the same as those
of a
typical bank from its jurisdiction of incorporation with a Facility
Office
in the same jurisdiction as its Facility
Office.
|
70
|
10.
|
The
Agent
shall have no liability to any person if such determination results
in an
Additional Cost Rate which over or under compensates any Lender and
shall
be entitled to assume that the information provided by any Lender
or
Reference Bank pursuant to paragraphs 3, 7 and 8 above is true and
correct
in all respects.
|
|
11.
|
The
Agent
shall distribute the additional amounts received as a result of the
Mandatory Cost to the Lenders on the basis of the Additional Cost
Rate for
each Lender based on the information provided by each Lender and
each
Reference Bank pursuant to paragraphs 3, 7 and 8
above.
|
|
12.
|
Any
determination by the Agent pursuant to this schedule in relation
to a
formula, the Mandatory Cost, an Additional Cost Rate or any amount
payable
to a Lender shall, in the absence of manifest error, be conclusive
and
binding on all Parties.
|
|
13.
|
The
Agent may
from time to time, after consultation with the Company and the Lenders,
determine and notify to all Parties any amendments which are required
to
be made to this schedule in order to comply with any change in law,
regulation or any requirements from time to time imposed by the Bank
of
England, the Financial Services Authority or the European Central
Bank
(or, in any case, any other authority which replaces all or any of
its
functions) and any such determination shall, in the absence of manifest
error, be conclusive and binding on all
Parties.
|
71
SCHEDULE
5
Form
of
Transfer Certificate
| To: |
[____________]
as
Agent
|
|
From:
|
[The
Existing Lender]
(the
“Existing
Lender”)
and
[The
New Lender]
(the
“New
Lender”)
|
Dated:
£680,000,000
Multicurrency Revolving Facility Agreement dated 26 October
2006
(the
“Agreement”)
|
1.
|
We
refer to
the Agreement. This is a Transfer Certificate. Terms defined in the
Agreement have the same meaning in this Transfer Certificate unless
given
a different meaning in this Transfer
Certificate.
|
|
2.
|
We
refer to
clause 24.5 (Procedure for
Transfer):
|
|
2.1
|
the
Existing
Lender and the New Lender agree to the Existing Lender transferring
to the
New Lender by novation all or part of the Existing Lender’s Commitment,
rights and obligations referred to in the schedule in accordance
with
clause 24.5 (Procedure for
Transfer);
|
|
2.2
|
the
proposed
Transfer Date is [_______________];
|
|
2.3
|
the
Facility
Office and address, fax number and attention details for notices
of the
New Lender for the purposes of clause 31.2 (Addresses) are set out
in the
schedule.
|
|
3.
|
The
New
Lender expressly acknowledges the limitations on the Existing Lender’s
obligations set out in clause 24.4(c) (Limitation of Responsibility
of
Existing Lenders).
|
|
4.
|
[The
New
Lender confirms that the person beneficially entitled to interest
payable
to that Lender in respect of a Loan under a Finance Document is
either:
|
|
4.1
|
a
Lender:
|
|
(a)
|
which
is a
bank (as defined for the purpose of section 349 of the Taxes Act)
making a
Loan; or
|
|
(b)
|
in
respect of
a Loan by a person that was a bank (as defined for the purpose of
section
349 of the Taxes Act) at the time that that Loan was
made,
|
and
which is within
the charge to United Kingdom corporation tax as respects any payments of
interest made in respect of that Loan; or
|
4.2
|
a
Lender
which is:
|
|
(a)
|
a
company
resident in the United Kingdom for United Kingdom tax purposes;
|
|
(b)
|
a
partnership
each member of which is:
|
|
(i)
|
a
company so
resident in the United Kingdom; or
|
72
|
(ii)
|
a
company not
so resident in the United Kingdom which carries on a trade in the
United
Kingdom through a permanent establishment and which brings into account
in
computing its chargeable profits (for the purposes of section 11(2)
of the
Taxes Act) the whole of any share of interest payable in respect
of that
Loan that falls to it by reason of sections 114 and 115 of the Taxes
Act;
|
|
(c)
|
a
company not
so resident in the United Kingdom which carries on a trade in the
United
Kingdom through a permanent establishment and which brings into account
interest payable in respect of that Loan in computing the chargeable
profits (for the purposes of section 11(2) of the Taxes Act) of that
company; or
|
|
4.3
|
a
Treaty
Lender.
|
|
[5.]
|
This
Transfer
Certificate 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 Transfer Certificate.
|
| [6.] |
This
Transfer
Certificate is governed by English
law.
|
73
THE
SCHEDULE
Commitment/Rights
and Obligations to be Transferred
[insert
relevant details]
[Facility
Office address, fax number, email address and attention
details
for
notices and account details for payments]
|
[Existing
Lender]
|
[New
Lender]
|
|
By:
|
By:
|
This
Transfer
Certificate is accepted by the Agent and the Transfer Date is confirmed as
[ ].
[Agent]
By:
74
SCHEDULE
6
Form
of
Accession Letter
| To: |
[___________]
as
Agent
|
| From: |
[Subsidiary]
and
[Company]
|
Dated:
Dear
Sirs
£680,000,000
Multicurrency Revolving Facility Agreement dated 26 October
2006
(the
“Agreement”)
|
1.
|
We
refer to
the Agreement. This is an Accession Letter. Terms defined in the
Agreement
have the same meaning in this Accession Letter unless given a different
meaning in this Accession Letter.
|
|
2.
|
[Subsidiary]
agrees to
become an Additional [Borrower]/[Guarantor] and to be bound by the
terms
of the Agreement as an Additional [Borrower]/[Guarantor] pursuant
to
[clause 25.2 (Additional Borrowers)]/[clause 25.4 (Additional Guarantors)]
of the Agreement. [Subsidiary]
is a
company duly incorporated under the laws of [name
of relevant jurisdiction].
|
|
3.
|
[Subsidiary’s]
administrative details are as
follows:
|
Address:
Fax
No:
Email:
Attention:
|
4.
|
This
Accession Letter is governed by English
law.
|
[This
Accession
Letter is entered into by deed.]
[Company] [Subsidiary]
75
SCHEDULE
7
Form
of
Resignation Letter
| To: |
[______________]
as
Agent
|
| From: |
[resigning
Obligor]
and
[Company]
|
Dated:
Dear
Sirs
£680,000,000
Multicurrency Revolving Facility Agreement dated 26 October
2006
(the
“Agreement”)
|
1.
|
We
refer to
the Agreement. This is a Resignation Letter. Terms defined in the
Agreement have the same meaning in this Resignation Letter unless
given a
different meaning in this Resignation
Letter.
|
|
2.
|
Pursuant
to
[clause 25.3 (Resignation of a Borrower)]/[clause 25.5 (Resignation
of a
Guarantor)], we request that [resigning
Obligor]
be released
from its obligations as a [Borrower]/[Guarantor] under the
Agreement.
|
|
3.
|
We
confirm
that:
|
|
3.1
|
no
Default is
continuing or would result from the acceptance of this request;
and
|
|
3.2
|
[the
[resigning
Obligor]
is under no
actual or contingent obligations as a Borrower under any Finance
Documents.]
|
|
4.
|
This
Resignation Letter is governed by English
law.
|
| [Company] |
[Subsidiary]
|
| By: | By: |
76
SCHEDULE
8
Existing
Security
|
Name
of grantor
|
Security
|
Total
Principal Amount of Indebtedness Secured
|
||
|
Reuters
C
LLC
|
(1)
A
continuing lien upon and assignment of all right, title and interest
of
Reuters C LLC in and to the balance of every deposit account of Reuters
C
LLC with any office of JPMorgan Chase Bank, N.A. or any affiliate
or
subsidiary thereof, and in and to all money, instruments, securities,
documents, chattel paper, demands, precious metals, funds, and all
claims
and demands and rights and interest therein of Reuters C LLC, and
in and
to all evidences thereof, which have been or at any time shall be
delivered to or otherwise come into the possession, custody or control
of
any office of JPMorgan Chase Bank, N.A. or any affiliate or subsidiary
thereof, or into the possession, custody or control of any affiliate,
agent or correspondent of any such entity for any purpose. (2) A
security
interest in any and all property Reuters C LLC holds as security
for the
obligations of any party related to the letter of credit issued by
JPMorgan Chase Bank, N.A. by order of Reuters C LLC.
|
U.S.$120,000,000
|
77
SCHEDULE
9
LMA
Form of
Confidentiality Undertaking
| To: |
[insert
name of potential Lender/Affiliate]
|
| From: |
[The
Lender]
|
Dated:
£680,000,000
Multicurrency Revolving Facility Agreement dated 26 October
2006
(the
“Agreement”)
Dear
Sirs
We
understand that you are considering participating in the Agreement. In
consideration of us agreeing to make available to you certain information,
by
your signature of a copy of this letter you agree as follows:
|
1.
|
CONFIDENTIALITY
|
|
1.1
|
Confidentiality
Undertaking
|
You
undertake:
|
(a)
|
to
keep the
Confidential Information confidential and not to disclose it to anyone
except as provided for by paragraph 1.2 below and to ensure that
the
Confidential Information is protected with security measures and
a degree
of care that would apply to your own confidential
information;
|
|
(b)
|
to
keep
confidential and not disclose to anyone the fact that the Confidential
Information has been made available or that discussions or negotiations
are taking place or have taken place between us in connection with
the
Agreement;
|
|
(c)
|
to
use the
Confidential Information only for the Permitted
Purpose;
|
|
(d)
|
to
use all
reasonable endeavours to ensure that any person to whom you pass
any
Confidential Information (unless disclosed under paragraph 1.2(b)
below)
acknowledges and complies with the provisions of this letter as if
that
person were also a party to it; and
|
|
(e)
|
not
to make
enquiries of any member of the Group or any of their officers, directors,
employees or professional advisers relating directly or indirectly
to the
Agreement.
|
|
1.2
|
Permitted
Disclosure
|
We
agree that you
may disclose Confidential Information:
|
(a)
|
to
members of
the Participant Group and their officers, directors, employees and
professional advisers to the extent necessary for the Permitted Purpose
and to any auditors of members of the Participant
Group;
|
|
(b)
|
(i)
where
requested or required by any court of competent jurisdiction or any
competent judicial, governmental, supervisory or regulatory body,
(ii)
where required by the rules of any stock exchange on which the shares
or
other securities of any member of the Participant Group are listed
or
(iii) where required by the laws or regulations of any country with
jurisdiction over the affairs of any member of the Participant Group;
or
|
78
|
(c)
|
with
the
prior written consent of us and the
Company.
|
|
1.3
|
Notification
of Required or Unauthorised
Disclosure
|
You
agree (to the
extent permitted by law) to inform us of the full circumstances of any
disclosure under paragraph 1.2(b) or upon becoming aware that Confidential
Information has been disclosed in breach of this letter.
|
1.4
|
Return
of
Copies
|
If
we so request in
writing, you shall return all Confidential Information supplied to you by us
and
destroy or permanently erase all copies of Confidential Information made by
you
and use all reasonable endeavours to ensure that anyone to whom you have
supplied any Confidential Information destroys or permanently erases such
Confidential Information and any copies made by them, in each case save to
the
extent that you or the recipients are required to retain any such Confidential
Information by any applicable law, rule or regulation or by any competent
judicial, governmental, supervisory or regulatory body or in accordance with
internal policy, or where the Confidential Information has been disclosed under
paragraph 1.2(b) above.
|
1.5
|
Continuing
Obligations
|
The
obligations in
this letter are continuing and, in particular, shall survive the termination
of
any discussions or negotiations between you and us. Notwithstanding the previous
sentence, the obligations in this letter shall cease (a) if you become a party
to or otherwise acquire (by assignment or sub participation) an interest, direct
or indirect in the Agreement or (b) twelve months after you have returned all
Confidential Information supplied to you by us and destroyed or permanently
erased all copies of Confidential Information made by you (other than any such
Confidential Information or copies which have been disclosed under paragraph
1.2
above (other than sub-paragraph 1.2(a)) or which, pursuant to paragraph 1.4
above, are not required to be returned or destroyed).
|
1.6
|
No
Representation; Consequences of Breach, etc
|
You
acknowledge and
agree that:
|
(a)
|
neither
we
nor any of our officers, employees or advisers (each a “Relevant
Person”)
(i) make
any representation or warranty, express or implied, as to, or assume
any
responsibility for, the accuracy, reliability or completeness of
any of
the Confidential Information or any other information supplied by
us or
any member of the Group or the assumptions on which it is based or
(ii)
shall be under any obligation to update or correct any inaccuracy
in the
Confidential Information or any other information supplied by us
or any
member of the Group or be otherwise liable to you or any other person
in
respect to the Confidential Information or any such information;
and
|
|
(b)
|
we
or members
of the Group may be irreparably harmed by the breach of the terms
of this
letter and damages may not be an adequate remedy; each Relevant Person
or
member of the Group may be granted an injunction or specific performance
for any threatened or actual breach of the provisions of this letter
by
you.
|
|
1.7
|
No
Waiver;
Amendments, etc
|
This
letter sets
out the full extent of your obligations of confidentiality owed to us in
relation to the information the subject of this letter. No failure or delay
in
exercising any right, power or privilege under this letter will operate as
a
waiver thereof nor will any single or partial exercise of any right, power
or
privilege preclude any further exercise thereof or the exercise of any other
right, power or privileges under this letter. The terms
79
of
this letter and
your obligations under this letter may only be amended or modified by written
agreement between us.
|
1.8
|
Inside
Information
|
You
acknowledge
that some or all of the Confidential Information is or may be price-sensitive
information and that the use of such information may be regulated or prohibited
by applicable legislation relating to insider dealing and you undertake not
to
use any Confidential Information for any unlawful purpose.
|
1.9
|
Nature
of
Undertakings
|
The
undertakings
given by you under this letter are given to us and (without implying any
fiduciary obligations on our part) are also given for the benefit of the Company
and each other member of the Group.
|
2.
|
MISCELLANEOUS
|
|
2.1
|
Third
party
rights
|
|
(a)
|
Subject
to
paragraph 1.6 and paragraph 1.9 the terms of this letter may be enforced
and relied upon only by you and us and the operation of the Contracts
(Rights of Third Parties) Xxx 0000 is
excluded.
|
|
(b)
|
Notwithstanding
any provisions of this letter, the parties to this letter do not
require
the consent of any Relevant Person or any member of the Group to
rescind
or vary this letter at any time.
|
|
2.2
|
Governing
Law
and Jurisdiction
|
This
letter
(including the agreement constituted by your acknowledgement of its terms)
shall
be governed by and construed in accordance with the laws of England and the
parties submit to the non-exclusive jurisdiction of the English
courts.
|
2.3
|
Definitions
|
In
this letter
(including the acknowledgement set out below):
the
“Company”
means
Reuters Group
PLC;
“Confidential
Information”
means any
information relating to the Company, the Group, and the Agreement and includes
information given orally and any document, electronic file or any other way
of
representing or recording information which contains or is derived or copied
from such information but excludes information that (a) is or becomes public
knowledge other than as a direct or indirect result of any breach of this letter
or (b) is known by you before the date the information is disclosed to you
by us
or any of our affiliates or advisers or is lawfully obtained by you after that
date, other than from a source which is connected with the Group and which,
in
either case, as far as you are aware, has not been obtained in violation of,
and
is not otherwise subject to, any obligation of confidentiality;
“Group”
means the Company
and each of its holding companies and subsidiaries and each subsidiary of each
of its holding companies (as each such term is defined in the Companies Act
1985);
“Participant
Group”
means you, each of
your holding companies and subsidiaries and each subsidiary of each of your
holding companies (as each such term is defined in the Companies Act 1985);
and
80
“Permitted
Purpose”
means considering
and evaluating whether to enter into the Agreement.
Please
acknowledge
your agreement to the above by signing and returning the enclosed
copy.
Yours
faithfully
For
and on behalf
of
[Lender]
81
|
To:
|
[Lender];
and
|
The
Company and
each other member of the Group
We
acknowledge and
agree to the above:
For
and on behalf
of
[potential
Lender/Affiliate]
82
SCHEDULE
10
Timetables
|
Loans
in U.S.$ or euro
|
Loans
in Sterling
|
Loans
in other currencies
|
||||
|
Agent
notifies the Company if a currency is approved as an Optional Currency
in
accordance with clause 4.3(b) (Conditions Relating to Optional
Currencies)
|
Not
Applicable
|
Not
Applicable
|
5.00
p.m. on
the third Business Day after receipt of a request from the Company
for
approval of a currency pursuant to clause 4.3(a)(ii)
|
|||
|
Delivery
of a
duly completed Utilisation Request (clause 5.1 (Delivery of a Utilisation
Request))
|
3.00
p.m. on
the third Business Day before the proposed Utilisation
Date
|
8.00
a.m. on
the proposed Utilisation Date
|
3.00
p.m. on
the third Business Day before the proposed Utilisation
Date
|
|||
|
Agent
determines (in relation to a Loan) the Base Currency Amount of the
Loan,
if required under clause 5.4(c) (Lenders’ Participation) and notifies the
Lenders of the Loan in accordance with clause 5.4(c) (Lender’s
Participation)
|
5.00
p.m. on
the third Business Day before the proposed Utilisation
Date
|
10.30
a.m. on
the proposed Utilisation Date
|
5.00
p.m. on
the third Business Day before the proposed Utilisation
Date
|
|||
|
Agent
receives a notification from a Lender under clause 7.2 (Unavailability
of
a Currency)
|
Not
Applicable
|
Not
Applicable
|
9.30
a.m. on
the second Business Day before the proposed Utilisation
Date
|
|||
|
Agent
gives
notice to the Company in accordance with clause 7.2 (Unavailability
of a
Currency)
|
Not
Applicable
|
Not
Applicable
|
10.45
a.m. on
the second Business Day before the proposed Utilisation
Date
|
|||
|
LIBOR
or
EURIBOR is fixed
|
Quotation
Day
as of 11.00 a.m. London time in respect of LIBOR and as of 11.00
a.m.
Brussels time in respect of EURIBOR
|
Quotation
Day
as of 11.00 a.m.
|
Quotation
Day
as of 11.00 a.m.
|
83
SCHEDULE
11
Material
Subsidiaries
| To: |
[________________]
as
Agent
|
| From: |
[Company]
|
Dated:
Dear
Sirs
£680,000,000
Multicurrency Revolving Facility Agreement dated 26 October
2006
(the
“Agreement”)
|
1.
|
We
refer to
the Agreement. Terms defined in the Agreement have the same meaning
when
used in this certificate unless given a different meaning in this
certificate.
|
|
2.
|
Based
on the
consolidated financial statements of the Group for the financial
year
ended [·],
the
Material Subsidiaries were:
|
[·]
Signed:
|
|
|
| Director |
Director
|
| of | of |
| [Company] | [Company] |
84
SIGNATORIES
Company
|
Signed
by
for
and on
behalf of REUTERS
GROUP PLC:
|
)
)
)
)
|
/s/
XXXXX XXXXXXX
|
Mandated
Lead Arrangers
|
Signed
by
for
and on
behalf of CITIGROUP
GLOBAL MARKETS LIMITED:
|
)
)
)
)
|
/s/ XXXXXXX
XXXXXXXX-XXXXX
|
|
Signed
by
for
and on
behalf of COMMERZBANK
AG LONDON BRANCH:
|
)
)
)
)
|
/s/ XXXX
XXXXX
|
|
Signed
by
for
and on
behalf of DEUTSCHE
BANK AG, LONDON BRANCH:
|
)
)
)
)
|
/s/ XXXXX
XXXXXXX
/s/
XXXXXXX XXXXXXXX
|
|
Signed
by
for
and on
behalf of DRESDNER
BANK AG NIEDERLASSUNG LUXEMBOURG:
|
)
)
)
)
|
/s/ XXX
XXXXX
|
|
Signed
by
for
and on
behalf of HSBC
BANK plc:
|
)
)
)
)
|
/s/ XXX
XXXXXX
|
|
Signed
by
for
and on
behalf of X.X.
XXXXXX plc:
|
)
)
)
)
|
/s/ XXX-XXXXXXX
XXXXXX
|
|
Signed
by
for
and on
behalf of LLOYDS
TSB BANK PLC:
|
)
)
)
)
|
/s/ XXX
XXXXXXXX
|
85
|
Signed
by
for
and on
behalf of XXXXXX
XXXXXXX BANK INTERNATIONAL LIMITED:
|
)
)
)
)
)
|
/s/ HUGO
BARING
|
|
Signed
by
for
and on
behalf of SOCIETE
GENERALE:
|
)
)
)
)
|
/s/ XXXXX
POMFORD
|
|
Signed
by
for
and on
behalf of STANDARD
CHARTERED BANK:
|
)
)
)
)
|
/s/ XXXX
XXXXXXX /s/ XXXXXXX XXXXXX
|
|
Signed
by
for
and on
behalf of THE
ROYAL BANK OF SCOTLAND plc:
|
)
)
)
)
|
/s/ XXXXXX
XXXXXXX
|
|
Signed
by
for
and on
behalf of UBS
LIMITED:
|
)
)
)
|
/s/ XXXXXX
XXXXX
/s/ XXXXXX XXXXXXXXXX
|
Lenders
|
Signed
by
for
and on
behalf of CITIBANK,
N.A.:
|
)
)
)
)
|
/s/ XXXXXXX
XXXXXXXX-XXXXX
|
|
Signed
by
for
and on
behalf of COMMERZBANK
AG LONDON BRANCH:
|
)
)
)
)
|
/s/ XXXX
XXXXX
|
|
Signed
by
for
and on
behalf of DEUTSCHE
BANK AG, LONDON BRANCH:
|
)
)
)
)
|
/s/ XXXXX
XXXXXXX
/s/ XXXXXXX XXXXXXXX
|
|
Signed
by
for
and on
behalf of DRESDNER
BANK AG NIEDERLASSUNG LUXEMBOURG:
|
)
)
)
)
|
/s/ XXX
XXXXX
|
86
|
Signed
by
for
and on
behalf of HSBC
BANK plc:
|
)
)
)
)
|
/s/ XXX
XXXXXX
|
|
Signed
by
for
and on
behalf of JPMORGAN
CHASE BANK, N.A.:
|
)
)
)
)
|
/s/ XXX-XXXXXXX
XXXXXX
|
|
Signed
by
for
and on
behalf of LLOYDS
TSB BANK PLC:
|
)
)
)
)
|
/s/ XXX
XXXXXXXX
|
|
Signed
by
for
and on
behalf of XXXXXX
XXXXXXX BANK:
|
)
)
)
)
)
|
/s/ HUGO
BARING
|
|
Signed
by
for
and on
behalf of SOCIETE
GENERALE:
|
)
)
)
)
|
/s/ XXXXX
POMFORD
|
|
Signed
by
for
and on
behalf of STANDARD
CHARTERED BANK:
|
)
)
)
)
|
/s/ XXXX
XXXXXXX
/s/ XXXXXXX XXXXXX
|
|
Signed
by
for
and on
behalf of THE
ROYAL BANK OF SCOTLAND plc:
|
)
)
)
)
|
/s/ XXXXXX
XXXXXXX
|
|
Signed
by
for
and on
behalf of UBS
LIMITED:
|
)
)
)
)
|
/s/ XXXXXX
XXXXX
/s/ XXXXXX XXXXXXXXXX
|
Agent
|
Signed
by
for
and on
behalf of HSBC
BANK plc:
|
)
)
)
)
|
/s/ XXX
XXXXXX
|
87
