AGREEMENT
Dated 16th April, 1999
U.S.$10,500,000,000
TERM AND REVOLVING CREDIT FACILITY
for
VODAFONE GROUP Plc
and
AIRTOUCH COMMUNICATIONS, INC.
arranged by
BANK OF AMERICA INTERNATIONAL LIMITED
BANQUE NATIONALE DE PARIS
BARCLAYS CAPITAL
CITIBANK, N.A.
DEUTSCHE BANK AG LONDON
XXXXXXX XXXXX INTERNATIONAL
GREENWICH NATWEST LIMITED
HSBC INVESTMENT BANK plc
ING BARINGS
NATIONAL AUSTRALIA BANK LIMITED
and
WESTDEUTSCHE LANDESBANK GIROZENTRALE
with
NATIONAL WESTMINSTER BANK Plc
as Agent and
U.S. Swingline Agent
XXXXX & OVERY
London
INDEX
CLAUSE PAGE
----
1. Interpretation.......................................................................................1
2. The Facilities......................................................................................21
3. Purpose.............................................................................................25
4. Conditions Precedent................................................................................25
5. Advances............................................................................................27
6. Repayment...........................................................................................30
7. Prepayment and Cancellation.........................................................................32
8. Interest............................................................................................36
9. Payments............................................................................................42
10. Taxes...............................................................................................44
11. Market Disruption...................................................................................48
12. Increased Costs.....................................................................................49
13. Illegality and Mitigation...........................................................................51
14. Guarantee...........................................................................................51
15. Representations and Warranties......................................................................54
16. Undertakings........................................................................................58
17. Financial Covenants.................................................................................62
18. Default.............................................................................................66
19. The Agents and the Arrangers........................................................................69
20. Fees................................................................................................74
21. Expenses............................................................................................76
22. Stamp Duties........................................................................................76
23. Indemnities.........................................................................................77
24. Evidence and Calculations...........................................................................79
25. Amendments and Waivers..............................................................................80
26. Changes to the Parties..............................................................................81
27. Disclosure of Information...........................................................................85
28. Set-off.............................................................................................85
29. Pro Rata Sharing....................................................................................86
30. Severability........................................................................................87
31. Counterparts........................................................................................87
32. Notices.............................................................................................87
33. Language............................................................................................88
34. Jurisdiction........................................................................................89
35. Governing Law.......................................................................................90
SCHEDULE PAGE
----
1. Part I -Lenders and Commitments.....................................................................91
Part II -Swingline Lenders and Swingline Commitments................................................92
2. Conditions Precedent Documents......................................................................93
Part I -To be Delivered before the First Advance....................................................93
Part II -To be Delivered by AirTouch if it becomes an Additional Guarantor..........................95
Part III -To be Delivered by an Additional Guarantor (other than AirTouch)..........................97
3. Calculation of the Mandatory Cost...................................................................99
4. Form of Request....................................................................................101
5. Forms of Accession Documents.......................................................................103
Part I -Novation Certificate.......................................................................103
Part II -Guarantor Accession Agreement.............................................................105
Part III -Form of Borrower Novation Agreement......................................................106
6. Form of Confidentiality Undertaking from New Lender................................................108
SIGNATORIES.................................................................................................111
THIS AGREEMENT is dated [ ]April, 1999 and made BETWEEN:
(1) VODAFONE GROUP Plc (Registered number 1833679) and AIRTOUCH
COMMUNICATIONS, INC. as borrowers (the "BORROWERS");
(2) BANK OF AMERICA INTERNATIONAL LIMITED, BANQUE NATIONALE DE PARIS,
BARCLAYS CAPITAL, CITIBANK, N.A., DEUTSCHE BANK AG LONDON, XXXXXXX
SACHS INTERNATIONAL, GREENWICH NATWEST LIMITED, HSBC INVESTMENT BANK
plc, ING BARINGS, NATIONAL AUSTRALIA BANK LIMITED (ACN OO4 044 937),
and WESTDEUTSCHE LANDESBANK GIROZENTRALE as arrangers (in this capacity
the "ARRANGERS");
(3) THE FINANCIAL INSTITUTIONS listed in Part I of Schedule 1 as Lenders;
(4) NATIONAL WESTMINSTER BANK Plc as agent (in this capacity the "AGENT");
and
(5) NATIONAL WESTMINSTER BANK Plc as U.S. swingline agent (in this capacity
the "U.S. SWINGLINE AGENT").
IT IS AGREED as follows:
1. INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"ACQUISITION"
means the acquisition of any interest in the share capital (or
equivalent) or in the business or undertaking of any company or other
person (including, without limitation, any partnership or joint
venture).
"ADDITIONAL GUARANTOR"
means AirTouch or any member of the Group if AirTouch or such member of
the Group at such time has become a Guarantor in accordance with Clause
26.4 (Additional Guarantors) and has not been released in accordance
with Clause 14.9 (Removal of Guarantors).
"ADVANCE"
means a Tranche A Advance, a Tranche B Advance, a Tranche C Advance or
a Swingline Advance.
"AFFILIATE"
(a) means a Subsidiary or a holding company (as defined in Section
736 of the Companies Act 1985) of a person and any other
Subsidiary of that holding company; and
(b) for the purposes of this Agreement Xxxxxxx Xxxxx International
Bank and Xxxxxxx Sachs Credit Partners, L.P. will be treated
as Affiliates of each other.
"AGENT'S SPOT RATE OF EXCHANGE"
means the spot rate of exchange as determined by the Agent for the
purchase of the relevant Optional Currency in the London foreign
exchange market with U.S. Dollars at or about 9:00 a.m. on a particular
day.
"AGREED PERCENTAGE"
means in relation to a Lender and a Swingline Advance, the amount of
its Tranche C Commitment expressed as a percentage of the Tranche C
Total Commitments.
"AIRTOUCH"
means AirTouch Communications, Inc.
"AIRTOUCH GROUP"
means AirTouch and its Subsidiaries.
"ANNIVERSARY"
means an anniversary of the Signing Date.
"ASSET DISPOSAL"
means any sale, transfer, grant, lease or other disposal of an asset
(including, but not limited to, a disposal of any interest in any
Subsidiary or Affiliate) by any member of the Group to a person outside
the Group made after the Signing Date.
"BACK TO BACK LOAN"
means any Financial Indebtedness made available to a member of the
Restricted Group to the extent that the economic exposure of the
creditor in respect of that Financial Indebtedness (taking any related
transactions together) is reduced by reason of that creditor:
(a) having 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; or
(b) having granted a funded sub-participation or similar
arrangement to a member of the Restricted Group.
"BORROWERS' AGENT"
means Vodafone.
"BUSINESS DAY"
means a day (other than a Saturday or Sunday) on which banks and the
interbank and foreign exchange markets are open for business in:
(a) London; and
(b) if a payment is required in U.S. Dollars, New York,
but, in relation to a rate fixing for euros, means a day on which the
Trans-European Automated Real-Time Gross Settlement Express Transfer
System (TARGET) is operating.
"COMMITMENT"
means, in respect of a Lender, the aggregate of its Tranche A
Commitment, its Tranche B Commitment and its Tranche C Commitment
(including its Swingline Commitment, if applicable, but without double
counting), in each case to the extent not transferred, cancelled or
reduced under or in accordance with this Agreement.
"CONTROLLED GROUP"
means all members of a controlled group of corporations and all trades
or businesses (whether or not incorporated) under common control which,
together with any Obligor, are treated as a single employer under
Section 414(b) or (c) of the U.S. Code.
"DEFAULT"
means an Event of Default or an event which, with the expiry of any
grace period or giving of any notice specified in Clause 18.2, 18.3,
18.5, 18.6, 18.8 or 18.10 would constitute an Event of Default.
"DRAWDOWN DATE"
means the date for the making of an Advance.
"EMU"
means Economic and Monetary Union as contemplated by the Treaty.
"EMU LEGISLATION"
means legislative measures of the European Council for the introduction
of, changeover to, or operation of, a single or unified European
currency.
"ERISA"
means the U.S. Employee Retirement Income Security Act of 1974, as
amended, and any rule or regulation issued thereunder from time to time
in effect.
"EURO" OR "EUROS"
means the single currency introduced on 1st January, 1999 as
contemplated by the Treaty.
"EURO UNIT"
means a unit of the euro as defined in EMU legislation.
"EVENT OF DEFAULT"
means an event specified as such in Clause 18 (Default).
"FACILITY"
means any of the facilities to draw Tranche A Advances, Tranche B
Advances, Tranche C Advances or Swingline Advances referred to in
Clause 2.1 (Facilities).
"FACILITY OFFICE"
means the office(s) notified by a Lender to the Agent:
(a) on or before the date it becomes a Lender; or
(b) by not less than five Business Days' notice,
as the office(s) through which it will perform all or any of its
obligations under this Agreement.
"FEDERAL FUNDS RATE"
means, on any day:
(a) the rate per annum determined by the U.S. Swingline Agent to
be the Federal Funds Rate (as published by the Federal Reserve
Bank of New York) at or about 1.00 p.m. (New York City time)
on that day; or
(b) if such rate is not published at such time, the rate for such
day will be the arithmetic mean as determined by the Swingline
Agent of the rates for the last transaction in overnight
Federal funds arranged prior to noon (New York City time) on
that day by each of three leading brokers of Federal funds
transactions in New York City selected by the Swingline Agent.
"FEE LETTERS"
means each letter dated on or about the Signing Date:
(a) between the Agent and Vodafone; and
(b) between the Arrangers and Vodafone,
in each case setting out the amount of various fees referred to in
Clause 20 (Fees).
"FINAL MATURITY DATE"
means the fifth Anniversary.
"FINANCE DOCUMENT"
means this Agreement, each Fee Letter, Novation Certificate, and
Guarantor Accession Agreement, a Borrower Novation Agreement (as
defined in Clause 26.5(b)(iv) (Novation of
AirTouch's obligations)) and any other document agreed in writing as
such by the Agent and the Borrowers' Agent.
"FINANCE PARTY"
means an Arranger, a Lender, the Agent or the U.S. Swingline Agent.
"FINANCIAL INDEBTEDNESS"
means any indebtedness in respect of:
(a) moneys borrowed or raised;
(b) any debenture, bond, note, loan stock, commercial paper or similar
instrument;
(c) any acceptance credit, xxxx-discounting, note purchase or
documentary credit facility;
(d) any finance lease;
(e) any receivables purchase, factoring or discounting arrangement
under which there is recourse in whole or in part to any member
of the Group;
(f) any other transaction having the commercial effect of a borrowing
or other raising of money entered into by a person to finance its
business or operations or capital requirements; or
(g) any guarantees or other legally binding assurance against
financial loss in respect of the indebtedness of any person
arising under an obligation falling within (a) to (f) above,
but without double counting and excluding preference shares redeemable
only after the Final Maturity Date.
"GROUP"
means Vodafone and its Subsidiaries.
"GUARANTOR"
means each of:
(a) Vodafone; and
(b) each Additional Guarantor.
"GUARANTOR ACCESSION AGREEMENT"
means a deed substantially in the form of Part II of Schedule 5 or with
such amendments as the Agent may approve (such approval not to be
unreasonably withheld or delayed) or may reasonably require.
"HOLDING COMPANY"
means in relation to a person, an entity of which that person is a
Subsidiary.
"INFORMATION MEMORANDUM"
means the Information Memorandum dated 1st March, 1999 prepared by
Vodafone and delivered to the Arrangers in connection with this
Agreement.
"INTEREST DATE"
means the last day of an Interest Period.
"INTEREST PERIOD"
in respect of a Tranche B Advance or a Term-out Advance, has the
meaning given to it in Clause 8.1 (Selection of Interest Periods for
Tranche B and Term-out Advances).
"LENDER"
means a financial institution or other entity listed in Part I or Part
II of Schedule 1 or a transferee, successor or assign of such financial
institution or other entity which is for the time being participating
in the Facilities.
"LIBOR"
means in relation to any Advance or unpaid sum:
(a) the rate per annum of the offered quotation for deposits in
the currency of the relevant Advance or unpaid sum for a
period equal or comparable to the required period which
appears on Telerate Page 3750 or Telerate Page 3740 (as
appropriate) at or about 11.00 a.m. on the applicable Rate
Fixing Day; or
(b) if the rate cannot be determined under paragraph (a) above, or
in the case of an Advance (or Advances drawn down or rolled
over on the same day) exceeding U.S.$5,000,000,000 or
equivalent during the Primary Syndication Period and
U.S.$4,000,000,000 or equivalent thereafter, the rate
expressed as a percentage determined by the Agent to be the
arithmetic mean (rounded upwards, if necessary, to the nearest
five decimal places) of the respective rates notified to the
Agent by each of the Reference Banks quoting (provided that at
least two Reference Banks are quoting) as the rate at which it
is offered deposits in the required currency and for the
required period by prime banks in the London interbank market
at or about 11.00 a.m. on the Rate Fixing Day for such period,
and for the purposes of this definition:
(i) "REQUIRED PERIOD" means the applicable Interest Period for a
Tranche B Advance or Term-out Advance, the Term of such
Advance for Tranche A Advances (except Term-out Advances) and
Tranche C Advances, or the period in respect of which LIBOR
falls to be determined in relation to any unpaid sum; and
(ii) "TELERATE PAGE 3750" means the display designated as Page
3750, and "TELERATE PAGE 3740" means the display designated as
Page 3740, in each case on the Telerate Service (or such other
pages as may replace page 3750 or Page 3740 on that service or
such other service as may be nominated by the British Bankers'
Association (including the Reuters Screen) as the information
vendor for the purposes of displaying British Bankers'
Association Interest Settlement Rates for deposits in the
currency concerned).
"MAJORITY LENDERS"
means, at any time:
(a) Lenders whose Commitments aggregate more than 66 2/3 per cent.
of the Total Commitments; or
(b) if the Total Commitments have been reduced to zero, Lenders
whose Commitments aggregated more than 66 2/3 per cent. of the
Total Commitments immediately before the reduction.
"MANDATORY COST"
means in relation to an Advance (other than a Swingline Advance), the
cost (if any) of compliance with the cash ratio deposit requirements of
the Bank of England and the amount (if any) of fees payable to the
Financial Services Authority during its Term or Interest Period,
determined in accordance with Schedule 3.
"MARGIN"
in relation to a Tranche at any time means the percentage rate per
annum determined to be the Margin applicable to that Tranche in
accordance with Clause 8.6 (Margin and commitment fee).
"MATURITY DATE"
means the last day of the Term of:
(a) a Tranche A Advance (except a Term-out Advance);
(b) a Tranche C Advance; or
(c) a Swingline Advance,
and, in the case of a Term-out Advance, means the date specified as
such in the Request for that Advance.
"MERGER"
means the merger of Apollo Merger Sub, Inc. (a wholly owned Subsidiary
of Vodafone) with AirTouch in accordance with the Merger Agreement.
"MERGER AGREEMENT"
means the agreement and plan of merger between Vodafone, AirTouch and
Apollo Merger Sub, Inc. (a wholly owned Subsidiary of Vodafone) dated
15th January, 1999, providing for the merger of Apollo Merger Sub, Inc.
with and into AirTouch.
"MERGER DATE"
means the date the Merger becomes effective in accordance with Section
1.2.2 of the Merger Agreement.
"XXXXX'X"
means Xxxxx'x Investors' Services, Inc.
"MULTIEMPLOYER PLAN"
means a "multiemployer plan" as defined in Section 4001(a)(3) of ERISA
to which any Obligor or any member of the Controlled Group has an
obligation to contribute.
"NATIONAL CURRENCY UNIT"
means the unit of currency (other than a euro unit) of a Treaty
Country.
"NET AVAILABLE PROCEEDS"
means, in relation to any Asset Disposal, such part of the Net Cash
Proceeds as any Borrower is able lawfully to apply in prepayment of
Advances and, in the case of any such disposal effected by any
Subsidiary of Vodafone other than a Borrower, such part of the Net Cash
Proceeds as:
(a) such Subsidiary would be able lawfully to make available,
directly or indirectly, to any Borrower to enable it to make
such application;
(b) that Borrower is able lawfully to so apply;
(c) in the case of a disposal outside the United Kingdom or United
States, Vodafone has reasonably determined can be repatriated
to a Borrower in order to apply the same in prepayment of
Advances without breaching any relevant exchange control or
similar restrictions in the country where the Net Cash
Proceeds are received or receivable by the relevant member of
the Group,
provided that in each case the relevant member of the Group takes all
steps that are reasonably open to it to obtain any exchange control
clearance or other consents, permits, authorisations or licences which
are required to enable the Net Cash Proceeds to be repatriated to, and
applied by, a Borrower in order to effect such a prepayment.
"NET BOND PROCEEDS"
means any proceeds (net of fees and expenses) received by or for the
account of Vodafone from any bond or capital market debt issue made by
or guaranteed by Vodafone or any other member of the Restricted Group
which, in the case of a Subsidiary of Vodafone, such
Subsidiary would be able lawfully to make available to a Borrower to
enable it to apply the same in prepayment of Advances and such Borrower
is able lawfully so to apply.
"NET CASH PROCEEDS"
means, in relation to any Asset Disposal, (i) the cash proceeds of such
disposal actually received by the member of the Group concerned from a
person outside the Group and (ii) as at the date of actual receipt
thereof by the relevant member of the Group, any deferred cash
consideration relating to such disposal from a person outside the
Group, LESS:
(a) all legal, title, registration and recording and other taxes
and expenses, commissions, costs, fees and expenses incidental
to, incurred on and fairly attributable to, that Asset
Disposal;
(b) such amount as Vodafone shall reasonably consider necessary as
provision against the liability of any member of the Group to
pay any tax arising as a result of that Asset Disposal;
(c) in the case of a disposal effected by a Subsidiary of
Vodafone, such provision as Vodafone shall reasonably consider
necessary for all costs and taxes incurred by the Group and
fairly attributable to up-streaming the cash or cash
equivalent proceeds or making any distribution to enable them
to reach a Borrower (including, without limitation, the
repayment of Financial Indebtedness related to the assets the
subject of the Asset Disposal which are required to be repaid
in order to complete the Asset Disposal);
(d) in the case of a disposal by a Subsidiary that is not a wholly
owned Subsidiary of Vodafone, the pro rata share of such cash
proceeds attributable to the minority interests in that
Subsidiary; and
(e) in the case of a disposal comprising a finance lease as
described in Clause 16.8(f) (Priority borrowings), future
rental payments (and any other amounts deducted under
paragraphs (a) to (d) above).
"NEW YORK BUSINESS DAY"
means a day (other than a Saturday or Sunday) on which banks are open
for business in New York.
"NOVATION CERTIFICATE"
has the meaning given to it in Clause 26.3(a)(i) (Procedure for
novations).
"OBLIGOR"
means each Borrower and each Guarantor.
"OPTIONAL CURRENCY"
means, in relation to any Advance or proposed Advance, Sterling or
euros.
"ORIGINAL DOLLAR AMOUNT"
means:
(a) the principal amount of an Advance denominated in U.S.
Dollars; or
(b) the principal amount of an Advance denominated in any other
currency, translated into U.S. Dollars on the basis of the
Agent's Spot Rate of Exchange on the date of receipt by the
Agent of the Request for that Advance.
"ORIGINAL GROUP ACCOUNTS"
means the audited consolidated accounts of the Group for the year ended
31st March, 1998.
"PARTY"
means a party to this Agreement.
"PBGC"
means the Pension Benefit Guaranty Corporation referred to and defined
in ERISA, or any successor.
"PERMITTED SECURITY INTEREST"
means:
(a) Security Interests arising out of retention of title
provisions or created or subsisting over documents of title,
insurance policies (including any export credit agencies'
agreements) and sale contracts in relation to commercial goods
in each case created or made in the ordinary course of
business to secure the purchase price of such goods or loans
to finance such purchase price; or
(b) any Security Interests over any assets acquired by a member of
the Restricted Group after the date of this Agreement (or over
the assets of any person, except AirTouch and its existing
Subsidiaries, that is acquired by and becomes a member of the
Restricted Group after the date of this Agreement) provided
that:
(i) any such Security Interest is in existence before the
acquisition and is not created in contemplation of
the acquisition; and
(ii) to the extent that the aggregate principal amount
secured by such Security Interests upon the
acquisition is thereafter exceeded (measured in the
same currency) such Security Interest shall not fall
within this paragraph (b); or
(c) any Security Interest created for the purpose of securing
obligations of Vodafone or any member of the Restricted Group
under any agreement (including, without limitation, any
agreement under Section 106 of the Town and County Planning
Xxx 0000 or Section 111 of the Local Government Act 1972)
entered into with a local or other public authority and
related to the development or maintenance of property owned by
Vodafone or any member of the Restricted Group; or
(d) any Security Interest created on or subsisting over any asset
held in the Euro-Clear System, Cedelbank or any other
securities depository or any clearing house pursuant to the
standard terms and procedures of the relevant clearing house
applicable in the normal course of trading; or
(e) any Security Interest which arises in connection with any cash
management, set-off or netting arrangements made between banks
or financial institutions and any member(s) of the Restricted
Group in the ordinary course of business; or
(f) any Security Interest created in favour of a plaintiff or
defendant in any action of the court or tribunal before whom
such action is brought as pre-judgement security for costs or
expenses where any member of the Restricted Group is
prosecuting or defending such action in the bona fide interest
of the Group; or
(g) any Security Interest created pursuant to any order of
attachment, distraint, garnishee order, arrestment,
adjudication or injunction or interdict restraining disposal
of assets or similar legal process arising in connection with
pre-judgement court proceedings; or
(h) any Security Interest which arises by operation of law in the
ordinary course of trading and securing an amount not more
than 45 days overdue or which is being contested in good faith
on the basis of favourable legal advice; or
(i) any Security Interests over shares in entities which are not
members of the Restricted Group which do not secure Financial
Indebtedness of the Restricted Group; or
(j) to the extent they constitute Security Interests (or to the
extent that the relevant transaction includes the creation of
any Security Interest over the assets which are the subject of
the finance lease), finance leases in respect of existing or
future assets as contemplated by paragraph (f) of Clause 16.8
(Priority borrowing); or
(k) any Security Interest comprising a right of set-off which
arises by operation of law or by agreement having
substantially the same effect; or
(l) any Security Interest for taxes, assessments or charges not
yet due or that are being contested in good faith by
appropriate proceedings and (unless the amount thereof is not
material to the Group's consolidated financial condition) for
which adequate reserves are being maintained (in accordance
with generally accepted accounting principles); or
(m) deposits or pledges to secure obligations under workers'
compensation, social security or similar laws, or under
unemployment insurance; or
(n) any Security Interests created with the prior written consent
of the Majority Lenders; or
(o) any Security Interests over deposits of cash or cash
equivalent investments securing (directly or indirectly)
Financial Indebtedness under (i) finance or structured tax
lease arrangements as described in paragraph (b) of Clause
16.8 (Priority borrowing) or (ii) Back to Back Loans; or
(p) any Security Interest (a "SUBSTITUTE SECURITY INTEREST") which
replaces any other Security Interest permitted under (a) to
(o) above inclusive and which secures an
amount not exceeding the principal amount secured by such
permitted Security Interest at the time it is replaced
together with any interest accruing on such amounts from the
date such substitute Security Interest is created or arises
and any related fees or expenses provided that the existing
Security Interest to be replaced is released and all amounts
secured thereby are paid or otherwise discharged in full at or
prior to the time of such substitute Security Interest being
created or arising; or
(q) any other Security Interests (in addition to those listed in
(a) to (p) above) where the aggregate principal amount secured
by all such Security Interests does not exceed
(pound)500,000,000 or its equivalent.
"PLAN"
means an "employee benefit plan" (as defined in section 3(3) of ERISA).
"PRIMARY SYNDICATION PERIOD"
means the period ending on the earlier of:
(a) the date the Arrangers notify the Borrowers' Agent that
general syndication of the Facilities is completed (which the
Arrangers shall do as soon as reasonably practicable after
completion of general syndication); and
(b) three months after launch of sub-underwriting of the
Facilities.
"PRIME RATE"
means the prime commercial lending rate for U.S. Dollars from time to
time announced by the U.S. Swingline Agent; each change in the interest
rate on a Swingline Advance which results from a change in the Prime
Rate becomes effective on the day on which the change in the Prime Rate
becomes effective.
"PRINCIPAL SUBSIDIARY"
means AirTouch and any Subsidiary of Vodafone which is a member of the
Restricted Group whose unconsolidated profits before interest,
amortisation and tax exceed 10 per cent. of Consolidated Profits Before
Interest, Amortisation and Tax, as determined by reference to the most
recent annual audited financial statements of such Subsidiary and the
most recent annual audited financial statements of the Group. For the
purposes of this definition:
(a) profits before interest, amortisation and tax of the relevant
Subsidiary will be calculated in the same manner as
Consolidated Profits Before Interest, Amortisation and Tax in
Clause 17.1 (Financial Definitions), but as if references in
the definition of Consolidated Profits Before Interest,
Amortisation and Tax to the "GROUP" were references to that
Subsidiary;
(b) any Subsidiary of AirTouch which will become a Principal
Subsidiary after the Merger Date will be deemed to be a
Principal Subsidiary prior to the Merger Date;
(c) if any Principal Subsidiary sells, transfers or otherwise
disposes of the majority of its undertaking or assets (whether
by a single transaction or a number of related transactions)
to any member of the Restricted Group:
(i) that member of the Restricted Group shall be deemed
to become a Principal Subsidiary on the date of the
relevant sale, transfer or disposal; and
(ii) any Principal Subsidiary which sells, transfers or
otherwise disposes of the majority of its undertaking
or assets (whether by a single transaction or a
number of related transactions) shall no longer be a
Principal Subsidiary on the date of the relevant
sale, transfer or disposal,
until the Principal Subsidiaries are next determined from the
annual audited financial statements referred to above;
(d) any Subsidiary of Vodafone which will cease to be a Principal
Subsidiary after the Merger Date will, in the period before
the Merger Date, be deemed not to be a Principal Subsidiary;
and
(e) during the period from the Merger Date until the first annual
audited accounts of the Group (consolidated to include the
AirTouch Group) are published, the consolidated profits before
interest, amortisation and tax of the AirTouch Group
(calculated in the same manner as Consolidated Profits before
Interest, Amortisation and Tax in Clause 17.1 (Financial
Definitions), but as if references in the definition of
Consolidated Profits before Interest, Amortisation and Tax to
the "GROUP" were references to the AirTouch Group, and
determined by reference to the most recent annual audited
accounts of the AirTouch Group) will be added to Consolidated
Profits before Interest, Amortisation and Tax (calculated as
described in the first paragraph of this definition).
"QUALIFYING LENDER"
means a bank or financial institution which is:
(a) a bank as defined in Section 840A of the Income and
Corporation Taxes Act 1988 which is within the charge to
corporation tax as regards each payment of interest received
by it under this Agreement and which is beneficially entitled
to that interest; or
(b) a person (a "TREATY LENDER") which is (i) resident (as such
term is defined in the appropriate double taxation treaty) in
a country with which the United Kingdom has an appropriate
double taxation treaty under which residents of that country
are entitled to complete exemption from United Kingdom tax on
interest and is entitled to apply under the Double Taxation
Relief (Taxes on Income) (General) Regulations 1970 to have
interest paid to its Facility Office without withholding or
deduction for or on account of United Kingdom taxation and
(ii) does not carry on business in the United Kingdom through
a permanent establishment with which the investments under
this Agreement in respect of which the interest is paid are
effectively connected; and for this purpose "DOUBLE TAXATION
TREATY" means any convention or agreement between the
government of the United Kingdom and any other government for
the avoidance of double taxation and the prevention of fiscal
evasion with respect to taxes on income and capital gains.
"RATE FIXING DAY"
means:
(a) the Drawdown Date for an Advance denominated in Sterling (or,
in the case of a Tranche B Advance or Term-out Advance
denominated in Sterling, the first day of each applicable
Interest Period); or
(b) the second Business Day before the Drawdown Date for an
Advance denominated in a currency other than Sterling (or, in
the case of a Tranche B Advance or Term-out Advance
denominated in a currency other than Sterling, the second
Business Day before the first day of each applicable Interest
Period),
or such other day as the Agent, after consultation with Vodafone and
the Lenders, may designate as market practice in the relevant interbank
market for leading banks to give quotations in the relevant currency
for delivery on the relevant Drawdown Date (or on the first day of the
relevant Interest Period).
"REFERENCE BANKS"
means, subject to Clause 26.6 (Reference Banks), the principal London
offices of National Westminster Bank Plc, Citibank, N.A., Deutsche Bank
AG London and HSBC Investment Bank plc.
"REGULATIONS D, T, U AND X"
means, respectively, regulations D, T, U and X of the Board of
Governors of the Federal Reserve System of the United States (or any
successor).
"RELEVANT TAX"
means a tax imposed or levied by or in (or by any political
sub-division or taxing authority of any of the following):
(a) the UK;
(b) (until AirTouch ceases to be a Borrower in accordance with
Clause 26.5 (Novation of AirTouch's obligations)), the United
States; or
(c) any jurisdiction in or through which any payment under the
Finance Documents is made.
"REPORTABLE EVENT"
means a reportable event as defined in Section 4043 of ERISA and the
regulations issued under such section with respect to a Plan,
excluding, however, such events as to which the PBGC by regulation
waived the requirement of Section 4043(a) of ERISA that it be notified
within 30 days of the occurrence of such event, provided, however, that
a failure to meet the minimum funding standard of Section 412 of the
U.S. Code and of Section 302 of ERISA shall be a Reportable Event
regardless of the issuance of any such waiver of the notice requirement
in accordance with either Section 4043(a) of ERISA or Section 412(d) of
the U.S. Code.
"REQUEST"
means a request made by a Borrower to utilise a Facility, substantially
in the form of Schedule 4 (or in such other form as may be agreed by
the Agent and the Borrowers' Agent).
"REQUESTED AMOUNT"
means the amount requested in a Request.
"RESERVE ASSET COSTS"
means:
(a) in relation to any Advance for any period, Mandatory Cost (to
the extent notified by any Lender in accordance with Clause
8.2(c) (Interest rate for all Advances) as applicable to that
Advance);
(b) in relation to any Advance denominated in U.S. Dollars to
AirTouch made available by a United States incorporated Lender
or a United States branch of a non-United States incorporated
Lender, the cost, if any, notified by that Lender to the Agent
as the cost to it of complying with Regulation D attributable
to such Advance; and
(c) in relation to any Advance for any period, the cost, if any,
notified by any Lender to the Agent as the cost to it of
complying with the reserve asset and other regulatory
requirements of the European Central Bank in relation to that
Advance or any class of loans of which that Advance forms
part,
but no Lender is entitled to receive an amount under more than one of
the above paragraphs in respect of the same Advance for the same period
unless there is a change in, or introduction of, any relevant law or
regulation after the Signing Date.
"RESTRICTED GROUP"
means Vodafone, AirTouch and any Subsidiary of AirTouch and/or
Vodafone:
(a) whose principal operations or assets are located in a Core
Jurisdiction; and/or
(b) whose revenues are primarily generated by operations licensed
by telecommunications authorities in Core Jurisdictions,
but excludes any Subsidiary whose principal business is satellite
telecommunications. "CORE JURISDICTIONS" are member states of the
European Union as at 31st December, 1998 (being Austria, Belgium,
Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg,
Netherlands, Portugal, Spain, Sweden and the UK), Japan, Xxxxxx Xxxxxx,
Xxxxxxxxx, Xxx Xxxxxxx, Xxxxxx and Switzerland.
"ROLLOVER ADVANCE"
means any Tranche A Advance made during the Tranche A Availability
Period or any Tranche C Advance which in either case is drawn down to
refinance in whole or in part any outstanding Tranche A Advance or
Tranche C Advance where, after making and applying the proceeds of that
Advance, no Lender will have an aggregate principal amount outstanding
and owed to it under Tranche A or, as the case may be, Tranche C which
is greater than
the aggregate amount owed to it under that Tranche immediately prior to
that Advance being made.
"S&P"
means Standard & Poor's Corporation.
"SECURITY INTEREST"
means any mortgage, charge, assignment by way of security, pledge, lien
or other security interest securing any obligation of any person.
"SIGNING DATE"
means the date of this Agreement.
"SINGLE EMPLOYER PLAN"
means a Plan which is maintained by any Obligor or any member of the
Controlled Group for employees of Vodafone or any member of the
Controlled Group.
"SUBSIDIARY"
means:
(a) a subsidiary within the meaning of Section 736 of the
Companies Xxx 0000, as amended by Section 144 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 (as inserted by Section 21 of the Companies Act
1989).
"SWINGLINE ADVANCE"
means an advance made to a Borrower by the Swingline Lenders under the
Swingline Facility.
"SWINGLINE AFFILIATE"
means, in relation to a Lender, any Swingline Lender that is an
Affiliate of that Lender and which is notified to the Agent and the
U.S. Swingline Agent by that Lender in writing to be its Swingline
Affiliate.
"SWINGLINE COMMITMENT"
means in respect of a Swingline Lender, the amount in U.S. Dollars set
opposite its name in Part II of Schedule 1 to the extent not
transferred, cancelled or reduced under or in accordance with this
Agreement.
"SWINGLINE FACILITY"
means the committed U.S. Dollar swingline facility, forming part of
Tranche C, referred to in Clause 2.1(d) (Facilities).
"SWINGLINE LENDER"
means, subject to Clause 26.2 (Transfers by Lenders), a Lender listed
in Part II of Schedule 1.
"SWINGLINE RATE"
means, on any day, the higher of:
(a) the Prime Rate; and
(b) the aggregate of the Federal Funds Rate and 0.50 per cent. per
annum,
on that day.
"SWINGLINE TOTAL COMMITMENTS"
means the aggregate for the time being of the Swingline Commitments,
being U.S.$750,000,000 at the date of this Agreement.
"TAX ON OVERALL NET INCOME"
in relation to a Finance Party, means any tax on the overall net
income, profits or gains of that Finance Party or any of its Holding
Companies (or the overall net income, profits or gains of a division or
branch of that Finance Party or any of its Holding Companies).
"TERM"
means the period selected by a Borrower in a Request for which the
relevant Tranche A Advance (except a Term-out Advance), Tranche C
Advance or Swingline Advance is to be outstanding.
"TERM-OUT ADVANCES"
means the Tranche A Advances, if any, drawn under Clause 6.1(b)
(Repayment of Tranche A Advances).
"TOTAL COMMITMENTS"
means the aggregate of the Tranche A Total Commitments, Tranche B Total
Commitments and Tranche C Total Commitments (including the Swingline
Total Commitments, but without double counting) from time to time.
"TRANCHE A ADVANCE"
means an advance made to a Borrower under Tranche A of the Facilities.
"TRANCHE A AVAILABILITY PERIOD"
means the period from the Signing Date up to and including 15th April,
2000 (being the date which is one year less one day after the Signing
Date).
"TRANCHE A COMMITMENT"
means, in respect of a Lender, the amount in U.S. Dollars set opposite
the name of that Lender in Column 1 of Part I of Schedule 1 to the
extent not transferred, cancelled or reduced under or in accordance
with this Agreement.
"TRANCHE A TERM DATE"
means the last day of the Tranche A Availability Period or, if that day
is not a Business Day, the preceding Business Day.
"TRANCHE A TERM-OUT OPTION"
means the option available to the Borrowers to draw Term-out Advances
under Tranche A pursuant to Clause 6.1(b) (Repayment of Tranche A
Advances).
"TRANCHE A TOTAL COMMITMENTS"
means the aggregate for the time being of the Tranche A Commitments,
being U.S.$4,000,000,000 at the date of this Agreement.
"TRANCHE B ADVANCE"
means an advance made to a Borrower under Tranche B of the Facilities.
"TRANCHE B COMMITMENT"
means, in respect of a Lender, the amount in U.S. Dollars set opposite
the name of that Lender in Column 2 of Part I of Schedule 1 to the
extent not transferred, cancelled or reduced under or in accordance
with this Agreement.
"TRANCHE B COMMITMENT PERIOD"
means the period from and including the Signing Date to and including
15th April, 2000 (being the date which is one year less one day after
the Signing Date).
"TRANCHE B TERM DATE"
means:
(a) the last day of the Tranche B Commitment Period; or
(b) if an extension notice has been given by the Borrowers' Agent
under Clause 6.2(b) (Repayment of Tranche B Advances), the
date specified in such notice for repayment of the Tranche B
Advances,
or, in either case, if that day is not a Business Day, the preceding
Business Day.
"TRANCHE B TOTAL COMMITMENTS"
means the aggregate for the time being of the Tranche B Commitments,
being U.S.$3,000,000,000 at the date of this Agreement.
"TRANCHE C ADVANCE"
means an advance made to a Borrower under Tranche C of the Facilities.
"TRANCHE C AVAILABILITY PERIOD"
means the period from and including the Signing Date to the Final
Maturity Date.
"TRANCHE C COMMITMENT"
means, in respect of a Lender, the amount in U.S. Dollars set opposite
the name of that Lender in Column 3 of Part I of Schedule 1 to the
extent not transferred, cancelled or reduced under or in accordance
with this Agreement.
"TRANCHE C TOTAL COMMITMENTS"
means the aggregate for the time being of the Tranche C Commitments,
being U.S.$3,500,000,000 at the date of this Agreement (up to
U.S.$750,000,000 of which is available under the Swingline Facility).
"TREATY"
means the Treaty Establishing the European Community being the Treaty
of Rome of 25th March, 1957, as amended by the Single Xxxxxxxx Xxx 0000
and the Maastricht Treaty (which was signed at Maastricht on 7th
February, 1992 and came into force on 1st November, 1993), as amended
from time to time.
"TREATY COUNTRY"
means each state described as a participating Member State in any EMU
legislation, whether in the first wave or subsequently.
"UK" or "UNITED KINGDOM"
means the United Kingdom of Great Britain and Northern Ireland.
"UNITED STATES"
means the United States of America.
"U.S. CODE"
means the United States Internal Revenue Code of 1986.
"VODAFONE"
means Vodafone Group Plc (Registered number 1833679).
1.2 CONSTRUCTION
(a) In this Agreement, unless the contrary intention appears, a reference
to:
(i) "ASSETS" of any person includes all or any part of that
person's business, operations, undertaking, property, assets,
revenues (including any right to receive revenues) and
uncalled capital;
an "AUTHORISATION" includes an authorisation, consent,
approval, resolution, licence, exemption, filing, registration
and notarisation;
"BARCLAYS CAPITAL" means Barclays Capital, the investment
banking division of Barclays Bank PLC;
a "FINANCE LEASE" has the meaning given to it in SSAP 21 as in
effect at the Signing Date;
"INDEBTEDNESS" is a reference to any obligation for the
payment or repayment of money, whether as principal or surety
and whether present or future, actual or contingent;
"ING BARINGS" means ING Bank N.V.;
a "MONTH" is a reference to a period starting on one day in a
calendar month and ending on the numerically corresponding day
in the next calendar month, except that, if there is no
numerically corresponding day in the month in which that
period ends, that period shall end on the last Business Day in
that month;
a "REGULATION" includes any regulation, rule, official
directive, request or guideline (in each case, whether or not
having the force of law, but if not having the force of law,
is generally complied with by the persons to whom it is
addressed) of any
governmental or supranational body, agency, department or
regulatory, self-regulatory authority or organisation; and
a reference to the currency of a country is to the lawful
currency of that country for the time being, "(POUND)" and
"STERLING" is a reference to the lawful currency of the United
Kingdom for the time being and "U.S.$" and "U.S. DOLLARS" is a
reference to the lawful currency of the United States for the
time being;
(ii) a provision of a law is a reference to that provision
as amended or re-enacted;
(iii) a Clause or a Schedule is a reference to a clause of
or a schedule to this Agreement;
(iv) a person includes its successors, transferees and
assigns;
(v) a Finance Document or another document is a reference
to that Finance Document or that other document as
novated or, with the approval of the Borrowers'
Agent, amended or supplemented; and
(vi) a time of day is a reference to London time.
(b) Where an amount is to be applied to "REDUCE THE FACILITIES"
then, with effect on or before the date the Facilities are to
be reduced,
Commitments must be cancelled by that amount and,
to the extent the outstanding amount of Advances under the
relevant Commitments would otherwise exceed the Commitments as
so reduced, Advances must be permanently repaid or prepaid.
(c) Unless the contrary intention appears, a term used in any
other Finance Document or in any notice given under or in
connection with any Finance Document has the same meaning in
that Finance Document or notice as in this Agreement.
(d) The index to and the headings in this Agreement are for
convenience only and are to be ignored in construing this
Agreement.
(e) Greenwich NatWest Limited, in its capacity as an Arranger, is
a Party as agent for National Westminster Bank Plc. All
references to Greenwich NatWest Limited as an Arranger include
National Westminster Bank Plc unless the context otherwise
requires. This paragraph does not affect the rights or
obligations of National Westminster Bank Plc under this
Agreement.
2. THE FACILITIES
2.1 FACILITIES
The Lenders grant to the Borrowers the following facilities:
(a) a committed multicurrency revolving 364 day facility, with an
option to draw Term-out Advances, to be designated as TRANCHE
A, under which the Lenders will, when requested by a Borrower,
make cash advances in U.S. Dollars or Optional Currencies to
that Borrower on a revolving basis during the Tranche A
Availability Period;
(b) a committed multicurrency 364 day term loan facility (with one
year extension option as provided in Clause 6.2(b) (Repayment
of Tranche B Advances)), to be designated as TRANCHE B, under
which the Lenders will, when requested by a Borrower, make
cash advances in U.S. Dollars or Optional Currencies to that
Borrower during the Tranche B Commitment Period;
(c) a committed multicurrency revolving credit facility, to be
designated as TRANCHE C, under which the Lenders will, when
requested by a Borrower, make cash advances in U.S. Dollars or
Optional Currencies to that Borrower on a revolving basis
during the Tranche C Availability Period; and
(d) a committed U.S. Dollar swingline advance facility (which is a
sub-division of Tranche C) under which the Swingline Lenders
will, when requested by a Borrower, make to that Borrower
Swingline Advances during the Tranche C Availability Period,
in all cases subject to the terms of this Agreement.
2.2 OVERALL FACILITY LIMITS
(a) The aggregate Original Dollar Amount of all outstanding Advances under:
(i) Tranche A, shall not at any time exceed the Tranche A Total
Commitments at that time;
(ii) Tranche B, shall not at any time exceed the Tranche B Total
Commitments at that time;
(iii) Tranche C and the Swingline Facility, shall not at any time
exceed the Tranche C Total Commitments, at that time;
(iv) the Swingline Facility, shall not at any time exceed the
Swingline Total Commitments at that time; and
(v) all the Facilities, shall not at any time exceed the Total
Commitments.
(b) The aggregate Original Dollar Amount of:
(i) the participations of a Lender in Tranche A Advances, shall
not at any time exceed that Lender's Tranche A Commitment at
that time;
(ii) the participations of a Lender in Tranche B Advances, shall
not at any time exceed that Lender's Tranche B Commitment at
that time;
(iii) the participations of a Lender in Tranche C Advances plus that
Lender's and, if applicable, that Lender's Swingline
Affiliate's (if any), participations in outstanding Swingline
Advances, shall not at any time exceed that Lender's Tranche C
Commitment at that time; and
(iv) the participations of a Swingline Lender in Swingline Advances
shall not at any time exceed that Swingline Lender's Swingline
Commitment at that time.
(c) If, in respect of any Tranche C Advance, the operation of Clause 5.5
(Amount of each Lender's participation in an Advance) would otherwise
have caused a Lender (the "AFFECTED LENDER") to breach sub-paragraph
(b)(iii) above then:
(i) each affected Lender will participate in the relevant Tranche
C Advance only to the extent that its participation in that
Advance (when aggregated with its and, if applicable, that
Lender's Swingline Affiliate's (if any), participations in
other outstanding Tranche C Advances and Swingline Advances)
will not exceed its Tranche C Commitment; and
(ii) each other non-affected Lender's participation in that Advance
will be recalculated in accordance with such Clause 5.5, but,
for the purpose of the recalculation, the affected Lenders'
Tranche C Commitments will be deducted from the Tranche C
Total Commitments and the amount of the affected Lenders'
participations in that Advance (if any) will be deducted from
the requested amount of the Advance.
2.3 NUMBER OF REQUESTS AND ADVANCES
(a) Unless the Agent agrees otherwise, no more than one Request (other than
Requests for Swingline Advances only) may be delivered on any one day
but that Request may specify any number and type of Advances from
Tranche A, Tranche B, Tranche C, the Swingline Facility or all of them.
(b) Unless the Agent agrees otherwise, no more than 30 Advances (not
including Swingline Advances) may be outstanding at any one time.
2.4 PRIMARY SYNDICATION PERIOD
(a) Subject to paragraph (b) below, but otherwise notwithstanding any
provision of this Agreement, no Borrower will deliver a Request or
Interest Period selection notice during the Primary Syndication Period
specifying a Term or an Interest Period other than up to five Business
Days for Swingline Advances or, in any other case, 7, 14, or 21 days or
one month (unless all the Lenders agree otherwise).
(b) The Agent may (after consultation with the Borrowers' Agent and the
Arrangers) specify a separate date for each Tranche during the Primary
Syndication Period for each of:
(i) completion of sub-underwriting; and
(ii) completion of general syndication,
and no Interest Period or Term may be selected under (a) above for any
Advance in that Tranche which would overrun either of the dates
specified for that Tranche. The Borrowers' Agent and the Agent may
agree to Interest Periods or Terms of such duration as may be
appropriate to comply with this paragraph (b).
2.5 NATURE OF RIGHTS AND OBLIGATIONS
(a) The obligations of a Finance Party and each Obligor under the Finance
Documents are several. Failure of a Finance Party or an Obligor to
carry out those obligations does not relieve any other Party of its
obligations under the Finance Documents. No Finance Party or Obligor is
responsible for the obligations of any other Finance Party or Obligor
under the Finance Documents save and to the extent that the relevant
obligations are guaranteed by another Obligor.
(b) The rights of a Finance Party under the Finance Documents are divided
rights. A Finance Party may, except as otherwise stated in the Finance
Documents, separately enforce those rights.
2.6 BORROWERS' AGENT
Each Obligor which is or becomes a Subsidiary of Vodafone:
(a) irrevocably authorises and instructs the Borrowers' Agent to
give and receive as agent on its behalf all notices (including
Requests) and sign all documents in connection with the
Finance Documents on its behalf (including but not limited to
amendments and variations and execution of any new Finance
Documents) and take such other action as may be necessary or
desirable under or in connection with the Finance Documents;
and
(b) confirms that it will be bound by any action taken by the
Borrowers' Agent under or in connection with the Finance
Documents.
2.7 ACTIONS OF BORROWERS' AGENT
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 Borrowers'
Agent;
(b) the Borrowers' Agent 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 Borrowers' Agent to inform any
Obligor of receipt by it of any notification under this
Agreement.
3. PURPOSE
3.1 BY TRANCHE
Each Advance will be applied:
(a) in the case of Tranche A, in or towards financing in
connection with the Merger:
(i) the payment of cash to shareholders of AirTouch; and
(ii) the costs and expenses of the Merger,
and to refinance borrowings under the Swingline Facility and
to back up other short term debt facilities or financing
arrangements;
(b) in the case of Tranche B, in or towards financing in
connection with the Merger:
(i) the payment of cash to shareholders of AirTouch; and
(ii) the costs and expenses of the Merger; and
(c) in the case of Tranche C, in or towards providing support for
the Group's continuing commercial paper programmes, core
liquidity needs of the Group, for general corporate purposes
and refinancing existing Vodafone and AirTouch debt (provided
that a Swingline Advance may not be applied in or towards
refinancing another Swingline Advance).
3.2 NO MONITORING
Without affecting the obligations of any Borrower in any way, no
Finance Party is bound to monitor or verify the application of the
proceeds of any Advance.
4. CONDITIONS PRECEDENT
4.1 DOCUMENTARY CONDITIONS PRECEDENT
The obligations of each Finance Party to any Borrower under this
Agreement are subject to the condition precedent that the Agent has
notified Vodafone and the Lenders that it has received all of the
documents set out in Part I of Schedule 2 in the agreed form or such
other form and substance satisfactory to the Agent. The Agent will give
such notice of receipt within two Business Days after receiving the
relevant documents (other than in respect of those specified in
paragraph 4(d) of Schedule 2, Part I which will be given as soon as
practicable after receipt) and finding them in form and substance
satisfactory to it.
4.2 CONDITIONS TO FIRST DRAWDOWN
Subject to Clause 4.4 (Certain Funds Period), the obligations of each
Lender to participate in the first Advance are subject to the further
conditions precedent that on the date of the Request for that first
Advance and on the Drawdown Date for that first Advance:
(a) the representations and warranties in Clause 15
(Representations and Warranties) (other than Clauses 15.11
(Information) and 15.14 (Year 2000)) are correct and will be
correct immediately after the Advance is made (and the
representations and warranties in Clauses 15.11 (Information)
and 15.14 (Year 2000) were correct on the Signing Date) in
each case in all material respects; and
(b) no Default has occurred and is continuing or would result from
the making of the Advance.
4.3 CONDITIONS TO FURTHER DRAWDOWNS AND ROLLOVERS
Subject to Clause 4.4 (Certain Funds Period), the obligations of each
Lender to participate in any subsequent Advance (other than a Rollover
Advance) or to make any amount available under Clause 8.8(b)(ii) (Same
Optional Currency) are subject to the further conditions precedent that
on the date of the Request for the Advance (if applicable) and on the
date on which the relevant amount is to be drawn down:
(a) the representations and warranties in Clause 15
(Representations and Warranties) (other than Clauses 15.11
(Information) and 15.14 (Year 2000)) are correct and will be
correct immediately after the relevant Advance or amount is
drawn down (and the representations and warranties in Clauses
15.11 (Information) and 15.14 (Year 2000) were correct on the
Signing Date) in each case in all material respects; and
(b) no Default has occurred and is continuing or would result from
drawdown of the relevant Advance or amount.
4.4 CERTAIN FUNDS PERIOD
In order to provide certainty of funding for closing of the Merger the
following provisions will be suspended for a period starting on the
date Vodafone gives notice to the Agent that such period is to begin
and ending on the earlier of (a) two months after the date the notice
is given, and (b) five Business Days after the Merger Date:
(i) Clause 15.7 (No default);
(ii) Clause 15.10 (Financial condition);
(iii) Clause 18.5 (Cross default);
(iv) Clause 18.7 (Insolvency process) and Clause 18.10 (Similar
proceedings) in respect of anything having a substantially
similar effect to Clause 18.7, to the extent that either such
provision applies to a Principal Subsidiary outside the United
States or the United Kingdom;
(v) Clause 18.8 (Enforcement proceedings); and
(vi) Clause 18.14 (Litigation),
and references to "Events of Default", "Default" and repetition of
warranties shall be construed accordingly.
5. ADVANCES
5.1 RECEIPT OF REQUESTS
(a) A Borrower may borrow Advances under Tranche A, Tranche B or Tranche C
(other than Swingline Advances) if the Agent receives, not later than
5.00 p.m. on the third Business Day before the proposed Drawdown Date,
or, in the case of an Advance in Sterling, not later than 5.00 p.m. on
the Business Day before the proposed Drawdown Date, a duly completed
Request, copied, in the case of a Request for a Tranche C Advance, to
the U.S. Swingline Agent.
(b) A Borrower may borrow Swingline Advances if the U.S. Swingline Agent
receives, not later than noon (New York City time) on the proposed
Drawdown Date, a duly completed Request, copied to the Agent.
5.2 COMPLETION OF REQUESTS FOR TRANCHE A AND TRANCHE C ADVANCES
A Request for a Tranche A and/or Tranche C Advance (other than
Swingline Advances) will not be regarded as having been duly completed
unless:
(a) the Drawdown Date is a Business Day falling during the Tranche
A Availability Period (in respect of a Tranche A Advance) or
Tranche C Availability Period (in respect of a Tranche C
Advance);
(b) only one currency is specified for each separate Advance and
the Requested Amount for each separate Advance is in a minimum
amount:
(i) if in U.S. Dollars, of U.S.$25,000,000;
(ii) if in Sterling, of (pound)20,000,000; or
(iii) in euros, of (euro)25,000,000,
or, in any such case:
(1) if less, is in an amount equal to the unutilised
portion of the Tranche A Total Commitments or (as the
case may be) the Tranche C Total Commitments; or
(2) such other amount as the Borrowers' Agent and the
Agent may agree;
(c) only one Term or, in the case of Term-out Advances, Interest
Period for each separate Advance is specified which:
(i) does not overrun the Tranche A Term Date (in respect
of a Tranche A Advance (other than a Term-out
Advance)) or the Final Maturity Date (in respect of a
Tranche C Advance); and
(ii) subject to Clause 2.4 (Primary Syndication Period),
is a period of 7 days, one month, two, three or six
months (or such other period not exceeding six months
as the Borrowers' Agent and the Agent may agree for
the purposes of such Advance);
(d) the payment instructions comply with Clause 9.1 (Place of
Payment); and
(e) in the case of a Request for a Term-out Advance, the Maturity
Date for that Advance is specified which cannot be later than
the second Anniversary.
5.3 COMPLETION OF REQUESTS FOR SWINGLINE ADVANCES
A Request for a Swingline Advance will not be regarded as having been
duly completed unless:
(a) the Drawdown Date is a New York Business Day falling before
the Final Maturity Date;
(b) it is specified that the Swingline Advance is to be made in
U.S. Dollars under the Swingline Facility;
(c) the Requested Amount is a minimum of U.S.$20,000,000 or such
other amount as the U.S. Swingline Agent and the relevant
Borrower may agree;
(d) only one Term is specified, which:
(i) does not overrun the Final Maturity Date; and
(ii) is a period not exceeding five Business Days; and
(e) the payment instructions comply with Clause 9.1 (Place of
Payment).
5.4 COMPLETION OF REQUESTS FOR TRANCHE B ADVANCES
A Request for a Tranche B Advance will not be regarded as having been
duly completed unless:
(a) the Drawdown Date is a Business Day during the Tranche B
Commitment Period;
(b) only one currency is specified for each separate Advance and
the Requested Amount for each separate Advance is in a minimum
amount:
(i) if in U.S. Dollars, of U.S.$100,000,000; or
(ii) if in Sterling, of (pound)50,000,000; or
(iii) if in euros, of (euro)100,000,000,
or, in any such case:
(1) if less, is in an amount equal to the unutilised
portion of the Tranche B Total Commitments; or
(2) such other amount as the Borrowers' Agent and the
Agent may agree;
(c) only one Interest Period for each separate Advance is
specified which:
(i) does not overrun the Tranche B Term Date; and
(ii) (subject to Clause 2.4 (Primary Syndication Period))
is a period of 7 days, one month, two, three or six
months (or, in any case, such other period not
exceeding six months as the Borrowers' Agent and the
Agent may agree for the purposes of such Advance);
and
(d) the payment instructions comply with Clause 9.1 (Place of
Payment).
5.5 AMOUNT OF EACH LENDER'S PARTICIPATION IN AN ADVANCE
The amount of a Lender's participation in an Advance will be the
proportion of the Requested Amount which:
(a) in the case of a Tranche A Advance, its Tranche A Commitment
bears to the Tranche A Total Commitments;
(b) in the case of a Tranche B Advance, its Tranche B Commitment
bears to the Tranche B Total Commitments;
(c) in the case of a Tranche C Advance, its Tranche C Commitment
bears to the Tranche C Total Commitments; and
(d) in the case of a Swingline Advance, its Swingline Commitment
bears to the Swingline Total Commitments,
in each case on the date of receipt of the relevant Request, adjusted
in the case of paragraph (c) (if necessary) to reflect the operation of
Clause 2.2(c) (Overall facility limits).
5.6 NOTIFICATION OF THE LENDERS
The Agent (or, in the case of Swingline Advances, the U.S. Swingline
Agent) shall promptly notify each Lender (or, as the case may be,
Swingline Lender) of the details of the requested Advance and the
amount of its participation in such Advance.
5.7 PAYMENT OF PROCEEDS
Subject to the terms of this Agreement, each Lender (or, as the case
may be, Swingline Lender) shall make its participation in an Advance
available to the Agent (or, in the case of a participation in a
Swingline Advance, the U.S. Swingline Agent) for the Borrower concerned
for value on the relevant Drawdown Date.
6. REPAYMENT
6.1 REPAYMENT OF TRANCHE A ADVANCES
(a) Each Borrower shall repay each Tranche A Advance made to it in full on
its Maturity Date to the Agent for the Lenders, but since Tranche A is
available on a revolving basis during the Tranche A Availability Period
amounts repaid may be reborrowed subject to the terms of this
Agreement.
(b) The Borrowers' Agent may on one occasion only, prior to the Tranche A
Term Date, by delivery of a duly completed Request to the Agent under
and in accordance with Clause 5 (Advances) (who shall send a copy to
the Lenders), elect to draw Advance(s) under Tranche A (each a
"TERM-OUT ADVANCE") each with the same Maturity Date (being a date
after the Tranche A Term Date, but no later than the second
Anniversary). No Term-out Advance, once repaid or prepaid, may be
reborrowed.
(c) No Tranche A Advance, other than a Term-out Advance, may be outstanding
after the Tranche A Term Date. No Term-out Advance may be outstanding
after the second Anniversary.
6.2 REPAYMENT OF TRANCHE B ADVANCES
(a) Each Borrower shall repay each Tranche B Advance made to it in full on
the Tranche B Term Date.
(b) The Borrowers' Agent may, not later than three Business Days' prior to
the last day of the Tranche B Commitment Period, send an election
notice to the Agent (who shall send a copy of the same to the Lenders)
electing to extend the maturity of the Tranche B Advances to a date
specified in the election notice (which may not be later than the
second Anniversary). On the date of receipt of that notice by the Agent
the Tranche B Term Date (but not the Tranche B Commitment Period) will
be extended to the date specified.
(c) No Tranche B Advance may be outstanding after the Tranche B Commitment
Period unless a valid election is made under (b) above in which case no
Tranche B Advance may be outstanding after the date specified in the
election notice.
6.3 REPAYMENT OF TRANCHE C ADVANCES
Each Borrower shall repay each Tranche C Advance made to it in full on
its Maturity Date to the Agent for the relevant Lenders, but since
Tranche C is available on a revolving basis amounts repaid may be
reborrowed subject to the terms of this Agreement and, in particular,
to Clause 7.1 (Automatic Cancellation of the Tranche A and Tranche C
Total Commitments). No Tranche C Advance may be outstanding after the
Final Maturity Date.
6.4 REPAYMENT OF SWINGLINE ADVANCES
(a) Each Borrower shall repay each Swingline Advance made to it on its
Maturity Date to the U.S. Swingline Agent for the Swingline Lenders. No
Swingline Advance may be outstanding after the Final Maturity Date.
(b) Each Swingline Advance shall be repaid on its Maturity Date in
accordance with paragraph (a) above. In the event that a Swingline
Advance is not so repaid each Lender will within four Business Days of
a demand to that effect from the U.S. Swingline Agent pay to the U.S.
Swingline Agent on behalf of the Swingline Lenders (which shall be
deemed to be a drawing of that Bank's Tranche C Commitment) an amount
equal to its Agreed Percentage of the principal of such Swingline
Advance and accrued interest (including default interest) thereon to
the date of actual payment by such Lender (provided that no Lender
shall be obliged to exceed its Tranche C Commitment as a result of any
such payment). The relevant Borrower shall forthwith reimburse the
Lenders (through the Agent) in full for each payment made by the
Lenders under this paragraph (b). Each amount the relevant Borrower is
required to reimburse to the Lenders under this paragraph (b) shall be
deemed to be an overdue amount (as defined in Clause 8.4(a) (Default
interest)) which fell due for payment by the relevant Borrower on the
day on which the payment by the Lenders giving rise to the
reimbursement obligation was made and shall accrue default interest
under Clause 8.4 (Default interest) accordingly.
7. PREPAYMENT AND CANCELLATION
7.1 AUTOMATIC CANCELLATION OF THE TRANCHE A AND TRANCHE C TOTAL COMMITMENTS
(a) The Tranche A Commitment of each Lender (less the aggregate Original
Dollar Amount of that Lender's participations in Term-out Advances)
shall be automatically cancelled at the close of business in New York
on the last day of the Tranche A Availability Period.
(b) The Tranche C Commitment of each Lender (including the Swingline
Commitments of the Swingline Lenders) shall be automatically cancelled
at the close of business in New York on the Final Maturity Date.
7.2 AUTOMATIC CANCELLATION OF THE TRANCHE B TOTAL COMMITMENTS
The undrawn Tranche B Commitment of each Lender shall be automatically
cancelled on the last day of the Tranche B Commitment Period.
7.3 VOLUNTARY CANCELLATION
(a) The Borrowers' Agent may by giving not less than five Business Days'
prior written notice to the Agent, cancel the unutilised portion of the
Tranche A Total Commitments and/or Tranche B Total Commitments and/or
Tranche C Total Commitments in whole or in part (but, if in part, in an
aggregate minimum amount of U.S.$100,000,000). Any cancellation in part
shall be applied against the Tranche A Commitment, Tranche B Commitment
or, as the case may be, Tranche C Commitment of each Lender pro rata.
(b) Whenever part of the Tranche C Total Commitments is cancelled, the
Swingline Commitments shall not be cancelled unless (i) the amount of
the Swingline Total Commitments would exceed the Tranche C Total
Commitments after such cancellation or (ii) the Swingline Commitment of
any Swingline Lender would exceed its Tranche C Commitment after such
cancellation. In any such case, the Swingline Total Commitments shall,
at the same time as the cancellation of the Tranche C Total Commitments
takes effect, be cancelled by such amount as is necessary to ensure
that after the relevant cancellation of the Tranche C Total Commitments
the Swingline Total Commitments do not exceed the Tranche C Total
Commitments and the Swingline Commitment of each Swingline Lender does
not exceed its Tranche C Commitment.
7.4 VOLUNTARY PREPAYMENT
(a) Any Borrower may by giving not less than five Business Days' prior
written notice to the Agent, prepay the whole or any part of the
Advances made to it under Tranches A, B or C (but if in part in an
aggregate minimum Original Dollar Amount, taking all prepayments made
by all the Borrowers on the same day together, of U.S.$100,000,000).
(b) Any voluntary prepayment made under paragraph (a) above will:
(i) be applied against Tranche A, Tranche B or Tranche C in such
proportions as may be specified by the Borrowers' Agent in the
notice of prepayment
or, if not specified, in the order specified in Clause 7.6(b)
(Mandatory prepayment from Asset Disposals and Bond Issues);
and
(ii) be applied against all the Advances in the relevant Tranche(s)
pro rata (or against such Advances in the relevant Tranche(s)
as the Borrowers' Agent may designate in the notice of
prepayment).
7.5 MANDATORY PREPAYMENT BY BORROWERS
(a) If the Merger Date has not occurred by the day five Business Days after
the Drawdown Date of the first Advance, the Agent may, and on the
instructions of the Majority Lenders will, by notice to Vodafone:
(i) forthwith cancel the Total Commitments; and
(ii) request that each Borrower prepay all Advances made to it by a
specified date (being no earlier than 30 days after the date
the notice is given to Vodafone) together with all accrued
interest and other amounts accrued under this Agreement
whereupon each Borrower will prepay all the Advances, interest
and other amounts on or before that specified date.
(b) If, after the Merger Date, AirTouch ceases to be a Subsidiary of
Vodafone it will forthwith prepay all Advances made to it and thereupon
cease to be a Borrower.
7.6 MANDATORY PREPAYMENT FROM ASSET DISPOSALS AND BOND ISSUES
(a) Until the date on which the Total Commitments are less than or equal to
U.S.$10,000,000,000, Vodafone will notify the Agent not later than ten
Business Days after the date of receipt (a "RECEIPT DATE") by any
member of the Group of
(i) any Net Available Proceeds of an Asset Disposal; and
(ii) any Net Bond Proceeds,
specifying the amount (the "DOLLAR EQUIVALENT PROCEEDS") of the
relevant Net Available Proceeds or Net Bond Proceeds, as the case may
be, (notionally converted into U.S. Dollars at the Agent's Conversion
Rate on the date of that notice) whereupon such Dollar Equivalent
Proceeds shall be applied by the Borrowers to reduce the Facilities in
the manner set out in paragraph (b) below except to the extent that,
after such application, the Total Commitments would be less than
U.S.$10,000,000,000. For the purposes of this Clause 7.6, "AGENT'S
CONVERSION RATE" means the spot rate of exchange as determined by the
Agent for the purchase in the London foreign exchange market of U.S.
Dollars with the currency of the relevant Net Available Proceeds or Net
Bond Proceeds at or about 9.00 a.m. on the relevant calculation date.
(b) Any application to reduce the Facilities required under paragraph (a)
above will be made no later than the eleventh Business Day after the
Receipt Date by application of amounts which
together are equal to the Dollar Equivalent Proceeds (when notionally
converted into U.S. Dollars using the Agent's Conversion Rate on the
day the Dollar Equivalent Proceeds were calculated) to reduce the
Facilities in the following order:
(i) Tranche B;
(ii) Tranche A; and
(iii) Tranche C.
(c) The following Asset Disposals shall be excluded from the operation of
paragraphs (a)(i) and (b) above:
(i) any Asset Disposal where the Net Cash Proceeds from that Asset
Disposal and any related series of Asset Disposals are less
than U.S.$100,000,000 (or its equivalent in other currencies);
(ii) disposals of cash;
(iii) disposals of assets by way of enforcement of security by a
member of the Group;
(iv) payments of dividends;
(v) any creation of a Security Interest not prohibited by this
Agreement;
(vi) any disposal being or representing consideration for an
acquisition permitted by Clause 16.10 (Restriction on
acquisitions);
(vii) disposals of assets acquired as part of cash management or
treasury operations in the ordinary course of business;
(viii) payments under any guarantee not prohibited by this Agreement
in accordance with the terms of that guarantee or payments of
or in respect of any indebtedness not prohibited under this
Agreement;
(ix) consideration given to AirTouch shareholders in connection
with the Merger; and
(x) any Asset Disposal in the ordinary course of trading.
(d) In addition, up to U.S.$1,000,000,000 in aggregate of Net Available
Proceeds of Asset Disposals and/or Net Bond Proceeds shall be excluded
from the operation of paragraph (a) above, if, prior to the Receipt
Date in respect of such proceeds, Vodafone gives written notice to the
Agent specifying that it requires such proceeds in order to finance the
acquisition cost of any Acquisition or any licence (which cost was not
contemplated in the financial model in the Information Memorandum) and
specifying the purpose to which such proceeds are to be applied.
7.7 MANDATORY PREPAYMENT/CANCELLATION BY VODAFONE
If control of Vodafone passes to any person acting either individually
or in concert (a "CHANGE OF CONTROL"):
(a) Vodafone shall, promptly upon becoming aware thereof, notify
the Agent which shall inform the Lenders;
(b) any Lender may (through the Agent) then propose to Vodafone
the revised terms, if any, it requires to continue to
participate in the Facilities;
(c) if those revised terms have not been agreed with that Lender
(or that Lender is not prepared to continue on any terms)
within 30 days of the date of notification in paragraph (a)
above (or such longer period as that Lender may agree in
writing) then that Lender may by notice to the Agent (which
shall promptly inform Vodafone) cancel the whole (but not part
only) of such Lender's Commitments and following service of
such notice;
(i) such Lender's Commitments shall be cancelled on the
date of service of the notice or as specified in it;
and
(ii) all such Lender's outstanding Advances shall be
repaid or prepaid on the last day of the then current
Interest Period or Term applicable thereto, and no
amount may be outstanding to such Lender thereafter.
For the purposes of this Clause 7.7, "CONTROL" has the meaning given to
it in relation to a body corporate by Section 840 of the Income and
Corporation Taxes Xxx 0000.
7.8 RIGHT OF PREPAYMENT AND CANCELLATION
If any Borrower is required to pay or is notified by any Lender in
writing that it will be required to pay any amount to a Lender under
Clause 10 (Taxes) or Clause 12 (Increased Costs), or if circumstances
exist such that a Borrower will be required to pay any amount to a
Lender under Clause 10 (Taxes), the Borrowers' Agent may, whilst the
circumstances giving rise or which will give rise to the requirement
continue, serve a notice of prepayment and cancellation on that Lender
through the Agent. On the date falling five Business Days after the
date of service of the notice:
(a) each Borrower will prepay the participations of that Lender in
all outstanding Advances made to that Borrower; and
(b) the Lender's Tranche A Commitment, Tranche B Commitment and
Tranche C Commitment (including its Swingline Commitment (if
any)) shall be permanently cancelled on the date of service of
the notice.
7.9 MISCELLANEOUS PROVISIONS
(a) Any notice of prepayment and/or cancellation under this Agreement is
irrevocable. The Agent shall notify the Lenders promptly of receipt of
any such notice.
(b) All prepayments under this Agreement shall be made together with
accrued interest on the amount prepaid and any other amounts due under
this Agreement in respect of that prepayment (including, but not
limited to, any amounts payable under Clause 23.2(d) (other
indemnities) if not made on an Interest Date for the relevant Tranche B
Advance or Term-out Advance or on the Maturity Date of the relevant
Tranche A Advance, Tranche C Advance or Swingline Advance).
(c) No prepayment or cancellation is permitted except in accordance with
the express terms of this Agreement.
(d) Subject to Clause 8.7 (Change of currency), no amount repaid in respect
of Tranche B or a Term-out Advance may subsequently be re-borrowed.
Subject to the provisions of this Agreement, any amount prepaid in
respect of Tranche A during the Tranche A Availability Period or in
respect of Tranche C may be reborrowed. No amount of the Tranche A
Total Commitments, Tranche B Total Commitments or Tranche C Total
Commitments (including the Swingline Total Commitments) cancelled under
this Agreement may subsequently be reinstated.
8. INTEREST
8.1 SELECTION OF INTEREST PERIODS FOR TRANCHE B AND TERM-OUT ADVANCES
(a) The life of each Tranche B Advance and each Term-out Advance is divided
into successive periods (each an "INTEREST PERIOD") for the calculation
of interest. The first Interest Period of each Advance will be the
period selected in the Request for that Tranche B Advance or Term-out
Advance (as the case may be) and each subsequent Interest Period will
be the period selected by the relevant Borrower by notice to the Agent
received not later than 5.00 p.m. on the third Business Day (or, in the
case of an Advance to be denominated in Sterling for its subsequent
Interest Period, 5.00 p.m. one Business Day) before the end of the then
current Interest Period (being, subject to Clause 2.4 (Primary
Syndication Period), 7 days, one month, two, three or six months or in
any case such other period not exceeding six months as the Borrowers'
Agent and the Agent may agree from time to time). Each Interest Period
for a Tranche B Advance or Term-out Advance will commence on its
Drawdown Date or the expiry of its preceding Interest Period.
(b) Each such selection notice will specify in which currency the Tranche B
Advance or Term-out Advance is to be continued during its next Interest
Period. If no such selection notice is received by the time specified
in paragraph (a) above, the Tranche B Advance or Term-out Advance will
be continued in the same currency and the Interest Period concerned
will be one week during the Primary Syndication Period and one month
thereafter or, in the case of a Term-out Advance, the Interest Period
will be subject to Clause 6.1(c) (Repayment of Tranche A Advances) and,
in any case will be such shorter period as is required to ensure that
it does not overrun the second Anniversary.
8.2 INTEREST RATE FOR ALL ADVANCES
(a) The rate of interest on each Tranche A Advance (except a Term-
out Advance) and Tranche C Advance for its Term and for each Tranche B
Advance and Term-out Advance for each of its Interest Periods is the
rate per annum determined by the Agent to be the aggregate of:
(i) the applicable Margin;
(ii) LIBOR; and
(iii) Reserve Asset Costs.
(b) The rate of interest on each Swingline Advance for each day during its
Term is the rate per annum determined by the U.S. Swingline Agent to be
the Swingline Rate for that day plus any applicable Reserve Asset
Costs.
(c) In this Agreement:
(i) Reserve Asset Costs for an Advance for any Interest Period or
Term will be calculated only on that portion of that Advance
owed to Lenders who have notified the Agent that they incur
the relevant Reserve Asset Costs in relation to Advances;
(ii) a Lender will only be entitled to Reserve Asset Costs if it
has given a notification to the Agent as contemplated in sub
paragraph (i) above; and
(iii) any amounts payable pursuant to paragraph (b) or (c) of the
definition of Reserve Asset Costs shall be expressed as a
percentage rate per annum for the relevant Term or Interest
Period.
8.3 DUE DATES
Except as otherwise provided in this Agreement, accrued interest on
each Advance is payable by the relevant Borrower:
(a) in the case of a Tranche A Advance (other than a Term-out
Advance), a Tranche C Advance or a Swingline Advance, on its
Maturity Date; and
(b) in the case of a Tranche B Advance or Term-out Advance, on
each Interest Date applicable to that Tranche B Advance or
Term-out Advance,
and also, in the case of any Advance with an Interest Period or a Term
longer than six months, at six monthly intervals after its Drawdown
Date for so long as the Interest Period or Term is outstanding.
8.4 DEFAULT INTEREST
(a) If a Borrower fails to pay any amount payable by it under this
Agreement when due (an "OVERDUE AMOUNT"), it shall forthwith on demand
by the Agent or, as the case may be, the U.S. Swingline Agent pay
interest on the overdue amount from the due date up to the date of
actual payment, both before and after judgment, at a rate (the "DEFAULT
RATE") determined by the Agent or, as the case may be, the U.S.
Swingline Agent to be one per cent. per annum (the "DEFAULT MARGIN")
above the higher of:
(i) the rate on the overdue amount under Clause 8.2 (Interest rate
for all Advances) immediately before the due date (in the case
of principal); and
(ii) the rate which would have been payable if the overdue amount
had, during the period of non-payment, constituted a Tranche C
Advance at the Margin applicable to a new Tranche C Advance if
it had been drawn down at such time in the currency of the
overdue amount for such successive Interest Periods or Terms
of such duration as the Agent may determine (each a
"DESIGNATED TERM"),
except that during any grace period specified in Clause 18.2
(Non-payment) the Default Margin portion of the default rate will only
apply to overdue payments of principal.
(b) The default rate will be determined on each Business Day or the first
day of, or two Business Days before the first day of, the relevant
Designated Term, as appropriate.
(c) If the Agent or, as the case may be, the U.S. Swingline Agent
determines that deposits in the currency of the overdue amount are not
at the relevant time being made available by the Reference Banks to
leading banks in the London interbank market, the default rate will be
determined by reference to the cost of funds to the Agent or, as the
case may be, the U.S. Swingline Agent from whatever sources it selects,
acting reasonably at all times, after consultation with the Reference
Banks.
(d) Default interest will be compounded at the end of each Designated Term.
(e) The Agent shall notify the Borrowers' Agent of the duration of each
Designated Term.
8.5 NOTIFICATION OF RATES OF INTEREST
The Agent or, as the case may be, the U.S. Swingline Agent will
promptly notify each relevant Party of the determination of a rate of
interest under this Agreement.
8.6 MARGIN AND COMMITMENT FEE
(a) Subject to the following provisions of this Clause, the Margin will be
0.55 per cent. per annum in respect of Tranches A and C and 0.65 per
cent. per annum in respect of Tranche B.
(b) The Margin for all Advances in a Tranche will be adjusted in accordance
with paragraph (d) below to the percentage rate specified below the
reference to that Tranche in the table below and set opposite the long
term credit rating assigned by either Moody's or S&P at such time to
Vodafone.
----------------------------------------- --------------------------- ---------------------------------
Moody's or S&P Rating Tranches A and C Tranche B
(% p.a.) (% p.a.)
----------------------------------------- --------------------------- ---------------------------------
A2/A or higher 0.45 0.55
----------------------------------------- --------------------------- ---------------------------------
A3/A- 0.50 0.60
----------------------------------------- --------------------------- ---------------------------------
Baa1/BBB+ 0.55 0.65
----------------------------------------- --------------------------- ---------------------------------
Baa2/BBB or lower 0.70 0.80
----------------------------------------- --------------------------- ---------------------------------
(c) If at any time after a Margin has been determined in accordance with
paragraph (b), no long term credit rating is assigned to Vodafone by
either Moody's or S&P, the Margin for all Advances in a Tranche will be
the Margin for that Tranche shown in the table in paragraph (b) above
which applied immediately prior to the date Vodafone ceased to have a
long term credit rating assigned to it.
(d) Any adjustment to the Margin (whether upwards or downwards) in
accordance with paragraph (b) or (c) above or (g)(iv) below will only
apply to the Term of any Advance, or any Interest Period of an Advance,
which starts on or after:
(i) the date of publication of any relevant change to the long
term credit rating assigned to Vodafone; or
(ii) the date on which no long term credit rating is assigned to
Vodafone by either Moody's or S&P as provided in paragraph (c)
above; and/or
(iii) the date on which the requirements of sub-paragraph (g)(iv)
below are satisfied (or cease to be satisfied).
(e) The commitment fee referred to in Clause 20.1 (Commitment fee) shall be
on each day:
(i) (in respect of Tranche A and Tranche B) 0.125 per cent. per
annum; and
(ii) (in respect of Tranche C) 0.20 per cent. per annum until the
long term credit rating assigned to Vodafone (after the Merger
has completed or on the assumption that it will complete) has
been published by Moody's or S&P and thereafter, 40 per cent.
of the Margin which would be applicable to a Tranche C
Advance, if such Advance were drawn on such day.
(f) Promptly after becoming aware of the same, Vodafone shall inform the
Agent in writing if any change in the long term credit rating assigned
to Vodafone occurs or the circumstances contemplated by paragraph (c)
above or sub-paragraph (g)(iii) below arise.
(g) For the purpose of this Clause 8.6:
(i) the "LONG TERM CREDIT RATING ASSIGNED TO VODAFONE" means the
solicited long term credit rating of Vodafone, or an issue of
or guarantee by Vodafone, after the Merger has completed (or
assigned on the assumption that the Merger will complete)
where the rating is based primarily on the unsecured credit
risk of Vodafone in a manner comparable to the credit
structure of the Vodafone Group Plc(pound)250 million 7.5 per
cent. bonds due 2004 and does not include any issue where that
credit risk is enhanced or collateralised (except if such
credit risk is enhanced by an AirTouch guarantee and AirTouch
is then a Guarantor, in which case, if there is a difference
in the relevant long term credit ratings, the Margin will be
determined on the basis of the higher of such ratings);
(ii) if at any time there is a difference in the long term credit
rating assigned to Vodafone by each of Moody's and S&P (or
only one such agency assigns to Vodafone a long term credit
rating), the Margin will be determined on the basis of the
higher (or the only) such rating, unless any such rating is
Baa3 or BBB- or lower, in which case the highest Margins for
the relevant Tranche shown in the table in paragraph (b) above
shall apply;
(iii) if at any time the long term credit rating assigned to
Vodafone by either or both Moody's and S&P is placed on credit
watch with negative implications and there is then a
difference in the long term credit rating assigned to Vodafone
by each of Moody's and S&P, the Margin will be determined on
the basis of the lower of the two ratings (and, for the
purposes of sub-paragraph (d)(i) above, such long term credit
rating shall be deemed to have changed on the later of the
date of publication of the placing on credit watch and the
date on which there is first a difference in the long term
credit rating assigned to Vodafone by each of Moody's and
S&P);
(iv) if and for so long as AirTouch is an Additional Guarantor,
each of the percentage rates per annum specified in this
Clause 8.6 shall be reduced by 0.05 per cent. per annum.
8.7 CHANGE OF CURRENCY
(a) If a Tranche B Advance or Term-out Advance is to be continued during
its next Interest Period in a different currency (the "NEW CURRENCY")
from that in which it is currently denominated, the Tranche B Advance
or Term-out Advance shall be repaid by the relevant Borrower in full at
the end of its current Interest Period in the currency in which it is
then denominated and shall be forthwith re-advanced by the Lenders in
the new currency.
(b) If the new currency is U.S. Dollars, the amount of each Lender's
participation in that Tranche B Advance or Term-out Advance will be its
participation in the Original Dollar Amount of that Tranche B Advance
or Term-out Advance for that Interest Period.
(c) If the new currency is an Optional Currency, the amount of each
Lender's participation in that Tranche B Advance or Term-out Advance
will be determined by
converting into the new currency its participation in the Original
Dollar Amount of that Tranche B Advance or Term-out Advance on the
basis of the Agent's Spot Rate of Exchange three Business Days before
the commencement of that Interest Period.
8.8 SAME OPTIONAL CURRENCY
(a) If a Tranche B Advance or Term-out Advance is to be continued during
its next Interest Period in the same Optional Currency as that in which
it is denominated during its current Interest Period, there shall be
calculated the difference between the amount of the Tranche B Advance
or Term-out Advance (in that Optional Currency) for the current
Interest Period and for the next Interest Period. The amount of the
Tranche B Advance or Term-out Advance for the next Interest Period will
be determined by notionally converting into that Optional Currency the
Original Dollar Amount of the Tranche B Advance or Term-out Advance on
the basis of the Agent's Spot Rate of Exchange three Business Days
before the start of that Interest Period.
(b) At the end of the current Interest Period (but subject always to
paragraph (c) below):
(i) if the amount of the Tranche B Advance or Term-out Advance for
the next Interest Period is less than for the preceding
Interest Period, the relevant Borrower shall repay the
difference; or
(ii) if the amount of the Tranche B Advance or Term-out Advance for
the next Interest Period is greater than for the preceding
Interest Period, each Lender shall forthwith make available to
the Agent for the relevant Borrower its participation in the
difference.
(c) If the Agent's Spot Rate of Exchange for the next Interest Period shows
an appreciation or depreciation of the Optional Currency against U.S.
Dollars of less than ten per cent. when compared with the result
achieved by using the Original Exchange Rate, no amounts are payable in
respect of the difference. In this Clause 8.8 and in Clause 8.9
(Prepayments and repayments) "ORIGINAL EXCHANGE RATE" means the Agent's
Spot Rate of Exchange used for determining the amount of the Optional
Currency for the Interest Period which is the later of the following:
(i) the Interest Period during which the Tranche B Advance or
Term-out Advance was first denominated in that Optional
Currency if the Tranche B Advance or Term-out Advance has
since then remained denominated in that Optional Currency; and
(ii) the most recent Interest Period immediately prior to which a
difference was required to be paid under this Clause 8.8.
8.9 PREPAYMENTS AND REPAYMENTS
If a Tranche B Advance or Term-out Advance is to be repaid or prepaid
by reference to an Original Dollar Amount, the Optional Currency amount
to be repaid or prepaid in that Optional Currency shall be determined
by reference to the Original Exchange Rate applicable to the relevant
Advance.
8.10 NOTIFICATION
The Agent shall notify the Lenders and the Borrower of Optional
Currency amounts (and the applicable Agent's Spot Rate of Exchange) and
whether any payment is required to be made under Clause 8.8(b) (Same
Optional Currency) promptly after they are ascertained.
8.11 NON-BUSINESS DAYS
If an Interest Period or Term would otherwise end on a day which is not
a Business Day, that Interest Period or Term shall instead end on the
next Business Day in that calendar month (if there is one) or the
preceding Business Day (if there is not).
8.12 COINCIDENCE WITH REPAYMENT DATES
If an Interest Period for a Term-out Advance or Tranche B Advance would
otherwise overrun its Maturity Date or, as the case may be, the Tranche
B Term Date, it shall be shortened so that it ends on its Maturity Date
or, as the case may be the Tranche B Term Date.
8.13 OTHER ADJUSTMENTS
The Agent and a Borrower may enter into such other arrangements as they
may agree for the adjustment of Interest Periods and the consolidation
and/or splitting of Term-out Advances or Tranche B Advances made to
that Borrower.
9. PAYMENTS
9.1 PLACE OF PAYMENT
All payments by an Obligor or a Lender under this Agreement shall be
made to the Agent or (if the payment relates to the Swingline Facility)
the U.S. Swingline Agent to its account at such office or bank in the
principal financial centre of the country of the currency concerned
(or, in the case of euros, the financial centre of such of the Treaty
Countries or London) as it may notify to the Obligor or Lender for this
purpose.
9.2 FUNDS
Payments under this Agreement to the Agent or, as the case may be, the
U.S. Swingline Agent shall be made for value on the due date at such
times and in such funds as the Agent or, as the case may be, the U.S.
Swingline Agent may specify to the Party concerned as being customary
at the time for the settlement of transactions in the relevant currency
in the place for payment.
9.3 DISTRIBUTION
(a) Each payment received by the Agent or, as the case may be, the U.S.
Swingline Agent under this Agreement for another Party shall, subject
to paragraphs (b) and (c) below, be made available by the Agent or, as
the case may be, the U.S. Swingline Agent to that Party by payment (on
the date of value of receipt and in the currency and funds of receipt)
to its account with such bank in the principal financial centre of the
country of the relevant currency (or, in the case of euros, in the
principal financial centre of such of the Treaty
Countries or London) as it may notify to the Agent or, as the case may
be, the U.S. Swingline Agent for this purpose by not less than five
Business Days' prior notice.
(b) The Agent or, as the case may be, the U.S. Swingline Agent may apply
any amount received by it for an Obligor in or towards payment (on the
date and in the currency and funds of receipt) of any amount due from
an Obligor under this Agreement in the same currency on such date or in
or towards the purchase of any amount of any currency to be so applied.
(c) Where a sum is to be paid under this Agreement to the Agent or, as the
case may be, the U.S. Swingline Agent for the account of another Party,
the Agent or, as the case may be, the U.S. Swingline Agent is not
obliged to pay that sum to that Party until it has established that it
has actually received that sum. The Agent or, as the case may be, the
U.S. Swingline Agent may, however, assume that the sum has been paid to
it in accordance with this Agreement and, in reliance on that
assumption, make available to that Party a corresponding amount. If the
sum has not been made available but the Agent or, as the case may be,
the U.S. Swingline Agent has paid a corresponding amount to another
Party, that Party shall forthwith on demand refund the corresponding
amount to the Agent or, as the case may be, the U.S. Swingline Agent
together with interest on that amount from the date of payment to the
date of receipt, calculated at a rate reasonably determined by the
Agent or, as the case may be, the U.S. Swingline Agent to reflect its
cost of funds.
9.4 CURRENCY
(a) (i) A repayment or prepayment of an Advance is payable in the
currency in which the Advance is denominated.
(ii) Interest is payable in the currency in which the relevant
amount in respect of which it is payable is denominated.
(iii) Amounts payable in respect of costs, expenses, taxes and the
like are payable in the currency in which they are incurred.
(iv) Any other amount payable under this Agreement is, except as
otherwise provided in this Agreement, payable in U.S. Dollars.
(b) (i) Any Advance to be made in the currency of a Treaty Country
will be made in the euro unit (other than, if applicable, the
UK, which at the option of the relevant Borrower, and subject
to applicable law, may be made in Sterling); and
(ii) any amount payable by the Agent to the Lenders under this
Agreement in the currency of a Treaty Country will be paid in
the euro unit.
(c) If and to the extent that any EMU legislation provides that an amount
denominated either in the euro unit or in the national currency unit of
a given Treaty Country and payable within that Treaty Country by
crediting an account of the creditor can be paid by the debtor either
in the euro unit or in that national currency unit, each Party shall be
entitled to pay or repay that amount either in the euro unit or in the
national currency unit.
(d) If a change in any currency of a country occurs this Agreement will be
amended to the extent the Agent and Vodafone agree (such agreement not
to be unreasonably withheld) to be necessary to reflect the change in
currency and to put the Lenders and the Obligors in the same position,
as far as possible, that they would have been in if no change in
currency had occurred.
9.5 SET-OFF AND COUNTERCLAIM
All payments made by an Obligor under this Agreement shall be made
without set-off or counterclaim.
9.6 NON-BUSINESS DAYS
(a) If a payment under this Agreement is due on a day which is not a
Business Day, the due date for that payment shall instead be the next
Business Day in the same calendar month (if there is one) or the
preceding Business Day (if there is not).
(b) During any extension of the due date for payment of any principal under
this Agreement interest is payable on the principal at the rate payable
on the original due date.
9.7 PARTIAL PAYMENTS
(a) If the Agent or, as the case may be, the U.S. Swingline Agent receives
a payment insufficient to discharge all the amounts then due and
payable by an Obligor under this Agreement, the Agent or, as the case
may be, the U.S. Swingline Agent shall apply that payment towards the
obligations of the Obligors under this Agreement in the following
order:
(i) FIRST, in or towards payment pro rata of any unpaid costs,
fees and expenses of the Agent and the U.S. Swingline Agent
under this Agreement;
(ii) SECONDLY, in or towards payment pro rata of any accrued fees
due but unpaid under Clause 20 (Fees);
(iii) THIRDLY, in or towards payment pro rata of any interest due
but unpaid under this Agreement;
(iv) FOURTHLY, in or towards payment pro rata of any principal due
but unpaid under this Agreement; and
(v) FIFTHLY, in or towards payment pro rata of any other sum due
but unpaid under this Agreement.
(b) The Agent or, as the case may be, the U.S. Swingline Agent, shall, if
so directed by all the Lenders, vary the order set out in
sub-paragraphs (a)(ii) to (v) above. The Agent or, as the case may be,
the U.S. Swingline Agent, shall notify the Borrowers' Agent of any such
variation.
(c) Paragraphs (a) and (b) above shall override any appropriation made by
any Obligor.
10. TAXES
10.1 GROSS-UP
All payments by an Obligor to a Finance Party under the Finance
Documents shall be made free and clear of and without deduction for or
on account of any taxes, except to the extent that the Obligor is
required by law to make payment subject to any such taxes. Subject to
Clauses 10.4 (Qualifying Lenders) and 10.5 (U.S. Taxes), if any
Relevant Tax or amounts in respect of Relevant Tax are deducted or
withheld from any amounts payable or paid by an
Obligor, or paid or payable by the Agent or, as the case may be, the
U.S. Swingline Agent, to a Finance Party under the Finance Documents,
the Obligor shall pay such additional amounts as may be necessary to
ensure that the relevant Finance Party receives a net amount equal to
the full amount which it would have received had that Relevant Tax or
those amounts in respect of Relevant Tax not been so deducted or
withheld.
10.2 INDEMNITY
Without prejudice to the provisions of Clause 10.1 (Gross-up), but
subject to Clauses 10.4 (Qualifying Lenders) and 10.5 (U.S. Taxes), if
a Finance Party or the Agent (or, as the case may be the U.S. Swingline
Agent) on behalf of that Finance Party is required to make any payment
on account of any Relevant Tax on or in relation to any sum received or
receivable hereunder by such Finance Party or the Agent (or, as the
case may be, the U.S. Swingline Agent) on behalf of that Finance Party
(including a sum received or receivable under this Clause 10) or any
liability in respect of any such payment is incurred by such Finance
Party or the Agent (or, as the case may be, the U.S. Swingline Agent)
on behalf of that Finance Party (other than any Tax on Overall Net
Income) , the relevant Obligor shall, within five Business Days of
demand by the Agent (or, as the case may be, the U.S. Swingline Agent)
indemnify such Finance Party against such payment or liability,
together with any interest, penalties, reasonable costs and reasonable
expenses payable or incurred in connection therewith other than any
such interest, penalties, costs or expenses arising as a result of a
failure by a Finance Party to make payment of such tax when due.
10.3 TAX RECEIPTS
All taxes required by law to be deducted or withheld by an Obligor from
any amounts paid or payable under the Finance Documents shall be paid
by the relevant Obligor when due and the Obligor shall, within 15 days
of the payment being made, deliver to the Agent for the relevant Lender
evidence satisfactory to that Lender (including any relevant tax
receipts which have been received) that the payment has been duly
remitted to the appropriate authority.
10.4 QUALIFYING LENDERS
(a) If any Lender is a Party but is not a Qualifying Lender (other than as
a result of the introduction, suspension, withdrawal or cancellation
of, or change in, or change in the official interpretation,
administration or official application of, any law, regulation having
the force of law, tax treaty or any published practice or published
concession of the UK Inland Revenue or any other relevant taxing or
fiscal authority in any jurisdiction with which the relevant Lender has
a connection, occurring after the Signing Date or, if later, the date
on which that Lender becomes a Party), then no Obligor resident in the
UK for the purposes of UK taxation shall be liable to pay to that
Lender under Clause 10.1 (Gross-up) or Clause 10.2 (Indemnity) any
amount in respect of taxes levied or imposed by the UK or any taxing
authority of or in the UK in excess of the amount (if any) it would
have been obliged to pay if that Lender had been a Qualifying Lender.
(b) A Treaty Lender shall promptly and, in any event, within seven Business
Days after it becomes a Lender, deliver to its local revenue authority
for certification such UK Inland Revenue forms as may be required for
that Treaty Lender to claim that payment to it by any Obligor resident
in the UK under the Finance Documents shall be exempt from tax by the
UK. If there is any change in the procedure by which certification is
to be made or to be notified to the UK Inland Revenue, the Treaty
Lender's obligations shall be modified in such manner as the Treaty
Lender may reasonably determine so that such amended obligations shall,
as far as possible, have the same or equivalent effect as the original
obligations. No
Obligor resident in the UK shall be liable to pay any sums to any
Treaty Lender under Clause 10.1 (Gross-up) or Clause 10.2 (Indemnity):
(i) unless the Treaty Lender has complied with its obligations
under this Clause 10.4(b); or
(ii) in respect of any tax withheld or deducted in respect of any
payment of interest falling due more than three months after
the date on which the Treaty Lender becomes a Party (and
arising as a result of failure to secure complete exemption
from UK tax in respect of payments of interest), unless the
Treaty Lender demonstrates to the reasonable satisfaction of
Vodafone that it has taken all reasonable steps to secure such
exemption from the relevant tax authorities.
(c) Subject to (d) below, each Lender warrants to Vodafone, on each date
upon which it makes an Advance and on the due date for each payment of
interest to the Lender:
(i) that it is a Qualifying Lender, and
(ii) if it is a Treaty Lender, it has delivered (or will deliver
within the time limits specified herein) the forms described
in paragraph (b).
(d) If a Lender or, as the case may be, the Facility Office of a Lender is
aware that it is or will become unable to make the warranty set out in
sub-clause (c) of this Clause 10.4 it will promptly notify the Agent
which will notify Vodafone.
10.5 U.S. TAXES
(a) AirTouch shall not be required to pay any additional amount pursuant to
Clause 10.1 (Gross-up) or any amount pursuant to Clause 10.2
(Indemnity) in respect of United States taxes (including, without
limitation, federal, state, local or other income taxes), branch
profits or franchise taxes with respect to a sum payable by it pursuant
to this Agreement to a Lender if:
(i) on the date such Lender becomes a Party to this Agreement or
has designated a new Facility Office either:
(1) in the case of a Lender which is not a United States
person (as such term is defined in Section
7701(a)(30) of the U.S. Code), such Lender is not
entitled to submit a United States Internal Revenue
Service Form 1001 (relating to such Lender and
entitling it to a complete exemption from withholding
on interest to be received by it pursuant to this
Agreement) or a Form 4224 (relating to interest to be
received by such Lender pursuant to this Agreement)
(or any successor forms) with respect to interest
payable pursuant to this Agreement; or
(2) in the case of a Lender which is a United States
person (as such term is defined in Section
7701(a)(30) of the U.S. Code), Clause 10.1 (Gross-up)
or Clause 10.2 (Indemnity) would apply (other than as
a result of the introduction of, suspension,
withdrawal or cancellation of, or change in the
official interpretation, administration or official
application of, any law, regulation having the force
of law, tax treaty or any published practice or
published concession of the United States Internal
Revenue Service or any other relevant taxing or
fiscal authority in any jurisdiction with which the
relevant Lender has a connection, occurring after the
date the Lender
becomes a Party to this Agreement or has designated a
new Facility Office); or
(ii) such Lender has failed to provide AirTouch with the
appropriate form, certificate or other information with
respect to such sum payable that it was required to provide
pursuant to paragraph (b) or (c) below and is entitled to file
under applicable law; or
(iii) such Lender is subject to such tax by reason of any connection
between the jurisdiction imposing such tax and the Lender or
its Facility Office other than a connection arising solely
from this Agreement or any transaction contemplated hereby.
(b) If a Lender is not a United States person (as such term is defined in
Section 7701(a)(30) of the U.S. Code) it shall (if and to the extent
that it is entitled to do so under applicable law) submit, as soon as
reasonably practicable after it has become a Party to this Agreement or
designates a new Facility Office, in duplicate to AirTouch duly
completed and signed copies of either United States Internal Revenue
Service Form 1001 or applicable successor form (relating to such Lender
and entitling it to complete exemption from withholding on all amounts
(to which such withholding would otherwise apply) to be received by
such Lender, including fees, pursuant to this Agreement in connection
with any borrowing by AirTouch ) as a result of a tax treaty concluded
with the United States or United States Internal Revenue Service Form
4224 or applicable successor form (relating to all amounts (to which
such withholding would otherwise apply) to be received by such Lender,
including fees, pursuant to this Agreement in connection with any
borrowing by AirTouch). Thereafter, such Lender shall (if and to the
extent that it is entitled to do so under applicable law) submit to
AirTouch such additional duly completed and signed copies of one or the
other such forms (or such successor forms as shall be adopted from time
to time by the relevant United States taxation authorities) or any
additional information, in each case as may be required under then
current United States law or regulations to claim the inapplicability
of or exemption from United States withholding taxes on payments in
respect of all amounts (to which such withholding would otherwise
apply) to be received by such Lender, including fees, pursuant to this
Agreement in connection with any borrowing by AirTouch.
(c) If a Lender is a United States person (as such term is defined in
Section 7701(a)(30) of the U.S. Code) it shall, as soon as practicable
after it has become a Party to this Agreement or designates a new
Facility Office, and thereafter, on or before the date that any such
form expires or becomes obsolete or after the occurrence of any event
requiring a change in the most recent form or forms to be delivered,
submit in duplicate to AirTouch a certificate to the effect that it is
such a United States person and shall (if and to the extent that it is
entitled to do so under applicable law) submit any additional
information that may be necessary to avoid United States withholding
taxes on all payments, including fees, (to which such withholding would
otherwise apply) to be received pursuant to this Agreement in
connection with any borrowing by AirTouch.
(d) The provisions of this Clause 10.5 shall cease to have effect if
AirTouch ceases to be a Borrower in accordance with Clause 26.5
(Novation of AirTouch's obligations).
10.6 COLLECTING AGENTS RULES
Each Lender represents to the Agent that, in the case of a Lender which
is a Lender, on the Signing Date and, in the case of a Lender which
becomes a Lender after the date of this Agreement, on the date it
becomes a Lender, in relation to the Facilities, it is:
(a) either:
(i) not resident in the United Kingdom for United Kingdom
tax purposes; or
(ii) a bank as defined in section 840A of the Income and
Corporation Taxes Act 1988 and resident in the United
Kingdom; and
(b) beneficially entitled to the principal and interest payable by
the Agent to it under the Finance Documents,
(or, if it is not able to make those representations, will ensure that
it assigns, transfers or novates its rights in respect of each Advance
then made (or, if made later, when made) to an entity in respect of
which both representations are correct) and, if it is able to make
those representations on the Signing Date or the date it becomes a
Lender, shall forthwith notify the Agent if either representation
ceases to be correct.
10.7 REFUND OF TAX CREDITS
If any Obligor pays any additional amount to a Finance Party under this
Clause 10 (a "TAX PAYMENT") and that Finance Party obtains a refund of
a tax, or a credit against tax by reason of the Tax Payment (a "TAX
CREDIT") then that Finance Party shall reimburse that Obligor such
amount as can be determined to be the proportion of the Tax Credit as
will leave that Finance Party (after that reimbursement) in no better
or worse position than it would have been in if the Tax Payment had not
been paid. Nothing in this Clause 10 shall interfere with the right of
each Finance Party to arrange its affairs in whatever manner it thinks
fit and no Finance Party is obliged to disclose any information
regarding its tax affairs or computations to an Obligor which it
reasonably considers confidential.
11. MARKET DISRUPTION
11.1 MARKET DISTURBANCE
Notwithstanding anything to the contrary herein contained, if and each
time that prior to or on a Drawdown Date relative to an Advance to be
made (or the first day of any Interest Period in the case of an
outstanding Tranche B Advance or Term-out Advance):
(a) only one or no Reference Bank supplies a rate for the purposes
of determining LIBOR in accordance with paragraph (b) of such
definition; or
(b) the Agent is notified by Lenders whose participations in that
Advance would represent 50 per cent. or more of that Advance
that (i) deposits in the currency of that Advance may not in
the ordinary course of business be available to them in the
London Interbank Market for a period equal to the Interest
Period or Term concerned in amounts sufficient to fund their
participations in that Advance or (ii) LIBOR does not
adequately represent their cost of funds; or
(c) the Agent (after consultation with the Reference Banks) shall
have determined (which determination shall be conclusive and
binding upon all Parties) that by reason of circumstances
affecting the London Interbank Market generally, adequate and
fair means do not exist for ascertaining the LIBOR applicable
to such Advance during its Interest Period or Term,
the Agent shall promptly give written notice of such determination or
notification to Vodafone and to each of the Lenders.
11.2 ALTERNATIVE RATES
If the Agent gives a notice under Clause 11.1 (Market disturbance):
(a) the Borrowers' Agent and the Lenders whose participations in
the relevant Advance would represent 50 per cent or more of
that Advance may (through the Agent) agree that (in the case
of a Tranche A Advance (except a Term-out Advance) or Tranche
C Advance) that Advance shall not be borrowed; or
(b) in the absence of such agreement (and in any event in the case
of a Tranche B Advance or Term-out Advance):
(i) the Interest Period or Term of the relevant Advance
shall be one month;
(ii) the Advance shall be made in the currency requested
or, in the case of Clause 11.1(b)(i) (Market
disturbance), in U.S. Dollars (or, if the currency
requested for the relevant Advance is U.S. Dollars,
Sterling); and
(iii) during the Interest Period or Term of the relevant
Advance the rate of interest applicable to such
Advance shall be the applicable Margin plus
applicable Reserve Asset Costs plus the rate per
annum notified by each Lender concerned to the Agent
before the last day of such Interest Period or Term
to be that which expresses as a percentage rate per
annum the cost to such Lender of funding its
participation in such Advance from whatever sources
it may reasonably select.
12. INCREASED COSTS
12.1 INCREASED COSTS
(a) Subject to Clause 12.2 (Exceptions), Vodafone will forthwith on demand
by a Finance Party pay that Finance Party the amount of any increased
cost incurred by it or any of its Holding Companies as a result of any
change in or introduction of any law or regulation (including any
relating to reserve asset, special deposit, cash ratio, liquidity or
capital adequacy requirements or any other form of banking or monetary
control).
(b) Promptly following the service of any demand, Vodafone will pay to that
Finance Party such amount as that Finance Party certifies in the demand
(with sufficient details for the calculations to be verified) will in
its reasonable opinion compensate it for the applicable increased cost
and in relation to the period expressed to be covered by such demand.
(c) When calculating an increased cost, a Finance Party will only apply the
costs incurred in relation to the Facilities. Nothing contained in this
Clause 12.1 shall oblige the Finance Party to disclose any information
(other than information which is readily available in the public domain
or which is not in the reasonable opinion of the Finance Party
confidential) relating to the way in which it employs its capital or
arranges its internal financial affairs.
(d) In this Agreement "INCREASED COST" means:
(i) an additional cost incurred by a Finance Party or any of its
Holding Companies as a result of it performing, maintaining or
funding its obligations under, this Agreement; or
(ii) that portion of an additional cost incurred by a Finance Party
or any of its Holding Companies in making, funding or
maintaining all or any advances comprised in a class of
advances formed by or including its participations in the
Advances made or to be made under this Agreement as is
attributable to it making, funding or maintaining its
participations; or
(iii) a reduction in any amount payable to a Finance Party or the
effective return to a Finance Party under this Agreement or on
its capital (or the capital of any of its Holding Companies);
or
(iv) the amount of any payment made by a Finance Party, or the
amount of interest or other return foregone by a Finance
Party, calculated by reference to any amount received or
receivable by a Finance Party from any other Party under this
Agreement.
12.2 EXCEPTIONS
Clause 12.1 (Increased costs) does not apply to any increased cost:
(a) compensated for by the payment of the Reserve Asset Costs; or
(b) attributable to any tax or amounts in respect of tax; or
(c) attributable to the implementation by the applicable
authorities having jurisdiction over such Lender and/or its
Facility Office of the matters set out in the statement of the
Basle Committee on Banking Regulations and Supervisory
Practices dated July, 1988 and entitled "International
Convergence of Capital Measurement and Capital Standards", or
the directives of the European Council (as amended or
supplemented prior to the date of this Agreement) of 17th
April, 1989 on the own funds of credit institutions
(89/229/EEC) and of 18th December, 1989 on the solvency ratio
for credit institutions (89/647/EEC), in each case to the
extent and according to the timetable provided for therein
(unless the increased costs arise as a result of any change in
such terms or in relation to the implementation thereof in
respect of a Lender on or after the Signing Date); or
(d) occurring as a result of any negligence or default of a Lender
or its Holding Company including but not limited to a breach
by that Lender or Holding Company of any fiscal, monetary or
capital adequacy limit imposed on it by any law or regulation;
or
(e) to the extent that the increased cost was incurred in respect
of any day more than six months before the first date on which
it was reasonably practicable to notify Vodafone thereof
(except in the case of any retrospective change).
13. ILLEGALITY AND MITIGATION
13.1 ILLEGALITY
If it becomes unlawful in any jurisdiction for a Lender to give effect
to any of its obligations as contemplated by this Agreement or to fund
or maintain its participation in any Advance, then the Lender may
notify the Borrowers' Agent through the Agent accordingly and
thereupon, but only to the extent necessary to remove the illegality:
(a) each Borrower shall, upon request from that Lender within the
period allowed or if no period is allowed, forthwith, repay
any participation of that Lender in the Advances made to it
together with all other amounts payable by it to that Lender
under this Agreement; and
(b) the Lender's Tranche A Commitment, Tranche B Commitment and
Tranche C Commitment shall be cancelled immediately.
13.2 MITIGATION
Notwithstanding the provisions of Clauses 10 (Taxes), 12 (Increased
Costs) and 13.1 (Illegality), if in relation to a Finance Party
circumstances arise which would result in:
(a) any deduction, withholding or payment of the nature referred
to in Clause 10 (Taxes); or
(b) any increased cost of the nature referred to in Clause 12
(Increased Costs); or
(c) a notification pursuant to Clause 13.1 (Illegality),
then without in any way limiting, reducing or otherwise qualifying the
rights of such Finance Party or the Agent, such Finance Party shall
promptly upon becoming aware of the same notify the Agent thereof
(whereupon the Agent shall promptly notify the Borrowers' Agent) and
such Finance Party shall use reasonable endeavours to transfer its
participation in the Facility and its rights hereunder and under the
Finance Documents to another financial institution or Facility Office
not affected by the circumstances having the results set out in (a),
(b) or (c) above and shall otherwise take such reasonable steps as may
be open to it to mitigate the effects of such circumstances provided
that such Finance Party shall not be under any obligation to take any
such action if, in its opinion, to do so would or would be likely to
have a material adverse effect upon its business, operations or
financial condition or would involve it in any unlawful activity or any
activity that is contrary to its policies or any request, guidance or
directive of any competent authority (whether or not having the force
of law) or (unless indemnified to its satisfaction) would involve it in
any significant expense or tax disadvantage.
14. GUARANTEE
14.1 GUARANTEE
Each Guarantor jointly and severally, irrevocably and unconditionally:
(a) as principal obligor, guarantees to each Finance Party that if
and whenever:
(i) an amount is due and payable by a Borrower under or
in connection with any Finance Document; and
(ii) demand for payment of that amount has been made by
the Agent on that Borrower,
that Guarantor will forthwith on demand by the Agent pay that
amount as if that Guarantor instead of that Borrower were
expressed to be the principal obligor; and
(b) indemnifies each Finance Party on demand against any loss or
liability suffered by it if any obligation guaranteed by any
Guarantor is or becomes unenforceable, invalid or illegal (the
amount of that loss being the amount expressed to be payable
by the relevant Borrower in respect of the relevant sum).
14.2 CONTINUING GUARANTEE
This guarantee is a continuing guarantee and will extend to the
ultimate balance of all sums payable by the Borrowers under the Finance
Documents, regardless of any intermediate payment or discharge in part.
14.3 REINSTATEMENT
(a) Where any discharge (whether in respect of the obligations of any
Borrower or any security for those obligations or otherwise) is made in
whole or in part or any arrangement is made on the faith of any
payment, security or other disposition which is avoided or must be
restored on insolvency, liquidation or otherwise without limitation,
the liability of the Guarantors under this Clause 14 shall continue as
if the discharge or arrangement had not occurred (but only to the
extent that such payment, security or other disposition is avoided or
restored).
(b) Each Finance Party may concede or compromise any claim that any
payment, security or other disposition is liable to avoidance or
restoration.
14.4 WAIVER OF DEFENCES
The obligations of the Guarantors under this Clause 14 will not be
affected by any act, omission, matter or thing which, but for this
provision, would reduce, release or prejudice any of its obligations
under this Clause 14 or prejudice or diminish those obligations in
whole or in part, including (whether or not known to it or any Finance
Party):
(a) any time or waiver granted to, or composition with, any
Borrower or other person;
(b) the taking, variation, compromise, exchange, renewal or
release of, or refusal or neglect to perfect, take up or
enforce, any rights against, or security over assets of, any
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;
(c) any incapacity or lack of powers, authority or legal
personality of or dissolution or change in the members or
status of a Borrower or any other person;
(d) any variation (however fundamental) or replacement of a
Finance Document so that references to that Finance Document
in this Clause 14 shall include each variation or replacement;
(e) any unenforceability, illegality or invalidity of any
obligation of any person under any Finance Document, to the
intent that the Guarantors' obligations under this Clause 14
shall remain in full force and its guarantee be construed
accordingly, as if there were no unenforceability, illegality
or invalidity; and
(f) any postponement, discharge, reduction, non-provability or
other similar circumstance affecting any obligation of any
Borrower under a Finance Document resulting from any
insolvency, liquidation or dissolution proceedings or from any
law, regulation or order so that each such obligation shall,
for the purposes of the Guarantors' obligations under this
Clause 14, be construed as if there were no such circumstance.
14.5 IMMEDIATE RECOURSE
Except as provided in Clause 14.1(a)(ii), 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 14.
14.6 APPROPRIATIONS
Until all amounts which may be or become payable by the Borrowers under
or in connection with the Finance Documents have been irrevocably paid
in full, each Finance Party (or any trustee or agent on its behalf)
may:
(a) refrain from applying or enforcing any other moneys, security
or rights held or received by that Finance Party (or any
trustee or agent on its behalf) in respect of those amounts,
or apply and enforce the same in such manner and order as it
sees fit (whether against those amounts or otherwise) and no
Guarantor shall be entitled to the benefit of the same; and
(b) hold in a suspense account (bearing interest at a commercial
rate) any moneys received from any Guarantor or on account of
that Guarantor's liability under this Clause 14, with any
interest earned being credited to that account.
14.7 NON-COMPETITION
Until all amounts which may be or become payable by the Borrowers under
or in connection with the Finance Documents have been paid in full, no
Guarantor shall, after a claim has been made or by virtue of any
payment or performance by it under this Clause 14:
(a) be subrogated to any rights, security or moneys held, received
or receivable by any Finance Party (or any trustee or agent on
its behalf) or be entitled to any right of contribution or
indemnity in respect of any payment made or moneys received on
account of that Guarantor's liability under this Clause 14;
(b) claim, rank, prove or vote as a creditor of any Borrower or
its estate in competition with any Finance Party (or any
trustee or agent on its behalf); or
(c) receive, claim or have the benefit of any payment,
distribution or security from or on account of any Borrower,
or exercise any right of set-off as against any Borrower.
Each Guarantor shall hold in trust for and forthwith pay or transfer to
the Agent for the Finance Parties any payment or distribution or
benefit of security received by it contrary to this Clause 14.7.
14.8 ADDITIONAL SECURITY
This guarantee is in addition to and is not in any way prejudiced by
any other security now or hereafter held by any Finance Party.
14.9 REMOVAL OF GUARANTORS
Any Guarantor which is not a Borrower (other than Vodafone), may, at
the request of the Borrowers' Agent and if no Default is continuing,
cease to be a Guarantor by entering into a supplemental agreement to
this Agreement at the cost of Vodafone in such form as the Agent may
reasonably require which shall discharge that Guarantor's obligations
as a Guarantor under this Agreement.
14.10 LIMITATION ON GUARANTEE OF U.S. GUARANTORS
Notwithstanding any other provision of this Clause 14, the obligations
of each Guarantor incorporated in the United States (a "U.S.
GUARANTOR") under this Clause 14 shall be limited to a maximum
aggregate amount equal to the largest amount that would not render its
obligations hereunder subject to avoidance as a fraudulent transfer or
conveyance under Section 548 of Title 11 of the United States
Bankruptcy Code or any applicable provisions of comparable state law
(collectively, the "FRAUDULENT TRANSFER LAWS"), in each case after
giving effect to all other liabilities of such U.S. Guarantor,
contingent or otherwise, that are relevant under the Fraudulent
Transfer Laws (specifically excluding, however, any liabilities of such
U.S. Guarantor in respect of intercompany indebtedness to the Borrowers
or Affiliates of the Borrowers to the extent that such indebtedness
would be discharged in an amount equal to the amount paid by such U.S.
Guarantor hereunder) and after giving effect as assets to the value (as
determined under the applicable provisions of the Fraudulent Transfer
Laws) of any rights to subrogation, contribution, reimbursement,
indemnity or similar rights of such U.S. Guarantor pursuant to (a)
applicable law or (b) any agreement providing for an equitable
allocation among such U.S. Guarantor and other Affiliates of the
Borrowers of obligations arising under guarantees by such parties.
15. REPRESENTATIONS AND WARRANTIES
15.1 REPRESENTATIONS AND WARRANTIES
Each Obligor makes the representations and warranties set out in this
Clause 15 (Representations and Warranties) to each Finance Party (in
respect of itself and its Subsidiaries only).
15.2 STATUS
It is a duly incorporated and validly existing corporation under the
laws of the jurisdiction of its incorporation.
15.3 POWERS AND AUTHORITY
It has (or in relation to the borrowing limit in the Articles of
Association of Vodafone, will on each Drawdown Date have) the power to:
(a) enter into and comply with, all obligations expressed on its
part under the Finance Documents; and
(b) (in the case of a Borrower) to borrow under this Agreement;
and
(c) (in the case of a Guarantor) to give the guarantee in
Clause 14 (Guarantee),
and has (or in relation to the borrowing limit in the Articles of
Association of Vodafone, will on each Drawdown Date have) taken all
necessary actions to authorise the execution, delivery and performance
of the Finance Documents (other than, in the case of AirTouch, a
Guarantor Accession Agreement prior to the execution thereof pursuant
to Clause 26.4 (Additional Guarantors)).
15.4 NON-VIOLATION
The execution, delivery and performance of the Finance Documents will
not violate:
(a) any provisions of any existing law or regulation or statute
applicable to it; or
(b) to any material extent, any provisions of any mortgage,
contract or other undertaking to which it or any of its
Subsidiaries is a party or which is binding upon it or any of
its Subsidiaries (except, prior to the first Drawdown Date, in
relation to the borrowing limit in the Articles of Association
of Vodafone).
15.5 BORROWING LIMITS
In relation to Vodafone with effect from the first Drawdown Date,
borrowings under this Agreement up to and including the maximum amount
available under this Agreement will not cause any limit (except to the
extent the limit has been waived) on borrowings or, as the case may be,
on the giving of guarantees (whether imposed in its Articles of
Association or otherwise), or on the powers of its board of directors,
applicable to it to be exceeded.
15.6 AUTHORISATIONS
All necessary consents or authorisations of any governmental authority
or agency required by it in connection with the execution, validity,
performance or enforceability of the Finance Documents have been
obtained and are validly existing.
15.7 NO DEFAULT
Neither it nor any of its Subsidiaries which is a member of the
Restricted Group is in default under any law or agreement by which it
is bound the consequences of which would be reasonably likely to have a
material adverse effect on the ability of the Obligors (taken as a
whole) to perform their payment obligations under the Finance
Documents.
15.8 AIRTOUCH
(a) AirTouch either (i) is not an investment company required to be
registered under the United States Investment Company Act of 1940, as
amended, or (ii) is exempt from the registration provisions of that Act
pursuant to an exemption under that Act.
(b) None of the transactions contemplated in this Agreement (including,
without limitation, the borrowings hereunder and the use of the
proceeds thereof) will violate or result in a violation of Section 7 of
the Securities Exchange Act of 1934 (or any regulations issued pursuant
thereto, including, without limitation, Regulations D, T, U and X).
15.9 ACCOUNTS
(a) The audited consolidated financial statements of Vodafone most recently
delivered to the Agent (which, at the date of this Agreement are the
Original Group Accounts):
(i) give a true and fair view of the consolidated financial
position of the Group as at the date to which they were drawn
up; and
(ii) have been prepared in accordance with generally accepted
accounting principles in the UK, consistently applied.
(b) The audited consolidated financial statements of AirTouch in respect of
its most recent financial year (if any such audited statements have
been published) (which, at the date of this Agreement are the audited
consolidated financial statements of AirTouch for the year ended 31st
December, 1998 (the "AIRTOUCH 1998 ACCOUNTS")):
(i) fairly represent the consolidated financial position of
AirTouch, as at the date to which they were drawn up; and
(ii) have been prepared in accordance with generally accepted
accounting principles in the United States, consistently
applied.
15.10 FINANCIAL CONDITION
(a) (Prior to the date on which the first financial statements of the Group
consolidated to include the AirTouch Group are delivered to the Agent
under Clause 16.2(a)(i) or (b) (Financial Information) only) there has
been no change in the financial condition:
(i) of the Group (taken as a whole), which has occurred since the
date to which the financial statements most recently delivered
to the Agent under Clause 16.2(a)(i) or (b) (Financial
Information) were made up (which, as at the date of this
Agreement, are the 30th September, 1998 interim consolidated
financial statements of Vodafone); or
(ii) of the AirTouch Group (taken as a whole) which has occurred
since the date to which the AirTouch 1998 Accounts were made
up,
which, in either case, would have a material adverse effect on the
ability of the Obligors (taken as a whole, and on the assumption that
the Merger has completed) to perform their payment obligations under
the Finance Documents.
(b) (On and after the date on which the first financial statements of the
Group consolidated to include the AirTouch Group are delivered to the
Agent under Clause 16.2(a)(i) or (b) (Financial Information) only)
there has been no change in the financial condition of the Group (taken
as a whole) which has occurred since the date to which the financial
statements most recently delivered to the Agent under Clause 16.2(a)(i)
or (b) (Financial Information) were made up which would have a material
adverse effect on the ability of the Obligors (taken as a whole) to
perform their payment obligations under the Finance Documents.
15.11 INFORMATION
(a) The factual information in relation to the Group contained in Sections
I, II, IV (Table 1 and paragraph 1 (Refinance Existing Indebtedness)
thereof) and VII of the Information Memorandum is to the best of
Vodafone's knowledge and belief true and accurate in all material
respects as at 1st March, 1999 and did not omit as at 1st March, 1999
any information which made misleading in any material respect any
information in the Information Memorandum.
(b) All projections in Section IX of the Information Memorandum were
prepared by Vodafone based on assumptions considered by Vodafone to be
reasonable as at 1st March, 1999 and all such assumptions were provided
by Vodafone in good faith and after due enquiry.
15.12 NO EVENT OF DEFAULT
No Event of Default has occurred and is continuing in relation to it
and its Subsidiaries.
15.13 ERISA
(a) Each member of the Controlled Group has fulfilled its obligations under
the minimum funding standards of ERISA and the U.S. Code with respect
to each Plan maintained by such member or any member of the Controlled
Group.
(b) Each Obligor is in compliance with the applicable provisions of ERISA,
the U.S. Code and any other applicable United States Federal or State
law with respect to each Plan maintained by such Obligor except where
such non-fulfilment or non compliance could reasonably be expected not
to have a material adverse effect on the ability of the Obligors (taken
as a whole) to perform their payment obligations under the Finance
Documents.
(c) No Reportable Event has occurred with respect to any Plan maintained by
an Obligor or any member of the Controlled Group and no steps have been
taken to reorganise or terminate any Single Employer Plan or by that
Obligor to effect a complete or partial withdrawal from any
Multiemployer Plan except where such non compliance, Reportable Event,
reorganisation, termination or withdrawal could not reasonably be
expected to have a material adverse effect on the ability of the
Obligors (taken as a whole) to perform their payment obligations under
the Finance Documents.
(d) No member of the Controlled Group has:
(i) sought a waiver of the minimum funding standard under Section
412 of the U.S. Code in respect of any Plan; or
(ii) failed to make any contribution or payment to any Single
Employer Plan or Multiemployer Plan, or made any amendment to
any Plan, and no other event, transaction or condition has
occurred which has resulted or could result in the imposition
of a lien or the posting of a bond or other security under
ERISA or the U.S. Code; or
(iii) incurred any material, actual liability under Title I or Title
IV of ERISA other than a liability to the PBGC for premiums
under Section 4007 of ERISA.
15.14 YEAR 2000
It and its Subsidiaries have taken steps that are reasonable
to ensure that the occurrence of the year 2000 will not
materially and adversely affect its and its Subsidiaries'
information and business systems.
15.15 ENVIRONMENTAL
It and its Subsidiaries are each in compliance with all
applicable environmental laws where non-compliance is
reasonably likely to have a material adverse effect on the
ability of the Obligors (taken as a whole) to perform their
payment obligations under the Finance Documents.
15.16 TIMES FOR MAKING REPRESENTATIONS AND WARRANTIES
(a) The representations and warranties set out in this Clause 15
(Representations and warranties) are made by each Obligor on
the Signing Date and, subject to Clause 4.4 (Certain Funds
Period), (except for Clauses 15.11 (Information) and 15.14
(Year 2000)) are deemed to be made again by each Obligor on
the date of each Request, on each Drawdown Date and on the
first day of each Interest Period with reference to the facts
and circumstances then existing.
(b) The representation and warranty by Vodafone in clause 15.11
(Information) will be given on the Signing Date by reference
to the facts and circumstances existing on 1st March, 1999.
(c) The representation and warranty by Vodafone in Clause 15.11
(Information) will be deemed to be made again (but only in
relation to any updates to the Information Memorandum prepared
by Vodafone for the purposes of syndication):
(i) on the date notified to it by the Agent as the date
on which the sub-underwriters become Parties to this
Agreement as Lenders; and
(ii) on the last day of the Primary Syndication Period,
in each case by reference to the facts and circumstances
existing on the date the updates were prepared by Vodafone.
16. UNDERTAKINGS
16.1 DURATION
The undertakings in this Clause 16 will remain in force from
the Signing Date for so long as any amount is or may be
outstanding under this Agreement or any Commitment is in
force.
16.2 FINANCIAL INFORMATION
Each Obligor shall supply to the Agent in sufficient copies
for all the Lenders:
(a) as soon as the same are publicly available (and in
any event within 180 days of the end of each of its
financial years):
(i) in the case of Vodafone, the audited
consolidated financial statements of the
Group for that financial year; and
(ii) in the case of each other Obligor, (if
published) its audited statutory accounts
for that financial year, consolidated if it
has Subsidiaries and consolidated accounts
are prepared and published;
(b) in the case of Vodafone, as soon as the same are
publicly available (and in any event within 90 days
of the end of the first half-year of each of its
financial years) the interim unaudited financial
statements of the Group for that half-year;
(c) in the case of Vodafone, together with any accounts
specified in paragraph (a)(i) above:
(i) a certificate signed by its auditors
establishing compliance with Clause 17
(Financial Covenants) as at the date to
which those accounts were drawn up; and
(ii) a certificate signed by a director of
Vodafone establishing (in reasonable
detail):
(1) compliance with Clause 16.8
(Priority borrowing) as at the date
to which those accounts were drawn
up, and identifying the Principal
Subsidiaries, on the basis of those
accounts; and
(2) only if the Total Commitments are
more than U.S.$10,000,000,000, the
aggregate amount of the Net Cash
Proceeds of all Asset Disposals
falling within Clause 7.6(a)
(Mandatory Prepayment from Asset
Disposals and Bond Issues) for the
relevant financial year; and
(d) in the case of Vodafone, together with any accounts
specified in paragraph (b) above, a certificate
signed by a director of Vodafone establishing (in
reasonable detail) compliance with Clauses 16.8
(Priority borrowing) and 17 (Financial Covenants) as
at the date to which those accounts were drawn up,
and identifying the Principal Subsidiaries, on the
basis of those accounts.
16.3 INFORMATION - MISCELLANEOUS
Vodafone shall supply to the Agent:
(a) all documents despatched by it to its shareholders
(or any class of them) or its creditors generally (or
any class of them) in relation to it or its
Subsidiaries at the same time as they are despatched;
and
(b) as soon as reasonably practicable, such further
publicly available information in the possession or
control of any member of the Group regarding the
business, financial or corporate affairs of the
Group, as the Agent may reasonably request,
in sufficient copies for all the Lenders, if the Agent so
requests.
16.4 NOTIFICATION OF DEFAULT
Vodafone shall notify the Agent of any Default (and the steps,
if any, being taken to remedy it) promptly upon becoming aware
of it.
16.5 AUTHORISATIONS
(a) Each Obligor shall promptly:
(i) obtain, maintain and comply with the terms of; and
(ii) if requested, supply certified copies to the Agent
of,
any authorisation required under any law or regulation to
enable it to perform its obligations under, or for the
validity or enforceability of, any Finance Document.
(b) Vodafone will notify the Agent as soon as practicable after a
Certificate of Merger is filed with the Secretary of State of
the State of Delaware in accordance with Section 1.2.2 of the
Merger Agreement, specifying in such notice the effective date
of the Merger.
16.6 PARI PASSU RANKING
Each Obligor will procure that its obligations under the
Finance Documents do and will rank at least pari passu with
all its other present and future unsecured and unsubordinated
obligations (save for those obligations mandatorily preferred
by applicable law).
16.7 NEGATIVE PLEDGE
No Obligor will, and each Obligor will procure that none of
its Subsidiaries which is a member of the Restricted Group
will, create or permit to subsist any Security Interest on or
over any of its assets except for any Permitted Security
Interest.
16.8 PRIORITY BORROWING
Each Obligor will procure that none of its Subsidiaries (which
is a member of the Restricted Group and which is not a
Guarantor) will create, assume, incur, guarantee, permit to
subsist or otherwise be liable in respect of any Financial
Indebtedness owed to persons outside the Restricted Group
except for:
(a) Financial Indebtedness existing in any Subsidiary
(except AirTouch or any of its Subsidiaries as at the
Signing Date) which becomes a member of the
Restricted Group after the Signing Date provided:
(i) any such Financial Indebtedness is in
existence before that Subsidiary becomes a
member of the Restricted Group and is not
created in contemplation of that Subsidiary
becoming a member of the Restricted Group;
and
(ii) to the extent that the aggregate principal
amount of such Financial Indebtedness
outstanding upon that Subsidiary becoming a
member of the Restricted Group is thereafter
exceeded (measured in the same currency),
the excess amount of such Financial
Indebtedness shall not fall within this
paragraph (a); or
(b) Financial Indebtedness under finance or structured
tax lease arrangements to the extent matched as part
of those arrangements by deposits of cash or cash
equivalent investments (including, but not limited to
securities issued by G7 governments) which are
treated by the creditor concerned as available to
reduce its net exposure; or
(c) Financial Indebtedness which is created with the
prior written consent of the Majority Lenders; or
(d) Financial Indebtedness of members of the Restricted
Group to the extent matched by cash balances held by
members of the Restricted Group which are treated as
available for netting by the creditors of that
Financial Indebtedness under cash management or
netting arrangements in the ordinary course of
business; or
(e) Financial Indebtedness under any finance lease
entered into in respect of assets which are acquired
after the Signing Date; or
(f) Financial Indebtedness under or in connection with
any other finance lease entered into in respect of
existing assets or future assets (to the extent they
are subject to Security Interests contemplated under
paragraph (j) of the definition of Permitted Security
Interests) provided that any amounts raised by
entering into that finance lease are applied within
90 days after creation of such lease to reduce the
Facilities; or
(g) Financial Indebtedness under Back to Back Loans; or
(h) deferred consideration in respect of:
(i) acquisitions completed by Vodafone or its
Subsidiaries prior to the Signing Date not
exceeding an aggregate principal amount of
(pound)50,000,000 or its equivalent; or
(ii) the cost of future Acquisitions completed
after the Signing Date payable within 12
months of completion of the Acquisition or,
to the extent payable after 12 months, not
exceeding, at any time an aggregate
principal amount of (pound)100,000,000 or
its equivalent; or
(i) Financial Indebtedness of any Subsidiary of Vodafone
which operates only as a finance company for the
Group to the extent the proceeds are on-lent to a
Guarantor (or to a Subsidiary which is not a member
of the Restricted Group); or
(j) Financial Indebtedness of AirTouch under bonds issued
by AirTouch in existence at the Signing Date to the
extent the aggregate principal amount does not exceed
U.S.$1,600,000,000 (in respect of its existing bonds
denominated in U.S. Dollars) and DM400,000,000 (in
respect of its existing bonds denominated in Deutsche
Marks); or
(k) Financial Indebtedness under this Agreement; or
(l) Financial Indebtedness of AirTouch existing at the
Merger Date under commercial paper programmes of
AirTouch (but this paragraph (l) only applies until
the date falling three months after the Merger Date);
or
(m) other Financial Indebtedness to the extent that the
sum of:
(i) the aggregate unpaid principal amount of the
Financial Indebtedness of all the members of
the Restricted Group which are not
Guarantors and owed to persons outside the
Restricted Group (other than Financial
Indebtedness under paragraphs (a) to (l)
above inclusive); plus
(ii) the aggregate unpaid principal amount of
Financial Indebtedness secured under
paragraph (q) of the definition of Permitted
Security Interest (to the extent not falling
within (m)(i) above),
does not exceed (pound)750,000,000 or its equivalent.
Compliance with this Clause 16.8 will be tested at the end of
each month. Financial Indebtedness of the Restricted Group not
denominated in (or which has not been swapped into) Sterling
shall be notionally converted (from the currency in which it
is denominated or, as the case may be, into which it has been
swapped) to Sterling at the rate of exchange used in the
management accounts of the relevant Obligor for that month.
16.9 DISPOSALS
No Obligor will, and each Obligor will procure that none of
its Subsidiaries which is a member of the Restricted Group
will, either in a single transaction or in a series of
transactions, whether related or not and whether voluntarily
or involuntarily, make any Asset Disposals other than:
(a) Asset Disposals on arm's length terms which are, in
the opinion of an Obligor, at fair market value;
(b) Asset Disposals required by law or any governmental
authority or agency (including without limitation any
authority or agency of the European Union);
(c) Asset Disposals made in good faith for the purpose of
carrying on the business of the Group which it is
reasonable to believe will benefit the Group; and
(d) (before the Merger Date) Asset Disposals, for this
purpose defined as if AirTouch were a member of the
Group, made in good faith for the purpose of carrying
on the business of the AirTouch Group which it is
reasonable to believe will benefit the AirTouch
Group.
16.10 RESTRICTION ON ACQUISITIONS
Vodafone will not, and will procure that no member of the
Group will, make any Acquisition unless the major part of the
Group's business remains telecommunications and associated
business.
17. FINANCIAL COVENANTS
17.1 FINANCIAL DEFINITIONS
In this Clause 17:
"APPLICABLE UK GAAP"
means the generally accepted accounting principles applying to
the United Kingdom as at 31st March, 1999 and consistent with
those applied in the preparation of the interim consolidated
accounts of Vodafone for the six month period ending 30th
September, 1998.
"ASSOCIATED COMPANY"
means any company in which any member of the Group holds a
material share of the equity and, in the opinion of the
directors of Vodafone, can exercise a significant influence in
such company's management and which is treated as such under
Applicable UK GAAP for the purpose of preparation of the
relevant financial statements.
"AVAILABLE CASH"
means:
(a) cash in hand or on deposit at call or for periods up
to 90 days with any bank or financial institution;
(b) securities issued or guaranteed by the UK government,
the United States government or the government of any
other G7 country;
(c) (i) marketable debt securities rated at least
A-2 by Xxxxx'x or A by S&P (taken at their
market value as at the time for
calculation); and
(ii) commercial paper rated at least A-1 by S&P
or P1 by Xxxxx'x;
(d) deposits made with the Commissioners of Inland
Revenue in respect of which certificates of tax
deposits have been issued by Her Majesty's Treasury;
(e) Sterling bills of exchange eligible for rediscount at
the Bank of England;
(f) the face amounts of certificates of deposit issued by
a bank or a building society; and
(g) any other instrument, security or investment approved
in writing by the Majority Lenders,
to the extent denominated in any freely convertible and
transferable currencies and beneficially owned by a member of
the Group unencumbered by any Security Interests other than
Permitted Security Interests.
"CONSOLIDATED PROFITS BEFORE INTEREST, AMORTISATION AND TAX"
means, in relation to any period, a sum equal to the Group's
total operating profit for continuing operations, acquisitions
(as a component of continuing operations) and discontinued
operations before taxation and after adding back Interest
Payable and amortisation but:
(a) deducting profits or adding back losses from a sale
or termination of an operation;
(b) deducting profits or adding back losses on a disposal
of fixed assets;
(c) adding back costs (whether exceptional or otherwise)
of a fundamental reorganisation or restructuring
having a material effect on the nature and focus of
the Group's operations;
(d) excluding extraordinary items; and
(e) excluding the results of any Associated Company or
any Investee Company.
"EBITDA"
means, in respect of any period, Consolidated Profits Before
Interest, Amortisation and Tax for that period after adding
back depreciation.
"INTEREST PAYABLE"
means, in respect of any period, all interest, and amounts in
the nature of interest incurred by the Group in effecting,
servicing or maintaining Total Consolidated Borrowings during
that period as shown in the financial statements of the Group
as "Interest payable and similar charges" or any comparable
entry, but:
(a) including as interest dividends paid on existing
preference shares of the Vodafone Group or AirTouch
Group; and
(b) excluding any interest or other such charges incurred
by any Associated Company or Investee Company.
"INTEREST RECEIVABLE"
means, in respect of any period, interest and amounts in the
nature of interest received or receivable by the Group during
that period, as shown in the financial statements of the Group
as "Interest receivable and similar income" or any comparable
entry but excluding any interest or other such income received
by any Associated Company or Investee Company.
"INVESTEE COMPANY"
means any company in which any member of the Group holds an
investment (whether by way of an equity shareholding and/or
long term loan) which is held as and stated as being a fixed
asset investment in the relevant financial statements of the
Group.
"NET DEBT"
means, at any time, Total Consolidated Borrowings at that time
less Available Cash at that time.
"NET INTEREST PAYABLE"
means, in respect of any period, Interest Payable less
Interest Receivable in that period.
"TOTAL CONSOLIDATED BORROWINGS"
means, at any time, the aggregate outstanding principal amount
of all Financial Indebtedness of the Group on a consolidated
basis at that time and includes shares redeemable before the
Final Maturity Date and convertible debt (until converted).
17.2 FINANCIAL RATIOS
Vodafone will procure that:
(a) the ratio of Consolidated Profits Before Interest,
Amortisation and Tax to Net Interest Payable will
exceed 2.50:1 for each Ratio Period ending on or
before 31st March, 2000 and 3.0:1 for each Ratio
Period thereafter; and
(b) the ratio of Net Debt to EBITDA will not exceed
3.75:1 for any Ratio Period ending on or before 31st
March, 2000 and 3.5:1 for any Ratio Period
thereafter,
and for the purposes of subclause (b) above, "NET DEBT" for
any Ratio Period will be calculated as the aggregate of the
Net Debt outstanding on the last day of each month during that
Ratio Period (as shown in Vodafone's consolidated management
accounts prepared at the end of each month in that Ratio
Period) divided by the number of months in that Ratio Period.
17.3 CALCULATION TIMES AND PERIODS
The first test date for the financial ratios specified in
Clause 17.2 (Financial ratios) will occur at the first half
year or year end after the Merger Date provided this occurs at
least three complete calendar months after the date (the
"MERGER ACCOUNTS DATE") from which the results of AirTouch are
consolidated into Vodafone's financial statements. Each
subsequent test date will be on the last day of each financial
half year and year of Vodafone. The financial ratios will be
calculated using data for the period (each a "RATIO PERIOD")
ending on each test date and beginning:
(a) in respect of the first test date, on the Merger
Accounts Date;
(b) in respect of the second test date, on the later of
the Merger Accounts Date and the date which is 12
months before the second test date; and
(c) thereafter, 12 months before the relevant test date,
and for any Ratio Period of less than 12 months, EBITDA will
be adjusted so as to produce an annualised figure by
multiplying EBITDA for that Ratio Period by 12 and dividing by
the number of months in that Ratio Period.
17.4 INFORMATION SOURCES
(a) All information for calculation of the financial ratios set
out in Clause 17.2 (Financial ratios), except Net Debt and
information for Ratio Periods falling less than 12 months from
the Merger Accounts Date (which information will (to the
extent that information from the audited or interim statements
referred to below is not available) be taken from Vodafone's
consolidated management accounts), will be extracted from
figures appearing in the unaudited interim financial
statements of Vodafone or the consolidated annual financial
statements of Vodafone as the case may be delivered to the
Agent under sub-clauses (a)(i) and (b) of Clause 16.2
(Financial information).
(b) If Vodafone applies accounting principles other than
Applicable UK GAAP in the preparation of any financial
statements delivered under Clauses 16.2(a)(i) or (b) (or
consolidated management accounts, where appropriate) and those
accounting principles would have a material effect on the
operation of the tests and ratios set out above, such
financial statements will be accompanied by a statement from
Vodafone containing or appending a reconciliation
demonstrating the effect of the change(s) and, for the purpose
of calculating the tests and ratios set out above, such
financial statements (or consolidated management accounts,
where appropriate) will be treated as though adjusted by that
reconciliation so as to exclude the effect of the changes.
(c) Information from Vodafone's consolidated management accounts
will be disclosed only when the relevant interim or annual
financial statements and compliance certificates are delivered
to the Agent.
(d) Any amount outstanding in a currency other than Sterling is to
be taken into account at its Sterling equivalent calculated at
the rate used in the latest consolidated financial statements
delivered to the Agent under Clause 16.2 (Financial
information) or consolidated management accounts, as
appropriate.
18. DEFAULT
18.1 EVENTS OF DEFAULT
Each of the events set out in Clauses 18.2 (Non-payment) to
18.14 (Litigation) (inclusive) is an Event of Default (whether
or not caused by any reason whatsoever outside the control of
any Obligor or any other person).
18.2 NON-PAYMENT
An Obligor does not pay within four Business Days of the due
date any amount payable by it under the Finance Documents at
the place at, and in the currency in, which it is expressed to
be payable.
18.3 BREACH OF OTHER OBLIGATIONS
(a) Vodafone does not comply with Clause 17 (Financial covenants).
(b) An Obligor does not comply with any provision of the Finance
Documents (other than those referred to in paragraph (a) above
or in Clause 18.2 (Non-payment)) and such failure (if capable
of remedy before the expiry of such period) continues
unremedied for a period of 21 days from the earlier of the
date on which (i) such Obligor has become aware of the failure
to comply or (ii) the Agent gives notice to the Borrowers'
Agent requiring the same to be remedied.
18.4 MISREPRESENTATION
A representation or warranty made or repeated by any Obligor
in any Finance Document is found to be untrue in any material
respect when made or deemed to have been made.
18.5 CROSS DEFAULT
(a) Any Financial Indebtedness of a member of the Restricted Group
is not paid when due or within any originally applicable grace
period or becomes prematurely due and payable or capable of
being declared prematurely due and payable as a result of an
event of default (howsoever described) under the document
relating to that Financial Indebtedness.
(b) Paragraph (a) above shall not apply in respect of:
(i) Financial Indebtedness where the aggregate principal
amount of all Financial Indebtedness to which any
event specified in paragraph (a) relates is less than
(pound)25,000,000; or
(ii) any amount which is being contested in good faith; or
(iii) the relevant Financial Indebtedness is owed to a
member of the Restricted Group; or
(iv) in the case of Financial Indebtedness which has not
become due and payable, the relevant event of default
is an event of default under a bond and is capable of
waiver by the bond trustee without bondholder
consent.
18.6 WINDING UP
An order is made or an effective resolution is passed for
winding up any Obligor or any Principal Subsidiary (except for
the purposes of a reconstruction or amalgamation on terms
previously approved in writing by the Majority Lenders) or a
petition is presented (which is not set aside or withdrawn
within the earlier of 21 days of its presentation or by not
later than two Business Days prior to the date for the hearing
of such petition) for an administration order or for the
winding up of any Obligor or any Principal Subsidiary except
where demonstrated to the reasonable satisfaction of the
Majority Lenders that any such winding up petition is being
contested in good faith.
18.7 INSOLVENCY PROCESS
(a) A liquidator, administrator, receiver, trustee, sequestrator
or similar officer is appointed in respect of all or any part
of the assets of any Obligor or any Principal Subsidiary which
generates a material part of the revenues of that Obligor or
that Principal Subsidiary; or
(b) any Obligor or any Principal Subsidiary, by reason of
financial difficulties, enters into a composition, assignment
or arrangement with any class of its creditors.
18.8 ENFORCEMENT PROCEEDINGS
A distress, execution, attachment or other legal process is
levied, enforced or sued out upon or against all or any part
of the assets of any Obligor or any Principal Subsidiary which
generates a material part of the revenues of that Obligor or
that Principal Subsidiary except where the same is being
contested in good faith or is removed, discharged or paid
within 21 days.
18.9 INSOLVENCY
Any Obligor or any Principal Subsidiary is deemed under
Section 123(1)(e) or 123(2) of the Insolvency Xxx 0000 to be
unable to pay its debts.
18.10 SIMILAR PROCEEDINGS
Anything having a substantially similar effect to any of the
events specified in Clauses 18.6 (Winding up) to 18.9
(Insolvency) inclusive shall occur under the laws of any
applicable jurisdiction in relation to any Obligor or any
Principal Subsidiary.
18.11 UNLAWFULNESS
It is or becomes unlawful for any Obligor to perform any of
its payment or other material obligations under the Finance
Documents.
18.12 GUARANTEE
The guarantee of any Guarantor under Clause 14 (Guarantee) is
not effective or is alleged by an Obligor to be ineffective
for any reason (other than by reason of written release or
waiver by the Finance Parties or in accordance with Clause
14.9 (Removal of Guarantors)).
18.13 CESSATION OF BUSINESS
Any Obligor or any Principal Subsidiary ceases to carry on all
or substantially all of its business otherwise than:
(a) as a result of a transfer of all or any part of its
business to a member of the Group which is, or upon
such transfer becomes, a Principal Subsidiary; or
(b) as a result of a disposal permitted under Clause 16.9
(Disposals); or
(c) with the prior written consent of the Majority
Lenders.
18.14 LITIGATION
Any litigation proceedings are current which are reasonably
likely to be adversely determined and which would be
reasonably likely to have a materially adverse effect on the
ability of the Obligors (taken as a whole) to perform their
payment obligations under the Finance Documents.
18.15 ACCELERATION
(a) On and at any time after the occurrence of an Event of Default
while such event is continuing the Agent may, and if so
directed by the Majority Lenders, will by notice to the
Borrowers' Agent, declare that an Event of Default has
occurred and:
(i) subject to paragraph (b) below, cancel the Total
Commitments; and/or
(ii) demand that all the Advances, together with accrued
interest, and all other amounts accrued under this
Agreement be immediately due and payable, whereupon
they shall become immediately due and payable; and/or
(iii) demand that all the Advances be payable on demand,
whereupon they shall immediately become payable on
demand.
(b) If, prior to the Merger Date, an event occurs or circumstances
arise solely in relation to a member of the AirTouch Group
which, but for this Clause 18.15(b) would otherwise constitute
a breach of this Agreement, the Lenders will not be able to
cancel any part of the Total Commitments unless that event or
circumstance would, but for this Clause 18.15(b), constitute
an Event of Default and continues unremedied and unwaived for
45 days from the date on which Vodafone becomes aware of such
event or circumstance. Notwithstanding the foregoing, no
Request may be made while such an event or circumstance is
continuing.
19. THE AGENTS AND THE ARRANGERS
19.1 APPOINTMENT AND DUTIES OF THE AGENTS
Each Finance Party (other than the Agent) irrevocably appoints
the Agent to act as its agent under and in connection with the
Finance Documents and each Swingline Lender appoints the U.S.
Swingline Agent to act as its agent in relation to the
Swingline Facility, and each Finance Party irrevocably
authorises the Agent or, as the case may be, the U.S.
Swingline Agent on its behalf to perform the duties and to
exercise the rights, powers and discretions that are
specifically delegated to it under or in connection with the
Finance Documents, together with any other incidental rights,
powers and discretions. The Agent or, as the case may be, the
U.S. Swingline Agent shall have only those duties which are
expressly specified in this Agreement. Those duties are solely
of a mechanical and administrative nature.
19.2 ROLE OF THE ARRANGERS
Except as otherwise provided in this Agreement, no Arranger
has any obligations of any kind to any other Party under or in
connection with any Finance Document.
19.3 RELATIONSHIP
The relationship between the Agent or, as the case may be, the
U.S. Swingline Agent and the other Finance Parties is that of
agent and principal only. Nothing in this Agreement
constitutes the Agent or, as the case may be, the U.S.
Swingline Agent as trustee or fiduciary for any other Party or
any other person and the Agent or, as the case may be, the
U.S. Swingline Agent need not hold in trust any moneys paid to
it for a Party or be liable to account for interest on those
moneys.
19.4 MAJORITY LENDERS' DIRECTIONS
(a) The Agent or, as the case may be, the U.S. Swingline Agent
will be fully protected if it acts in accordance with the
instructions of the Majority Lenders in connection with the
exercise of any right, power or discretion or any matter not
expressly provided for in the Finance Documents. Any such
instructions given by the Majority Lenders will be binding on
all the Lenders. In the absence of such instructions the Agent
or, as the case may be, the U.S. Swingline Agent may act as it
considers to be in the best interests of all the Lenders.
(b) Neither the Agent nor the Swingline Agent is 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.
19.5 DELEGATION
The Agent or, as the case may be, the U.S. Swingline Agent may
act under the Finance Documents through its personnel and
agents.
19.6 RESPONSIBILITY FOR DOCUMENTATION
Neither the Agent, the U.S. Swingline Agent nor any Arranger
is responsible to any other Party for:
(a) the execution, genuineness, validity, enforceability
or sufficiency of any Finance Document or any other
document by any other Party;
(b) the collectability of amounts payable under any
Finance Document; or
(c) the accuracy of any statements (whether written or
oral) made in or in connection with any Finance
Document by any other Party.
19.7 DEFAULT
(a) The Agent or, as the case may be, the U.S. Swingline Agent is
not obliged to monitor or enquire as to whether or not a
Default has occurred. Neither the Agent nor the U.S. Swingline
Agent will be deemed to have knowledge of the occurrence of a
Default. However, if the Agent or, as the case may be, the
U.S. Swingline Agent receives notice from a Party referring to
this Agreement, describing the Default and stating that the
event is a Default, it shall promptly notify the Lenders of
such notice.
(b) The Agent or, as the case may be, the U.S. Swingline Agent may
require the receipt of security satisfactory to it whether by
way of payment in advance or otherwise, against any liability
or loss which it will or may incur in taking any proceedings
or action arising out of or in connection with any Finance
Document before it commences these proceedings or takes that
action.
19.8 EXONERATION
(a) Without limiting paragraph (b) below, the Agent or, as the
case may be, the U.S. Swingline Agent will not be liable to
any other Party for any action taken or not taken by it under
or in connection with any Finance Document, unless directly
caused by its negligence or wilful misconduct or breach of any
of its obligations under or in connection with the Finance
Documents.
(b) No Party may take any proceedings against any officer,
employee or agent being an individual of the Agent or, as the
case may be, the U.S. Swingline Agent in respect of any claim
it might have against the Agent or, as the case may be, the
U.S. Swingline Agent or in respect of any act or omission of
any kind (including negligence or wilful misconduct) by that
officer, employee or agent in relation to any Finance
Document.
19.9 RELIANCE
The Agent or, as the case may be, the U.S. Swingline Agent
may:
(a) rely on any notice or document reasonably believed by
it to be genuine and correct and to have been signed
by, or with the authority of, the proper person;
(b) rely on any statement made by a director or employee
of any person regarding any matters which may
reasonably be assumed to be within his knowledge or
within his power to verify; and
(c) engage, pay for and rely on legal or other
professional advisers selected by it (including those
in the Agent's or, as the case may be, the U.S.
Swingline Agent's employment and those representing a
Party other than the Agent or, as the case may be,
the U.S. Swingline Agent).
19.10 CREDIT APPROVAL AND APPRAISAL
Without affecting the responsibility of any Obligor for
information supplied by it or on its behalf in connection with
any Finance Document, each Lender confirms that it:
(a) has made its own independent investigation and
assessment of the financial condition and affairs of
each Obligor and its related entities in connection
with its participation in this Agreement and has not
relied exclusively on any information provided to it
by the Agent, the U.S. Swingline Agent or the
Arrangers in connection with any Finance Document;
and
(b) will continue to make its own independent appraisal
of the creditworthiness of each Obligor and its
related entities while any amount is or may be
outstanding under the Finance Documents or any
Commitment is in force.
19.11 INFORMATION
(a) The Agent or, as the case may be, the U.S. Swingline Agent
shall promptly forward to the person concerned the original or
a copy of any document which is delivered to the Agent or, as
the case may be, the U.S. Swingline Agent by a Party for that
person.
(b) The Agent shall promptly supply a Lender with a copy of each
document received by the Agent under Clauses 4 (Conditions
Precedent), or 26.4 (Additional Guarantors) upon the request
and at the expense of that Lender.
(c) Except where this Agreement specifically provides otherwise,
the Agent or, as the case may be, the U.S. Swingline Agent is
not obliged to review or check the accuracy or completeness of
any document it forwards to another Party.
(d) Except as provided above, the Agent or, as the case may be,
the U.S. Swingline Agent has no duty:
(i) either initially or on a continuing basis to provide
any Lender with any credit or other information
concerning the financial condition or affairs of any
Borrower or any related entity of any Borrower
whether coming into its possession or that of any of
its related entities before, on or after the Signing
Date; or
(ii) unless specifically requested to do so by a Lender in
accordance with this Agreement, to request any
certificates or other documents from any Borrower.
19.12 THE AGENT AND THE ARRANGERS INDIVIDUALLY
(a) If it is also a Lender, each of the Agent, the U.S. Swingline
Agent and the Arrangers has the same rights and powers under
this Agreement as any other Lender and may exercise those
rights and powers as though it were not the Agent, the U.S.
Swingline Agent or an Arranger.
(b) Each of the Agent, the U.S. Swingline Agent and the Arrangers
may:
(i) carry on any business with a Borrower or its related
entities;
(ii) act as agent or trustee for, or in relation to any
financing involving, a Borrower or its related
entities; and
(iii) retain any profits or remuneration in connection with
its activities under the Finance Documents, or in
relation to any of the foregoing.
19.13 INDEMNITIES
(a) Without limiting the liability of any Obligor under the
Finance Documents, each Lender shall forthwith on demand
indemnify the Agent or, as the case may be, the U.S. Swingline
Agent for its proportion of any liability or loss incurred by
the Agent or, as the case may be, the U.S. Swingline Agent in
any way relating to or arising out of its acting as the Agent
or, as the case may be, the U.S. Swingline Agent, except to
the extent that the liability or loss arises directly from the
Agent's or, as the case may be, the U.S. Swingline Agent's
negligence or wilful misconduct.
(b) A Lender's proportion of the liability or loss set out in
paragraph (a) above is the proportion which its Commitment
bears to the Total Commitments at the date of demand or, if
the Total Commitments have been cancelled, bore to the Total
Commitments immediately before being cancelled.
19.14 COMPLIANCE
(a) The Agent or, as the case may be, the U.S. Swingline Agent,
may refrain from doing anything which might, in its reasonable
opinion, constitute a breach of any law or regulation or be
otherwise actionable at the suit of any person, and may do
anything which, in its reasonable opinion, is necessary or
desirable to comply with any law or regulation of any
jurisdiction.
(b) Without limiting paragraph (a) above, the Agent or, as the
case may be, the U.S. Swingline Agent, need not disclose any
information relating to any Obligor or any of its related
entities if the disclosure might, in the opinion of the Agent
or, as the case may be, the U.S. Swingline Agent, constitute a
breach of any law or regulation or any duty of secrecy or
confidentiality or be otherwise actionable at the suit of any
person.
19.15 RESIGNATION OF AGENTS
(a) Notwithstanding its irrevocable appointment, the Agent or, as
the case may be, the U.S. Swingline Agent, may resign by
giving notice to the Lenders and Vodafone, in which case the
Agent or, as the case may be, the U.S. Swingline Agent, may
forthwith appoint one of its Affiliates as successor Agent or,
failing that, the Majority Lenders may after consultation with
the Borrowers' Agent appoint a reputable and experienced bank
as successor Agent or, as the case may be, successor U.S.
Swingline Agent.
(b) If the appointment of a successor Agent or, as the case may
be, successor U.S. Swingline Agent is to be made by the
Majority Lenders but they have not, within 30 days after
notice of resignation, appointed a successor Agent or, as the
case may be, successor U.S. Swingline Agent which accepts the
appointment, the retiring Agent or, as the case may be, the
retiring U.S. Swingline Agent may, following consultation with
the Borrowers' Agent, appoint a successor Agent or, as the
case may be, successor U.S. Swingline Agent.
(c) The resignation of the retiring Agent or, as the case may be,
retiring U.S. Swingline Agent and the appointment of any
successor Agent or, as the case may be, successor U.S.
Swingline Agent will both become effective only upon the
successor Agent or, as the case may be, successor U.S.
Swingline Agent notifying all the Parties that it accepts the
appointment. On giving the notification and receiving such
approval, the successor Agent or, as the case may be,
successor U.S. Swingline Agent will succeed to the position of
the retiring Agent or, as
the case may be, retiring U.S. Swingline Agent and the term
"AGENT" or, as the case may be, "U.S. SWINGLINE AGENT" will
mean the successor Agent or, as the case may be, successor
U.S. Swingline Agent.
(d) The retiring Agent or, as the case may be, retiring U.S.
Swingline Agent shall, at its own cost, make available to the
successor Agent or, as the case may be, successor U.S.
Swingline Agent such documents and records and provide such
assistance as the successor Agent or, as the case may be,
successor U.S. Swingline Agent may reasonably request for the
purposes of performing its functions as the Agent or, as the
case may be, the U.S. Swingline Agent under this Agreement.
(e) Upon its resignation becoming effective, this Clause 19 shall
continue to benefit the retiring Agent or, as the case may be,
retiring U.S. Swingline Agent in respect of any action taken
or not taken by it under or in connection with the Finance
Documents while it was the Agent or, as the case may be, the
U.S. Swingline Agent, and, subject to paragraph (d) above, it
shall have no further obligation under any Finance Document.
(f) The Majority Lenders may by notice to the Agent or, as the
case may be, the U.S. Swingline Agent, require it to resign in
accordance with paragraph (a) above. In this event, the Agent
or, as the case may be, the U.S. Swingline Agent shall resign
in accordance with paragraph (a) above but it shall not be
entitled to appoint one of its Affiliates as successor Agent
or successor U.S. Swingline Agent.
19.16 LENDERS
The Agent or, as the case may be, the U.S. Swingline Agent may
treat each Lender as a Lender, entitled to payments under this
Agreement and as acting through its Facility Office(s) until
it has received notice from the Lender to the contrary by not
less than five Business Days prior to the relevant payment.
19.17 CHINESE WALL
In acting as Agent, U.S. Swingline Agent or Arranger, the
agency and syndications division of each of the Agent, the
U.S. Swingline Agent and the Arrangers shall be treated as a
separate entity from its other divisions and departments. Any
information acquired at any time by the Agent, the U.S.
Swingline Agent or any Arranger otherwise than in the capacity
of Agent, U.S. Swingline Agent or Arranger through its agency
and syndications division (whether as financial advisor to any
member of the Group or otherwise) may be treated as
confidential by the Agent, U.S. Swingline Agent or Arranger
and shall not be deemed to be information possessed by the
Agent, U.S. Swingline Agent or Arranger in their capacity as
such. Each Finance Party acknowledges that the Agent, the U.S.
Swingline Agent and the Arrangers may, now or in the future,
be in possession of, or provided with, information relating to
the Obligors which has not or will not be provided to the
other Finance Parties. Each Finance Party agrees that, except
as expressly provided in this Agreement, neither the Agent,
U.S. Swingline Agent nor any Arrangers will be under any
obligation to provide, or under any liability for failure to
provide, any such information to the other Finance Parties.
20. FEES
20.1 COMMITMENT FEE
(a) Vodafone shall pay to the Agent for distribution to each
Lender pro rata to the proportion its:
(i) Tranche A Commitment bears to the Tranche A Total
Commitments;
(ii) Tranche B Commitment bears to the Tranche B Total
Commitments; and
(iii) Tranche C Commitment bears to the Tranche C Total
Commitments,
from time to time a commitment fee at the rate per annum
specified in sub-clause (e) of Clause 8.6 (Margin and
commitment fee) in relation to the Tranche concerned on
any undrawn, uncancelled amount of the Tranche A Total
Commitments, Tranche B Total Commitments or, as the case
may be, Tranche C Total Commitments on each day.
(b) Commitment fee is calculated and accrues on a daily basis on
and from the Signing Date and is payable in arrear on the
earlier of the first Drawdown Date and 1st October, 1999 and
quarterly in arrear thereafter. Accrued commitment fee is also
payable to the Agent for the relevant Lender(s) on the
cancelled amount of its Tranche A Commitment, Tranche B
Commitment or Tranche C Commitment, as the case may be, at the
time the cancellation takes effect (but only in respect of the
period up to the date of cancellation).
20.2 UTILISATION FEE
(a) Vodafone will pay to the Agent for distribution to each Lender
pro rata to the proportion its:
(i) outstanding participation in outstanding Tranche A
Advances bears to the aggregate outstanding Tranche A
Advances; and
(ii) outstanding participation in outstanding Tranche C
Advances (including Swingline Advances) bears to the
aggregate outstanding Tranche C Advances (including
Swingline Advances),
in respect of any day that aggregate utilisation under the
relevant Tranche falls within the percentage range set out
below of the aggregate Commitments under that Tranche as at
the Merger Date as follows:
UTILISATION OF COMMITMENTS (AS AT THE MERGER DATE) UTILISATION FEE ON THE
UNDER TRANCHE A OR C RELEVANT TRANCHE
(% P.A.)
33 1/3% or less Nil
More than 33 1/3% but not more than 66 2/3%
0.05
More than 66 2/3% 0.10
(b) Utilisation fee is calculated and accrues on a daily basis and
is payable in arrear on the same dates as commitment fee under
Clause 20.1 (Commitment fee) is payable. Accrued utilisation
fee is also payable to the Agent for the relevant Lenders on
the Tranche A Term Date (or the Maturity Date of the Term-out
Advances, if the Tranche A Term-out Option is exercised) and
the Final Maturity Date.
20.3 TERM-OUT FEE AND TRANCHE B EXTENSION FEE
If the Borrowers' Agent exercises the Tranche A Term-out
Option and/or elects to extend the Tranche B Term Date under
Clause 6.2(b) (Repayment of Tranche B Advances), then within
three Business Days after the last day of the Tranche A
Availability Period and/or Tranche B Commitment Period (the
"COMMITMENT TERMINATION DATE"), Vodafone will pay to the Agent
for distribution pro rata to the Lenders participating in the
Term-out Advances outstanding at close of business in London
on the Commitment Termination Date and pro rata to the Lenders
participating in any Tranche B Advances outstanding at close
of business in London on the Commitment Termination Date, fees
calculated as follows:
(a) in the case of Term-out Advances, fees of 0.125 per
cent. flat on the principal amount of each Term-out
Advance then outstanding; and
(b) in the case of an extension of the Tranche B
Advances, a fee of 0.125 per cent. flat on the
aggregate principal amount of each Tranche B Advance
then outstanding.
Fees payable under this Clause 20.3 are payable in the
currency of the Advance in relation to which they are
calculated.
20.4 AGENT'S FEE
Vodafone shall pay to the Agent for its own account an agency
fee in the amounts and on the dates agreed in the relevant Fee
Letter.
20.5 FRONT-END FEES
Vodafone shall pay to the Agent for the Arrangers front-end
fees in the amounts and on the dates specified in the relevant
Fee Letter.
20.6 VAT
Any fee referred to in this Clause 20 is exclusive of any
United Kingdom value added tax. If any value added tax is so
chargeable, it shall be paid by Vodafone at the same time as
it pays the relevant fee.
21. EXPENSES
21.1 INITIAL AND SPECIAL COSTS
Vodafone shall forthwith on demand pay the Agent, the U.S.
Swingline Agent and the Arrangers the amount of all
out-of-pocket costs and expenses (including but not limited to
legal fees up to an amount agreed, in the case of (a) and
(b)(i) below, with the Arrangers) reasonably incurred by any
of them in connection with:
(a) preparation and distribution of information in
connection with sub-underwriting and general
syndication of the Facilities and bank presentations
after the Signing Date (excluding travel expenses);
(b) the negotiation, preparation, printing and execution
of:
(i) this Agreement and any other documents
referred to in this Agreement; and
(ii) any other Finance Document (other than a
Novation Certificate) executed after the
date of this Agreement;
(c) any amendment, waiver, consent or suspension of
rights (or any proposal for any of the foregoing)
requested by or on behalf of an Obligor and relating
to a Finance Document or a document referred to in
any Finance Document; and
(d) any other agency matter not of an ordinary
administrative nature, arising out of or in
connection with a Finance Document in the amount
agreed between the Agent and Vodafone at the relevant
time.
21.2 ENFORCEMENT COSTS
Vodafone shall within five Business Days' of receiving written
demand pay to each Finance Party the amount of all costs and
expenses (including but not limited to legal fees) incurred
(or in the case of (b) below reasonably incurred) by it:
(a) in connection with the enforcement of any Finance
Document; or
(b) in connection with the preservation of any rights
under any Finance Document; or
(c) in investigating any possible Default where Vodafone
or any Finance Party has reasonable grounds to
believe that a Default has occurred.
22. STAMP DUTIES
Vodafone shall pay and within five Business Days of receiving
written demand indemnify each Finance Party against any
liability it incurs in respect of any stamp, registration or
similar tax which is or becomes payable in any jurisdiction in
or through which any payment under the Finance Documents is
made or any Obligor is incorporated or has any assets in
connection with the entry into, performance or enforcement of
any Finance Document.
23. INDEMNITIES
23.1 CURRENCY INDEMNITY
(a) If a Finance Party receives an amount in respect of an
Obligor's liability under the Finance Documents or if that
liability is converted into a claim, proof, judgment or order
in a currency other than the currency (the "CONTRACTUAL
CURRENCY") in which the amount is expressed to be payable
under the relevant Finance Document:
(i) that Obligor shall indemnify that Finance Party as an
independent obligation against any loss or liability
arising out of or as a result of the conversion;
(ii) if the amount received by that Finance Party, when
converted into the contractual currency at a market
rate in the usual course of its business, is less
than the amount owed in the contractual currency, the
Obligor concerned shall forthwith on demand pay to
that Finance Party an amount in the contractual
currency equal to the deficit (provided that if the
amount received by the Finance Party following such
conversion is greater than the amount owed, the
Finance Party shall pay to such Obligor an amount
equal to the excess); and
(iii) the Obligor shall pay to the Finance Party concerned
on demand any exchange costs and taxes payable in
connection with any such conversion.
(b) Each Obligor waives any right it may have in any jurisdiction
to pay any amount under the Finance Documents in a currency
other than that in which it is expressed to be payable.
23.2 OTHER INDEMNITIES
Vodafone shall forthwith on demand indemnify each Finance
Party against any loss or liability which that Finance Party
incurs as a consequence of:
(a) the occurrence of any Default;
(b) amendments to this Agreement to reflect a change in
currency of a country pursuant to Clause 9.4(d)
(Currency);
(c) the operation of Clause 18.15 (Acceleration);
(d) any payment of principal or an overdue amount being
received from any source otherwise than, in the case
of Tranche A Advances (except Term-out Advances),
Tranche C Advances or Swingline Advances, on its
Maturity Date (and, for the purposes of this
paragraph (d), the Maturity Date of an overdue amount
is the last day of each Designated Term (as defined
in Clause 8.4 (Default interest))) and, in the case
of Tranche B Advances and Term-out Advances, on
applicable Interest Dates; or
(e) a Default or an action or omission by an Obligor
resulting in an Advance not being disbursed after a
Borrower has delivered a Request for that Advance.
Vodafone's liability in each case includes any loss or expense
and, in respect of an amount received as a result of voluntary
prepayment made under Clause 7.4 (Voluntary prepayment) only,
loss of Margin in respect or on account of funds borrowed,
contracted for or utilised to
fund any amount payable under any Finance Document, any amount
repaid or prepaid or any Advance.
23.3 MERGER INDEMNITY
Vodafone and AirTouch shall indemnify each Finance Party, each
of their respective affiliates and each director, officer,
employee or agent of a Finance Party or of any affiliate of
any Finance Party (each an "INDEMNIFIED PARTY") from time to
time on demand from and against any and all losses,
liabilities, claims, costs or expenses (including reasonable
legal fees) which the relevant Indemnified Party may suffer or
incur (except to the extent that the same result from the
negligence or wilful misconduct of any Indemnified Party) by
virtue of the relevant Finance Party acting in its capacity as
a Finance Party and arising out of or by reason of any
investigation, litigation or proceeding arising out of or in
connection with the merger of Vodafone and AirTouch (whether
or not made).
If any action, proceeding, claim or demand shall be brought or
asserted against any Indemnified Party in respect of which
indemnification may be sought from Vodafone or AirTouch as
provided in the preceding paragraph, the relevant Finance
Party shall:
(i) notify Vodafone and AirTouch in writing as soon as
practicable after it becomes aware of such fact;
(ii) conduct the defence of that action, proceeding, claim
or demand properly and diligently, taking into
account its own interests and those of Vodafone and
AirTouch;
(iii) consult in good faith with Vodafone and AirTouch
(from time to time and before taking any material
decision) about the conduct of that action,
proceeding, claim or demand; and
(iv) notify Vodafone and AirTouch of, and diligently
pursue, any settlement approach or opportunity to
settle that action, proceeding, claim or demand.
No Finance Party or Indemnified Party shall settle any such
action, proceeding, claim or demand without the prior written
consent of Vodafone and AirTouch (such consent not to be
unreasonably withheld, taking into account without limitation
the cost to Vodafone and AirTouch of continuing, the likely
outcome of that action, proceeding, claim or demand, and the
adverse effects (actual or potential) on the business
interests and/or reputation of that Finance Party or
Indemnified Party of not settling). Vodafone and AirTouch
shall not be liable to indemnify any Finance Party or any
other Indemnified Person for any settlement of any such
action, claim, proceeding or demand made or effected without
the authority and prior written consent of Vodafone and
AirTouch (such consent not to be unreasonably withheld, as
mentioned above).
If any offer is made to settle any such action, proceeding,
claim, or demand, the relevant Finance Party or Indemnified
Party may only refuse to accept that offer with the consent of
Vodafone and AirTouch (such consent not to be unreasonably
withheld, taking into account without limitation the cost to
Vodafone and AirTouch of continuing, the likely outcome of the
action, proceeding, claim or demand, and the adverse effects
(actual or potential) on the business interests and/or
reputation of that Finance Party or Indemnified Party of
settling). If any Finance Party or Indemnified Party refuses
any such settlement offer without the consent of Vodafone and
AirTouch (such consent not having been unreasonably withheld
as mentioned above), then Vodafone and AirTouch will not be
liable under this Clause 23.3 for
any amount greater than the amount they would have been liable
for had that offer been accepted.
23.4 BREAKAGE COSTS
If a Finance Party receives or recovers any payment of
principal of an Advance or of an overdue amount other than on
its Maturity Date or, as the case may be, the last day of the
Interest Period for that Advance or Designated Term for the
purposes of calculation of the amount payable by Vodafone
under sub-clause (d) of Clause 23.2 (Other indemnities) in
respect of the amount so received or recovered, that Finance
Party shall calculate:
(a) the additional interest (excluding the Margin, except
in respect of an amount received as a result of
voluntary prepayment made under Clause 7.4 (Voluntary
prepayment)) which would have been payable on the
principal so received or recovered had it been
received or recovered on the relevant Maturity Date
or, as the case may be, the last day of the relevant
Interest Period or Designated Term; and
(b) the amount of interest which would have been payable
to that Finance Party on the relevant Maturity Date
or, as the case may be, the last day of the Interest
Period or Designated Term concerned in respect of a
deposit by that Finance Party in the currency of the
amount received or recovered placed with a prime bank
in London earning interest from (and including) the
earliest Business Day for placing deposits in such
currency following receipt of that amount up to (but
excluding) the relevant Maturity Date or, as the case
may be, the last day of the applicable Interest
Period or Designated Term,
and if the amount payable under paragraph (a) above is greater
than the amount payable under paragraph (b), Vodafone will,
forthwith on receipt of a demand from the relevant Finance
Party pursuant to sub-clause (d) of Clause 23.2 (Other
indemnities), pay to that Finance Party an amount equal to the
difference between the amount payable under (a) and (b) above.
24. EVIDENCE AND CALCULATIONS
24.1 ACCOUNTS
Accounts maintained by a Finance Party in connection with this
Agreement are prima facie evidence of the matters to which
they relate (except in a case of manifest error).
24.2 CERTIFICATES AND DETERMINATIONS
Any certification or determination by a Finance Party of a
rate or amount under this Agreement is, in the absence of
manifest error, prima facie evidence of the matters to which
it relates.
24.3 CALCULATIONS
Interest and the fee payable under Clause 20.1 (Commitment
fee) accrue from day to day and are calculated on the basis of
the actual number of days elapsed and a year of 360 days, or,
in the case of interest at the Swingline Rate or any interest
payable on an amount denominated in Sterling, 365 days.
25. AMENDMENTS AND WAIVERS
25.1 PROCEDURE
(a) Subject to Clause 25.2 (Exceptions), any term of the Finance
Documents may be amended or waived with the agreement of the
Borrowers' Agent and the Majority Lenders. The Agent may
effect, on behalf of the Lenders, an amendment to which the
Majority Lenders have agreed.
(b) The Agent shall promptly notify the other Parties of any
amendment or waiver effected under paragraph (a) above, and
any such amendment or waiver shall be binding on all the
Parties.
25.2 EXCEPTIONS
An amendment or waiver which relates to:
(a) the definition of "Majority Lenders" in Clause 1.1
(Definitions); or
(b) an extension of the date for, or a decrease in an
amount or a change in the currency of, any payment
under the Finance Documents; or
(c) an increase in a Lender's Commitment; or
(d) a change in the guarantee under Clause 14 (Guarantee)
otherwise than in accordance with Clause 26.4
(Additional Guarantors) or Clause 14.9 (Removal of
Guarantors); or
(e) the incorporation of additional borrowers under the
Facilities; or
(f) a term of a Finance Document which expressly requires
the consent of each Lender; or
(g) Clause 29 (Pro Rata Sharing) or this Clause 25; or
(h) any Interest Period or Term exceeding six months,
may not be effected without the consent of each Lender. Any
amendment or waiver which changes, or relates to the rights
and/or obligations of the Agent or U.S. Swingline Agent shall
also require its agreement.
25.3 WAIVERS AND REMEDIES CUMULATIVE
The rights of each Party under the Finance Documents:
(i) may be exercised as often as necessary;
(ii) are cumulative and not exclusive of its rights under
the general law; and
(iii) may be waived only in writing and specifically.
Delay in exercising or non-exercise of any such right is not a
waiver of that right.
26. CHANGES TO THE PARTIES
26.1 TRANSFERS BY OBLIGORS
Subject to Clause 26.5 (Novation of AirTouch's obligations),
no Obligor may assign, transfer, novate or dispose of any of,
or any interest in, its rights and/or obligations under this
Agreement.
26.2 TRANSFERS BY LENDERS
(a) A Lender (the "EXISTING LENDER") may at any time assign,
transfer or novate any of its rights and/or obligations under
this Agreement to another person (the "NEW LENDER") provided
that:
(i) in the case of a partial assignment, transfer or
novation of rights and/or obligations, a minimum
amount of U.S.$10,000,000 in aggregate and in a
minimum of U.S.$1,000,000 per Tranche (unless to an
Affiliate or to a Lender or the Agent agrees
otherwise) must be assigned, transferred or novated;
(ii) in the case of an assignment, transfer or novation by
a Swingline Lender, a portion of that Swingline
Lender's Swingline Commitment must also be assigned,
transferred or novated to the extent necessary (if at
all) to ensure that the Swingline Lender's Swingline
Commitment does not exceed its Tranche C Commitment
after the assignment, transfer or novation.
(b) A transfer of obligations will be effective only if either:
(i) the obligations are novated in accordance with Clause
26.3 (Procedure for novations); or
(ii) the New Lender gives prior written notice to the
Borrowers' Agent and confirms to the Agent and the
Borrowers' Agent that it undertakes to be bound by
the terms of this Agreement as a Lender in form and
substance satisfactory to the Agent. On the transfer
becoming effective in this manner the Existing Lender
shall be relieved of its obligations under this
Agreement to the extent that they are transferred to
the New Lender.
(c) No assignment, transfer or novation requires the consent of
any Obligor but (except in relation to an assignment, transfer
or novation to an Affiliate) the Existing Lender must notify
Vodafone within three Business Days of such an assignment,
transfer or novation taking effect of the name of the New
Lender and the date it takes effect.
(d) Nothing in this Agreement restricts the ability of a Lender to
sub-contract an obligation if that Lender remains liable under
this Agreement for that obligation.
(e) On each occasion an Existing Lender assigns, transfers or
novates any of its rights and/or obligations under this
Agreement after the end of the Primary Syndication Period
(other than to an Affiliate), the New Lender shall, on the
date the assignment, transfer and/or novation takes effect,
pay to the Agent for its own account a fee of (pound)1,000.
(f) An Existing Lender is not responsible to a New Lender for:
(i) the execution, genuineness, validity, enforceability
or sufficiency of any Finance Document or any other
document;
(ii) the collectability of amounts payable under any
Finance Document; or
(iii) the accuracy of any statements (whether written or
oral) made in connection with any Finance Document.
(g) Each New Lender confirms to the Existing Lender and the other
Finance Parties that it:
(i) has made its own independent investigation and
assessment of the financial condition and affairs of
each Obligor and its related entities in connection
with its participation in this Agreement and has not
relied exclusively on any information provided to it
by the Existing 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 while any amount is or may be
outstanding under this Agreement or any Commitment is
in force.
(h) Nothing in any Finance Document obliges an Existing Lender to:
(i) accept a re-transfer from a New Lender of any of the
rights and/or obligations assigned, transferred or
novated under this Clause 26; or
(ii) support any losses incurred by the New Lender by
reason of the non-performance by any Obligor of its
obligations under this Agreement or otherwise.
(i) Any reference in this Agreement to a Lender includes a New
Lender but excludes a Lender if no amount is or may be owed to
or by it under this Agreement and its Commitment has been
cancelled or reduced to nil.
(j) If any assignment, transfer or novation results either:
(i) at the time of the assignment, transfer or novation;
or
(ii) at any future time where the additional amount was
caused as a result of laws and/or regulations in
force at the date of the assignment, transfer or
novation,
in additional amounts becoming due under Clause 10 (Taxes) or
amounts becoming due under Clause 12 (Increased Costs), the
New Lender shall be entitled to receive such additional
amounts only to the extent that the Existing Lender would have
been so entitled had there been no such assignment, transfer
or novation.
26.3 PROCEDURE FOR NOVATIONS
(a) A novation is effected if:
(i) the Existing Lender and the New Lender deliver to the
Agent a duly completed certificate (a "NOVATION
CERTIFICATE"), substantially in the form of Part I of
Schedule 5, with such amendments as the Agent
approves to achieve a substantially similar effect
(which may be delivered by fax and confirmed by
delivery of a hard copy original but the fax will be
effective irrespective of whether confirmation is
received); and
(ii) the Agent executes it (which the Agent shall promptly
do).
(b) Each Party (other than the Existing Lender and the New Lender)
irrevocably authorises the Agent to execute any duly completed
Novation Certificate on its behalf.
(c) To the extent that they are expressed to be the subject of the
novation in the Novation Certificate:
(i) the Existing Lender and the other Parties (the
"EXISTING PARTIES") will be released from their
obligations to each other (the "DISCHARGED
OBLIGATIONS");
(ii) the New Lender and the existing Parties will assume
obligations towards each other which differ from the
discharged obligations only insofar as they are owed
to or assumed by the New Lender instead of the
Existing Lender;
(iii) the rights of the Existing Lender against the
existing Parties and vice versa (the "DISCHARGED
RIGHTS") will be cancelled; and
(iv) the New Lender and the existing Parties will acquire
rights against each other which differ from the
discharged rights only insofar as they are
exercisable by or against the New Lender instead of
the Existing Lender,
all on the date of execution of the Novation Certificate by
the Agent or, if later, the date specified in the Novation
Certificate.
(d) If the effective date of a novation is after the date a
Request is received by the Agent but before the date the
requested Advance is disbursed to the relevant Borrower, the
Existing Lender shall be obliged to participate in that
Advance in respect of its discharged obligations
notwithstanding that novation, and the New Lender shall
reimburse the Existing Lender for its participation in that
Advance and all interest and fees thereon up to the date of
reimbursement (in each case to the extent attributable to the
discharged obligations) within three Business Days of the
Drawdown Date of that Advance.
26.4 ADDITIONAL GUARANTORS
(a) (i) Subject to Vodafone's prior written consent, AirTouch
or any wholly owned Subsidiary of Vodafone in the
Restricted Group may become an Additional Guarantor.
(ii) The relevant company will become an Additional
Guarantor upon:
(1) the delivery to the Agent of a Guarantor
Accession Agreement duly executed by that
company; and
(2) in the case of AirTouch, delivery to the
Agent of all those other documents listed in
Part II of Schedule 2, in each case in the
agreed form or in such other form and
substance satisfactory to the Agent; and
(3) in the case of any other company, delivery
to the Agent of all those other documents
listed in Part III of Schedule 2, in each
case in the agreed form or in such other
form and substance satisfactory to the
Agent.
(b) The execution of a Guarantor Accession Agreement constitutes
confirmation by the Additional Guarantor concerned that the
representations and warranties set out in
Clauses 15.1 to 15.6 (Representations and Warranties) to be
made by it on the date of the Guarantor Accession Agreement
are correct, as if made with reference to the facts and
circumstances then existing.
26.5 NOVATION OF AIRTOUCH'S OBLIGATIONS
(a) AirTouch may be released from its obligations under this
Agreement (as a Borrower but not as a Guarantor, if
applicable) if the obligations of AirTouch as a Borrower in
respect of each Term-out Advance and Tranche B Advance then
outstanding to AirTouch are novated to Vodafone, in accordance
with the following paragraphs of this Clause 26.5.
(b) Such novation shall take effect on the effective date
specified in the Borrower Novation Agreement referred to in
sub-paragraph (iv) below if:
(i) notice of the proposed novation has been delivered by
Vodafone to the Agent not less than 14 days' prior to
the date of the proposed substitution;
(ii) the effective date of the proposed novation is the
last day of the Interest Period or Term for each
Advance then outstanding to AirTouch;
(iii) no Default is outstanding on the effective date of
the proposed novation; and
(iv) Vodafone enters into a novation agreement (a
"BORROWER NOVATION AGREEMENT") with AirTouch and the
Agent on behalf of the Finance Parties in the form of
Part III of Schedule 5, together with such amendments
as the Agent may reasonably require.
(c) Each Finance Party irrevocably authorises the Agent to sign on
its behalf any Borrower Novation Agreement entered into in
accordance with paragraph (b) above.
(d) To the extent that they are expressed to be the subject of a
novation in any Borrower Novation Agreement entered into in
accordance with paragraph (b):
(i) AirTouch and the other Parties (the "EXISTING
PARTIES") will be released from their obligations to
each other (the "DISCHARGED OBLIGATIONS");
(ii) Vodafone and the other existing Parties will assume
obligations towards each other which differ from the
discharged obligations only insofar as they are owed
to or assumed by Vodafone instead of AirTouch;
(iii) the rights of AirTouch against the existing Parties
and vice versa (the "DISCHARGED RIGHTS") will be
cancelled; and
(iv) Vodafone and the other existing Parties will acquire
rights against each other which differ from the
discharged rights only insofar as they are
exercisable by or against Vodafone instead of
AirTouch.
(e) No Advance may be borrowed by AirTouch on or after the
effective date of a Borrower Novation Agreement entered into
pursuant to this Clause 26.5.
26.6 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 Borrowers' Agent) appoint another
Lender or an Affiliate of a Lender which is not a Reference Bank to
replace that Reference Bank.
26.7 REGISTER
The Agent shall keep a register of all the Parties including in the
case of Lenders the details of their Facility Office notified to the
Agent from time to time, and shall supply any other Party (at that
Party's expense) with a copy of the register on request.
27. DISCLOSURE OF INFORMATION
(a) A Lender may disclose to any of its Affiliates or any person with whom
it is proposing to enter, or has entered into, any kind of transfer,
participation or other agreement in relation to this Agreement:
(i) a copy of any Finance Document; and
(ii) any information which that Lender has acquired under or in
connection with any Finance Document,
provided that a Lender shall not disclose any such information to a
person other than one of its Affiliates unless that person has provided
to that Lender a confidentiality undertaking addressed to that Lender,
AirTouch and Vodafone substantially in the form of Schedule 6 or such
other form as the Borrowers' Agent may approve.
(b) Paragraphs 1(a), 1(c), 2(b), 3, 6, 8, 9 and 11 of Schedule 6 (Form of
Confidentiality Undertaking from New Lender) shall be deemed to be
incorporated herein as if set out in full (MUTATIS MUTANDIS), but as if
references therein to "we" were to each Finance Party and references to
"you" were to Vodafone.
28. SET-OFF
28.1 CONTRACTUAL SET-OFF
Whilst an Event of Default subsists, each Obligor authorises each
Finance Party to apply any credit balance to which that Obligor is
entitled on any account of that Obligor with that Finance Party in
satisfaction of any sum due and payable from that Obligor to that
Finance party under the Finance Documents but unpaid; for this purpose,
each Finance Party is authorised to purchase with the moneys standing
to the credit of any such account such other currencies as may be
necessary to effect such application.
28.2 SET-OFF NOT MANDATORY
No Finance Party shall be obliged to exercise any right given to it by
Clause 28.1.
28.3 NOTICE OF SET-OFF
Any Finance Party exercising its rights under Clause 28.1 shall notify
the Borrowers' Agent promptly after set-off is applied.
29. PRO RATA SHARING
29.1 REDISTRIBUTION
If any amount owing by an Obligor under any Finance Document to a
Finance Party (the "RECOVERING FINANCE PARTY") is discharged by
payment, set-off or any other manner other than through the Agent in
accordance with Clause 9 (Payments) (a "RECOVERY"), then:
(a) the recovering Finance Party shall, within three Business
Days, notify details of the recovery to the Agent;
(b) the Agent shall determine whether the recovery is in excess of
the amount which the recovering Finance Party would have
received had the recovery been received by the Agent and
distributed in accordance with Clause 9 (Payments);
(c) subject to Clause 29.3 (Exception), the recovering Finance
Party shall, within three Business Days of demand by the
Agent, pay to the Agent an amount (the "REDISTRIBUTION") equal
to the excess;
(d) the Agent shall treat the redistribution as if it were a
payment by the Obligor concerned under Clause 9 (Payments) and
shall pay the redistribution to the Finance Parties (other
than the recovering Finance Party) in accordance with Clause
9.7 (Partial payments); and
(e) after payment of the full redistribution, the recovering
Finance Party will be subrogated to the portion of the claims
paid under paragraph (d) above, and that Obligor will owe the
recovering Finance Party a debt which is equal to the
redistribution, immediately payable and of the type originally
discharged.
29.2 REVERSAL OF REDISTRIBUTION
If under Clause 29.1 (Redistribution):
(a) a recovering Finance Party must subsequently return a
recovery, or an amount measured by reference to a recovery, to
an Obligor; and
(b) the recovering Finance Party has paid a redistribution in
relation to that recovery,
each Finance Party shall, within three Business Days of demand by the
recovering Finance Party through the Agent, reimburse the recovering
Finance Party all or the appropriate portion of the redistribution paid
to that Finance Party. Thereupon the subrogation in Clause 29.1(e)
(Redistribution) will operate in reverse to the extent of the
reimbursement.
29.3 EXCEPTIONS
(a) A recovering Finance Party need not pay a redistribution to the extent
that it would not, after the payment, have a valid claim against the
Obligor concerned in the amount of the redistribution pursuant to
Clause 29.1(e) (Redistribution).
(b) A recovering Finance Party is not obliged to share with any other
Finance Party any amount which the recovering Finance Party has
received or recovered as a result of taking legal
proceedings, if the other Finance Party had an opportunity to
participate in those legal proceedings but did not do so and did not
take separate legal proceedings.
30. SEVERABILITY
If a provision of any Finance Document is or becomes illegal, invalid
or unenforceable in any jurisdiction, that shall not affect:
(a) the legality, validity or enforceability in that jurisdiction
of any other provision of the Finance Documents; or
(b) the legality, validity or enforceability in other
jurisdictions of that or any other provision of the Finance
Documents.
31. COUNTERPARTS
This Agreement may be executed in any number of counterparts, and this
has the same effect as if the signatures on the counterparts were on a
single copy of this Agreement.
32. NOTICES
32.1 GIVING OF NOTICES
(a) All notices or other communications under or in connection with this
Agreement shall be given in writing or by facsimile. Any such notice
will be deemed to be given as follows:
(i) if in writing, when delivered; and
(ii) if by facsimile, when received.
However, a notice given in accordance with the above but received on a
non-working day or after business hours in the place of receipt will
only be deemed to be given on the next working day in that place.
(b) Any Party may agree with any other Party to give and receive notices by
telex in which case the notice will be deemed given when the correct
answerback is received.
32.2 ADDRESSES FOR NOTICES
(a) The address and facsimile number of each Party (other than the Agent,
the U.S. Swingline Agent and the Borrowers' Agent) for all notices
under or in connection with this Agreement are:
(i) that notified by that Party for this purpose to the Agent on
or before it becomes a Party; or
(ii) any other notified by that Party for this purpose to the Agent
by not less than five Business Days' notice.
(b) The address and facsimile numbers of the Agent are:
National Westminster Bank Plc
5th Floor, Juno Court
00 Xxxxxxx Xxxxxx
Xxxxxx X0 0XX
Contact: Head of NatWest Agency Group
Telephone: 0000 000 0000
Facsimile: 0171 714 6167
Telex: 922457 NWMAG G
or such other as the Agent may notify to the other Parties by not less
than five Business Days' notice.
(c) The address and facsimile numbers of the U.S. Swingline Agent are:
National Westminster Bank Plc
00 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx
XX 00000
XXX
Contact: Xxx Xxxxxxxxx
Telephone: (000) 000 0000
Facsimile: (000) 000 0000
or such other as the U.S. Swingline Agent may notify to the other
Parties by not less than five Business Days' notice.
(d) The addresses and facsimile numbers of the Borrowers' Agent are:
Vodafone Group Plc
Xxx Xxxxxxxxx
0-0 Xxxxxx Xxxx
Xxxxxxx XX00 0XX
Contact: Group Treasurer
Telephone: 00000 000000
Facsimile: 01635 506746
or such other as the Borrowers' Agent may notify to the other Parties
by not less than five Business Days' notice.
(e) The Agent shall, promptly upon request from any Party, give to that
Party the address or facsimile number of any other Party applicable at
the time for the purposes of this Clause 32.
33. LANGUAGE
(a) Any notice given under or in connection with any Finance Document shall
be in English.
(b) All other documents provided under or in connection with any Finance
Document shall be:
(i) in English; or
(ii) if not in English, accompanied by a certified English
translation and, in this case, the English translation shall
prevail unless the document is a statutory or other official
document.
34. JURISDICTION
34.1 SUBMISSION
(a) For the benefit of each Finance Party, each Obligor agrees that the
courts of England have jurisdiction to settle any disputes in
connection with any Finance Document and accordingly submits to the
jurisdiction of the English courts.
(b) Without prejudice to paragraph (a) above, each Obligor agrees that any
New York State court or Federal court sitting in New York City has
jurisdiction to settle any disputes in connection with any Finance
Document and accordingly submits to the jurisdiction of those courts.
34.2 SERVICE OF PROCESS
Without prejudice to any other mode of service, each Obligor:
(a) (other than an Obligor incorporated in England and Wales)
irrevocably appoints Vodafone as its agent for service of
process relating to any proceedings before the English courts
in connection with any Finance Document (and Vodafone accepts
this appointment);
(b) (other than an Obligor incorporated in the State of New York)
irrevocably appoints AirTouch as its agent for service of
process in relation to any proceedings before any courts in
the State of New York in connection with any Finance Document
(and AirTouch accepts this appointment);
(c) agrees that failure by a process agent to notify the Obligor
of the process will not invalidate the proceedings concerned;
(d) consents to the service of process relating to any such
proceedings by prepaid posting of a copy of the process to its
address for the time being applying under Clause 32.2
(Addresses for notices); and
(e) agrees that if the appointment of any person mentioned in
paragraph (a) or (b) above ceases to be effective, the
relevant Obligor shall immediately appoint a further person in
England or New York, as appropriate, to accept service of
process on its behalf in England or New York, as appropriate,
and, failing such appointment within 15 days, the Agent is
entitled to appoint such a person by notice to the Borrowers'
Agent.
34.3 FORUM CONVENIENCE AND ENFORCEMENT ABROAD
Each Obligor:
(a) waives objection to the English and New York courts on grounds
of inconvenient forum or otherwise as regards proceedings in
connection with a Finance Document; and
(b) agrees that a judgment or order of an English and New York
court in connection with a Finance Document is conclusive and
binding on it and may be enforced against it in the courts of
any other jurisdiction.
34.4 NON-EXCLUSIVITY
Nothing in this Clause 34 limits the right of a Finance Party to bring
proceedings against an Obligor in connection with any Finance Document:
(a) in any other court of competent jurisdiction; or
(b) concurrently in more than one jurisdiction.
34.5 WAIVER OF RIGHT TO TRIAL BY JURY
EACH OF THE PARTIES IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY RIGHT TO TRIAL BY JURY (WHETHER IN NEW YORK OR
ELSEWHERE) OF ANY CLAIM, DEMAND OR CAUSE OF ACTION RELATING IN ANY WAY
TO THIS AGREEMENT, WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE,
AND AGREES THAT ANY PARTY MAY FILE A COPY OF THIS SECTION WITH ANY
COURT AS EVIDENCE OF THE WAIVER OF ITS JURY TRIAL RIGHTS.
35. GOVERNING LAW
This Agreement is governed by English law.
THIS AGREEMENT has been entered into on the date stated at the beginning of this
Agreement.
SCHEDULE 1
PART I
LENDERS AND COMMITMENTS
Column 1 Column 2 Column 3
Lender Tranche A Tranche B Tranche C
Commitments Commitments Commitments
(U.S.$) (U.S.$) (U.S.$)
Bank of America NT & 363,636,360 272,727,270 318,181,820
SA
Banque Nationale de 363,636,360 272,727,270 318,181,820
Paris, London branch
Barclays Bank PLC 363,636,360 272,727,270 318,181,820
Citibank, N.A. 363,636,360 272,727,270 318,181,820
Deutsche Bank AG 363,636,360 272,727,270 318,181,820
London
Xxxxxxx Sachs Credit 363,636,360 272,727,270 318,181,820
Partners, L.P.
ING Bank N.V., 363,636,360 272,727,270 318,181,820
London branch
Midland Bank plc 363,636,360 272,727,270 318,181,820
National Australia 363,636,360 272,727,270 318,181,820
Bank Limited
National Westminster 363,636,400 272,727,300 318,181,800
Bank Plc
Westdeutsche 363,636,360 272,727,270 318,181,820
Landesbank
Girozentrale
Total U.S.$4,000,000,000 U.S.$3,000,000,000 U.S.$3,500,000,000
PART II
SWINGLINE LENDERS AND SWINGLINE COMMITMENTS
Swingline Lender Swingline Commitments
U.S.$
Bank of America NT & SA 83,333,333
Banque Nationale de Paris, New York
branch 83,333,333
Barclays Bank PLC 83,333,334
Citibank, N.A. 83,333,334
Deutsche Bank AG New York branch 83,333,333
Xxxxxxx Xxxxx Credit Partners, L.P. 83,333,333
Midland Bank plc 83,333,333
National Westminster Bank Plc 83,333,334
Westdeutsche Landesbank Girozentrale, New York branch 83,333,333
----------------
TOTAL U.S.$750,000,000
----------------
SCHEDULE 2
CONDITIONS PRECEDENT DOCUMENTS
PART I
TO BE DELIVERED BEFORE THE FIRST ADVANCE
1. CONSTITUTIONAL DOCUMENTS
A copy of the memorandum and articles of association and certificate of
incorporation (or equivalent constitutional documents) of Vodafone and
AirTouch.
2. AUTHORISATIONS
(a) A copy of a resolution of the board of directors of Vodafone and of
AirTouch or, if applicable, of a committee of the board of directors
(together with a copy of the resolution of the board of directors
constituting that committee):
(i) approving the terms of, and the transactions contemplated by,
this Agreement and (in the case of Vodafone) the Fee Letters
and resolving that it execute and, where applicable, deliver
this Agreement and (in the case of Vodafone) the Fee Letters;
(ii) authorising a specified person or persons to execute and,
where applicable, deliver this Agreement and (in the case of
Vodafone) the Fee Letters on its behalf; and
(iii) authorising a specified person or persons, on its behalf, to
sign and/or despatch all documents and notices (including
Requests) to be signed and/or despatched by it under or in
connection with the Finance Documents;
(b) a specimen of the signature of each person authorised by the resolution
referred to in paragraph (a) above;
(c) a certificate of a director of Vodafone confirming that as at the first
Drawdown Date, the borrowing of the Total Commitments in full would not
cause any borrowing limit binding on it to be exceeded (whether as a
result of such limit having been waived or otherwise);
(d) a certificate of the Chief Financial Officer or the Treasurer and
Controller of AirTouch confirming that as at the first Drawdown Date
the borrowing of the Total Commitments in full would not cause any
borrowing limit binding on it to be exceeded;
(e) a certificate of an authorised signatory of Vodafone certifying that
each copy document specified in Part I of this Schedule 2 and supplied
by Vodafone is correct, complete and in full force and effect as at a
date no earlier than the Signing Date; and
(f) a certificate of an authorised signatory of AirTouch certifying that
each copy document specified in Part I of this Schedule 2 and supplied
by AirTouch is correct, complete and in full force and effect as at a
date no earlier than the Signing Date.
3. LEGAL OPINIONS
(a) A legal opinion of Xxxxx & Overy, English law counsel to the Agent, in
relation to English law.
(b) A legal opinion of Xxxxx & Xxxxx, U.S. law counsel to the Agent, in
relation to U.S. law.
(c) A legal opinion of the general-counsel to AirTouch, in relation to U.S.
law.
4. OTHER DOCUMENTS
(a) A copy of the Merger Agreement (in all cases in the form submitted or
referred to by AirTouch and Vodafone to their shareholders) in
connection with the Merger.
(b) A copy of a resolution passed by the shareholders at an extraordinary
general meeting of Vodafone approving the Merger.
(c) A copy of resolutions passed by each class of shareholders at
shareholders' meetings of AirTouch approving the Merger.
(d) A certificate signed by two directors of Vodafone to the effect that:
(i) either (1) the Merger Date has occurred or (2) all conditions
required for closing of the Merger have been satisfied or
waived (other than the filing, with the Secretary of State of
the State of Delaware, of a certificate of merger (and the
taking effect of that certificate on the date specified in
that certificate for the effectiveness of the Merger) and
listing of the new Vodafone shares (including the Vodafone
American Depository Shares) on the relevant stock exchanges)
and, to the best of their knowledge and belief, the Merger
will become effective within five Business Days of the first
Drawdown Date; and
(ii) Closing of the Merger and its becoming effective (taking into
account any conditions imposed by the US Federal
Communications Commission and the California Public Utilities
Commission, any other governmental or other conditions
affecting the Merger after completion and the aggregate cash
receivable by AirTouch shareholders in connection with the
Merger) will not, in the opinion of the executive directors of
Vodafone, materially and adversely impact on the ability of
the enlarged Group to comply with the financial covenants set
out in Clause 17.2 (Financial ratios) until the Final Maturity
Date.
(e) Evidence that:
(i) Vodafone has given notice of prepayment in full of any
outstandings, and notice of cancellation in full of all
commitments, under each of its existing syndicated credit
facilities dated 14th October, 1998 and 12th March, 1998; and
(ii) AirTouch has given notice of prepayment in full of any
outstandings, and notice of cancellation in full of all
commitments, under its existing syndicated credit facility
dated 20th July, 1995,
such prepayment and cancellation, in each case, to take effect no later
than the first Drawdown Date.
PART II
TO BE DELIVERED BY AIRTOUCH IF IT BECOMES AN ADDITIONAL GUARANTOR
1. A Guarantor Accession Agreement, duly executed (if appropriate, under
seal) by AirTouch.
2. A copy of the memorandum and articles of association and certificate of
incorporation (or other equivalent constitutional documents) of
AirTouch or, if already delivered under Part I of this Schedule 2, a
certificate of a director of AirTouch confirming that there have been
no changes to its constitutional documents or attaching copies of any
such changes.
3. A copy of a resolution of the board of directors of AirTouch:
(a) approving the terms of, and the transactions contemplated by,
the Guarantor Accession Agreement and resolving that it
execute the Guarantor Accession Agreement as a deed;
(b) authorising a specified person or persons to execute the
Guarantor Accession Agreement as a deed; and
(c) authorising a specified person or persons, on its behalf, to
sign and/or despatch all documents to be signed and/or
despatched by it under or in connection with this Agreement.
4. If after the Merger Date, a copy of a resolution, signed by all the
holders of the issued or allotted common stock in AirTouch, approving
the terms of, and the transactions contemplated by, the Guarantor
Accession Agreement.
5. If after the Merger Date, a copy of a resolution of the Board of
Directors of each common stock corporate shareholder in AirTouch:
(a) approving the terms of the resolution referred to in paragraph
4 above; and
(b) authorising a specified person or persons to sign the
resolution on its behalf.
6. If the certificate in paragraph 2(d) of Part I of this Schedule 2 has
not then been given, a certificate of a director of AirTouch certifying
that the borrowing of the Total Commitments in full would not cause any
borrowing limit binding on it to be exceeded.
7. A specimen of the signature of each person authorised by the
resolutions referred to in paragraphs 3 and, if applicable, 5 above.
8. Legal opinions of:
(a) Xxxxx & Overy, English law counsel to the Agent in relation to
English law;
(b) Xxxxx & Xxxxx, U.S. law counsel to the Agent, in relation to
U.S. law; and
(c) the general counsel to AirTouch, in relation to U.S. law.
9. A certificate of an authorised signatory of AirTouch certifying that
each copy document specified in Part II of this Schedule 2 is correct,
complete and in full force and effect as a date no earlier than the
date of the Guarantor Accession Agreement.
PART III
TO BE DELIVERED BY AN ADDITIONAL GUARANTOR (OTHER THAN AIRTOUCH)
1. A Guarantor Accession Agreement, duly executed (if appropriate, under
seal) by the Additional Guarantor.
2. A copy of the memorandum and articles of association and certificate of
incorporation (or other equivalent constitutional documents) of the
Additional Guarantor.
3. A copy of a resolution of the board of directors of the Additional
Guarantor:
(a) approving the terms of, and the transactions contemplated by,
the Guarantor Accession Agreement and resolving that it
execute the Guarantor Accession Agreement as a deed;
(b) authorising a specified person or persons to execute the
Guarantor Accession Agreement as a deed; and
(c) authorising a specified person or persons, on its behalf, to
sign and/or despatch all documents to be signed and/or
despatched by it under or in connection with this Agreement.
4. If the lawyers referred to in paragraph 10 below advise it to be
necessary or desirable, a copy of a resolution, signed by all the
holders of the issued or allotted shares in the Additional Guarantor,
approving the terms of, and the transactions contemplated by, the
Guarantor Accession Agreement.
5. A copy of a resolution of the Board of Directors of each corporate
shareholder in the Additional Guarantor:
(a) approving the terms of the resolution referred to in paragraph
4 above; and
(b) authorising a specified person or persons to sign the
resolution on its behalf.
6. A certificate of a director of the Additional Guarantor certifying that
the borrowing of the Total Commitments in full would not cause any
borrowing limit binding on it to be exceeded.
7. 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, and the transactions
contemplated by, the Guarantor Accession Agreement or for the validity
and enforceability of any Finance Document.
8. A specimen of the signature of each person authorised by the
resolutions referred to in paragraphs 3 and, if applicable, 5 above.
9. A copy of the latest annual statutory audited accounts of the
Additional Guarantor.
10. A legal opinion of Xxxxx & Overy, legal advisers to the Agent, and, if
applicable, other lawyers approved by the Agent in the place of
incorporation of the Additional Guarantor addressed to the Finance
Parties.
11. A certificate of an authorised signatory of the Additional Guarantor
certifying that each copy document specified in Part III of this
Schedule 2 is correct, complete and in full force and effect as at a
date no earlier than the date of the Guarantor Accession Agreement.
SCHEDULE 3
CALCULATION OF THE MANDATORY COST
(a) The Mandatory Cost for an Advance (other than a Swingline Advance) is
the rate determined by the Agent to be the rate) calculated in
accordance with the following formulae:
in relation to an Advance denominated in Sterling:
BY + S(Y-Z) + F X 0.01 % per annum = Mandatory Cost
----------------------
100-(B + S)
in relation to any other Advance:
F X 0.01 % per annum = Mandatory Cost
--------
300
where on the day of application of the formula:
B is the percentage of the Agent's eligible liabilities (in
excess of any stated minimum) which the Bank of England
requires the Agent to hold on a non-interest-bearing deposit
account in accordance with its cash ratio requirements;
Y is the LIBOR applicable to that Advance;
S is the percentage of the Agent's eligible liabilities which
the Bank of England requires the Agent to place as a special
deposit;
Z is the interest rate per annum allowed by the Bank of England
on special deposits; and
F is the charge payable by the Agent to the Financial Services
Authority under paragraph 2.02 or 2.03 (as appropriate) of the
Fees Regulations (but where for this purpose, the figure in
paragraph 2.02b and 2.03b will be deemed to be zero) expressed
in pounds per (pound)1 million of the fee base of the Agent.
(b) For the purposes of this Schedule 3:
(i) "ELIGIBLE LIABILITIES" and "SPECIAL DEPOSITS" have the
meanings given to them at the time of application of the
formula by the Bank of England;
(ii) "FEE BASE" has the meaning given to it in the Fees
Regulations; and
(iii) "FEES REGULATIONS" means any regulations governing
the payment of fees for banking supervision.
(c) In the application of the formula, B, Y, S and Z are included in the
formula as figures and not as percentages, e.g. if B = 0.5% and Y =
15%, BY is calculated as 0.5 x 15.
(d) Each rate calculated in accordance with the formula is, if necessary,
rounded upward to five decimal places.
(e) If the Agent determines that a change in circumstances has rendered, or
will render, the formula inappropriate, the Agent (after consultation
with the Lenders and the Borrowers' Agent) shall notify the Borrowers'
Agent of the manner in which the Mandatory Cost will subsequently be
calculated. The manner of calculation so notified by the Agent shall,
in the absence of manifest error, be binding on all the Parties.
SCHEDULE 4
FORM OF REQUEST
To: NATIONAL WESTMINSTER BANK Plc as [Agent/U.S. Swingline Agent*]
From: [BORROWER]
Date: [ ]
VODAFONE GROUP PLC - U.S.$10,500,000,000 CREDIT AGREEMENT
DATED 16th April, 1999
1. We wish to utilise Tranche A* and/or*/Tranche B* and/or Tranche C*
and/or the Swingline Facility* by way of Advances*/Swingline Advances*
as follows:
(a) Drawdown Date: Tranche A: [ ]*
Tranche B: [ ]*
Tranche C: [ ]*
Swingline Facility: [ ]*
(b) Requested Amount (including currency): Tranche A: [ ]*
Tranche B: [ ]*
Tranche C: [ ]*
Swingline Facility: [ ]*
(c) Interest Period/Term*: Tranche A: [ ]*
Tranche B: [ ]*
Tranche C: [ ]*
Swingline Facility: [ ]*
(d) Payment Instructions: Tranche A: [ ]*
Tranche B: [ ]*
Tranche C: [ ]*
Swingline Facility: [ ]*
(e) Maturity Date: Tranche A: [ ]*
(for Term-out Advance
only)*
2. We confirm that each condition specified in [Clause 4.2 (Conditions to
first drawdown)] [Clause 4.3 (Conditions to further drawdowns and
rollovers)]** is satisfied on the date of this Request and this Advance
would not cause any borrowing limit binding on us to be exceeded.
------------------------------------
* Delete as appropriate.
** Delete as applicable depending on whether first Advance or subsequent
Advance.
[By: By:
[BORROWER] [Vodafone Group Plc
Authorised Signatory] Authorised Signatory]***
--------------------------------
*** Only required where AirTouch is the Borrower.
SCHEDULE 5
FORMS OF ACCESSION DOCUMENTS
PART I
NOVATION CERTIFICATE
To: NATIONAL WESTMINSTER BANK Plc as Agent
From: [THE EXISTING LENDER] and [THE NEW LENDER] Date: [ ]
Vodafone Group Plc - U.S.$10,500,000,000 Term and Revolving Credit Agreement
Dated 16th April, 1999
We refer to Clause 26.3 (Procedure for novations).
1. We [ ] (the "EXISTING LENDER") and [ ] (the "NEW LENDER")
agree to the Existing Lender and the New Lender novating all the
Existing Lender's rights and obligations referred to in the Schedule
in accordance with Clause 26.3 (Procedure for novations).
2. The specified date for the purposes of [Clause 26.3(c) (Procedure for
novations)] is [date of novation].
3. The Facility Office and address for notices of the New Lender for the
purposes of Clause 32.2 (Addresses for notices) are set out in the
Schedule.
4. This Novation Certificate is governed by English law.
THE SCHEDULE
RIGHTS AND OBLIGATIONS TO BE NOVATED
[DETAILS OF THE RIGHTS AND OBLIGATIONS OF THE EXISTING LENDER TO BE NOVATED.]
[NEW LENDER]
[Facility Office Address for notices]
[Existing Lender] [New Lender] [ ]
By: By: By:
Date: Date: Date:
PART II
GUARANTOR ACCESSION AGREEMENT
To: NATIONAL WESTMINSTER BANK Plc as Agent
From: [PROPOSED GUARANTOR]
Date: [ ]
Vodafone Group Plc - U.S.$10,500,000,000 Term and Revolving Credit Agreement
Dated 16th April, 1999 (The "Credit Agreement")
We refer to Clause 26.4 (Additional Guarantors).
We, [name of company] of [Registered Office] (Registered no. [ ]) agree to
become an Additional Guarantor and to be bound by the terms of the Credit
Agreement as an Additional Guarantor in accordance with Clause 26.4 (Additional
Guarantors).
Our address for notices for the purposes of Clause 32.2 (Addresses for notices)
is:
[
]
This Deed is governed by English law.
Executed as a deed by ) Director
[PROPOSED GUARANTOR] )
acting by ) Director/Secretary
and )
PART III
FORM OF BORROWER NOVATION AGREEMENT
THIS NOVATION AGREEMENT is dated [ ] and made BETWEEN:
(1) AIRTOUCH COMMUNICATIONS, INC. (the "EXISTING BORROWER");
(2) VODAFONE GROUP Plc (the "SUBSTITUTE BORROWER");
(3) VODAFONE GROUP Plc on behalf of itself and each Obligor (as defined in
the Credit Agreement referred to below) other than AirTouch (the
"BORROWERS' AGENT"); and
(4) NATIONAL WESTMINSTER BANK Plc as agent (the "AGENT") on behalf of
itself and the Lenders (as defined in the Agreement referred to below),
and is supplemental to the Term and Revolving Credit Agreement dated 16th April,
1999 and made between, among others, the Existing Borrower, the Substitute
Borrower, the Agent and the financial institutions listed in Schedule 1 thereto
(the "CREDIT AGREEMENT").
IT IS AGREED:
1. NOVATION
(a) In consideration of a payment made by the Existing Borrower to the
Substitute Borrower and the release of the Existing Borrower from all
of its obligations and liabilities (actual and contingent) as a
Borrower (but not as a Guarantor if applicable) under the Finance
Documents, the Substitute Borrower hereby undertakes, on and with
effect from [ ], [ ] (the "EFFECTIVE DATE"), to observe and perform all
the obligations and liabilities (actual or contingent) of the Existing
Borrower under the Finance Documents.
(b) On and with effect from the Effective Date, AirTouch will cease to be
entitled to borrow under the Facilities.
2. INTEGRATION
This Novation Agreement shall be read as one with the Credit Agreement
so that any reference therein to "this Agreement", "hereunder" and
similar shall include and be deemed to include this Novation Agreement.
The Agent and the Borrowers' Agent agree that this Novation Agreement
is a Finance Document.
3. CONTINUING LIABILITY
The Borrowers' Agent (on behalf of itself and each other Guarantor (if
any)) acknowledges and confirms that the Guarantors' obligations under
Clause 14 (Guarantee) of the Credit Agreement apply to the obligations
and liabilities assumed by the Substitute Borrower hereunder.
4. GOVERNING LAW
This Agreement shall be governed by, and construed in accordance with,
the laws of England.
IN WITNESS whereof the parties hereto have caused this Novation
Agreement to be duly executed on the date first written above.
.......................................
For and on behalf of AirTouch Communications, Inc.
.......................................
For and on behalf of
Vodafone Group Plc
.......................................
Vodafone Group Plc
for itself as Borrowers' Agent and on behalf of each
other (if any) Borrower and Guarantor
.......................................
National Westminster Bank Plc
for itself and on behalf of each
Finance Party
SCHEDULE 6
FORM OF CONFIDENTIALITY UNDERTAKING
FROM NEW LENDER
To: [Existing Lender];
Vodafone Group Plc; and
AirTouch Communications, Inc.
Dear Sirs,
We refer to the U.S.$10,500,000,000 Term and Revolving Credit Agreement dated
16th April, 1999 (the "CREDIT AGREEMENT") between, among others, Vodafone
Group plc and National Westminster Bank Plc (as Agent).
This is a confidentiality undertaking referred to in Clause 27 (Disclosure of
information) of the Credit Agreement. A term defined in the Credit Agreement has
the same meaning in this undertaking.
We are considering entering into contractual relations with [insert name of
Lender] (the "EXISTING LENDER") and understand that it is a condition of our
receiving information about Vodafone Group Plc and its related companies and any
Finance Document and/or any information under or in connection with any Finance
Document (the "INFORMATION") that we execute this undertaking.
1. CONFIDENTIALITY UNDERTAKING
We undertake (a) to keep the Confidential Information confidential and
not to disclose it to anyone except as provided for by paragraph 2
below and to ensure that the Confidential Information is protected with
security measures and a degree of care that would apply to our own
confidential information, (b) to use the Confidential Information only
for the Permitted Purpose, (c) to use all reasonable endeavours to
ensure that any person to whom we pass any Confidential Information
(unless disclosed under paragraph 2(b) below) acknowledges and complies
with the provisions of this letter as if that person were also a party
to it and (d) 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 Facilities, other than directly
to the Group Treasurer of Vodafone.
2. PERMITTED DISCLOSURE
You agree that we may disclose Confidential Information:
(a) to members of the Purchaser 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 Purchaser Group;
(b) 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 Purchaser 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 Purchaser Group.
3. NOTIFICATION OF REQUIRED OR UNAUTHORISED DISCLOSURE
We agree (to the extent permitted by law) to inform you of the full
circumstances of any disclosure under paragraph 2(b) or upon becoming
aware that Confidential Information has been disclosed in breach of
this letter.
4. RETURN OF COPIES
If you so request in writing, we shall return all Confidential
Information supplied by you to us and destroy or permanently erase all
copies of Confidential Information made by us and use all reasonable
endeavours to ensure that anyone to whom we 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 we 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 2 (b) above.
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 we become a party to the Facilities or (b)
twelve months after we have returned all Confidential Information
supplied to us by you and destroyed or permanently erased all copies of
Confidential Information made by us (other than any such Confidential
Information or copies which have been disclosed under paragraph 2 above
(other than sub-paragraph 2(a)) or which, pursuant to paragraph 4
above, are not required to be returned or destroyed).
6. CONSEQUENCES OF BREACH, ETC.
We acknowledge and agree that you or members of the Group (each a
"RELEVANT PERSON") may be irreparably harmed by the breach of the terms
hereof and damages may not be an adequate remedy; each Relevant Person
may be granted an injunction or specific performance for any threatened
or actual breach of the provisions of this letter by any member of the
Purchaser Group.
7. NO WAIVER; AMENDMENTS, ETC.
This letter sets out the full extent of our obligations of
confidentiality owed to you in relation to the information the subject
of this letter. No failure or delay in exercising any right, power or
privilege hereunder 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 hereunder. The terms of this letter and our obligations
hereunder may only be amended or modified by written agreement between
us.
8. INSIDE INFORMATION
We 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 we undertake not to use
any Confidential Information for any unlawful purpose.
9. NATURE OF UNDERTAKINGS
The undertakings given by us under this letter are given to you and
(without implying any fiduciary obligations on your part) are also
given for the benefit of each other member of the Group.
10. GOVERNING LAW AND JURISDICTION
This 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.
11. DEFINITIONS
In this letter:
"CONFIDENTIAL INFORMATION" means any information relating to Vodafone,
AirTouch, the AirTouch Group, the Group and/or the Facilities provided
to us by you or any of your Affiliates or advisers, in whatever form,
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 us before the date the information is disclosed to us by you or any
of your affiliates or advisers or is lawfully obtained by us
thereafter, other than from a source which is connected with the Group
and which, in either case, as far as we are aware, has not been
obtained in violation of, and is not otherwise subject to, any
obligation of confidentiality;
"PERMITTED PURPOSE" means considering and evaluating whether to
enter into the Facilities; and
"PURCHASER GROUP" means us, each of our holding companies and
subsidiaries and each subsidiary of each of our holding companies (as
each such term is defined in the Companies Act 1985).
Yours faithfully
....................
For and on behalf of
[New Lender]
SIGNATORIES
BORROWERS
VODAFONE GROUP Plc
By: XXX XXXXX
AIRTOUCH COMMUNICATIONS, INC.
By: XXXXX XXXX
ARRANGERS
BANK OF AMERICA
INTERNATIONAL LIMITED
By: XXXX X. XXXXX, Xx.
BANQUE NATIONALE DE PARIS
By: X. XXX XXX
BARCLAYS CAPITAL
By: XXXXX XXXXXXX
CITIBANK, N.A.
By: XXXXXX XXXXXXX
DEUTSCHE BANK AG LONDON
By: X.X. XXXX X. XXXXX
XXXXXXX XXXXX INTERNATIONAL
By: XXXXXXX XXXXXX
GREENWICH NATWEST LIMITED
By: XXXXXX XxXXXXX
HSBC INVESTMENT BANK plc
By: X. XXXXXX
ING BANK N.V., London branch
By: X.X. XXXXXX X.X. XXXXXXXXXXX
NATIONAL AUSTRALIA BANK LIMITED
By: X.X. XXXXXX X.X. XXXXXXXX
WESTDEUTSCHE LANDESBANK GIROZENTRALE
By: XXXXXXXXX XXXXXXXXX XXXXXX XXXXXXXXX
LENDERS
BANK OF AMERICA NT & SA
As Lender and Swingline Lender
By: XXXXX X. XXXXXXX
BANQUE NATIONALE DE PARIS, London branch
As Lender
By: XXXXXX XXXXXXXXX XXXXXXX X. XXXXXX
BANQUE NATIONALE DE PARIS, New York branch
As Swingline Lender
By: XXXXXX XXXXXXXXX XXXXXXX X. XXXXXX
BARCLAYS BANK PLC
As Lender and Swingline Lender
By: XXXXX XXXXXXX
CITIBANK, N.A.
As Lender and Swingline Lender
By: XXXXXX XXXXXXX
DEUTSCHE BANK AG LONDON
As Lender
By: X.X. XXXX X. XXXXX
DEUTSCHE BANK AG, New York branch
As Swingline Lender
By: X.X. XXXX X. XXXXX
XXXXXXX XXXXX CREDIT PARTNERS, L.P.
As Lender and Swingline Lender
By: XXXXXXX XXXXXX
ING BANK N.V., London branch
As Lender
By: X.X. XXXXXX X.X. XXXXXXXXXXX
MIDLAND BANK plc
As Lender and Swingline Lender
By: X.X. XXXXXX
NATIONAL AUSTRALIA BANK LIMITED
As Lender
By: X.X. XXXXXXXX X.X. XXXXXX
NATIONAL WESTMINSTER BANK Plc
As Lender and Swingline Lender
By: XXXXXX X. XXXXXXX
WESTDEUTSCHE LANDESBANK GIROZENTRALE
As Lender
By: XXXXXXXXX XXXXXXXXX XXXXXX XXXXXXXXX
WESTDEUSCHE LANDESBANK GIROZENTRALE, New York branch
As Swingline Lender
By: XXXXXXXXX XXXXXXXXX XXXXXX XXXXXXXXX
AGENT
NATIONAL WESTMINSTER BANK Plc
By: XXXX X. XXXXX
U.S. SWINGLINE AGENT
NATIONAL WESTMINSTER BANK Plc
By: XXXX X. XXXXX
