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BARCLAYS TREASURY LOAN
DATED 26TH JUNE 1998
BARCLAYS TREASURY LOAN
OFFER LETTER
Barclays Bank PLC (the "Bank") is pleased to offer a Barclays Treasury Loan
Facility (the "Facility"), on the terms and conditions set out in this document
and the attached further Special Conditions (if any), to:
Name(s) REGENT GROUP LTD Address 00 XXXXXXXX XXXXXX XXXXXX X0X 0XX
Company Registration No. 2339001 (the "Borrower")
Type of Borrower: Company
References in this document to Conditions are references to the numbered terms
and conditions set out below.
Conditions precedent
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The following documents, each in form and substance satisfactory to the Bank,
shall be delivered to the Bank prior to drawdown of the Facility, in addition to
those specified in Condition 2.1:
Completion of a guarantee from Unidigital Inc in the sum of (pound) 400,000.
together with a legal opinion containing the ability of the guarantor to give
the guarantee
Completion of a cross guarantee and debenture from:
Regent Group Ltd Company No 2339001
Elements UK Ltd Company No 2888039
Regent Communications (UK) Ltd Company No 1525936
If interest is to be calculated initially on a Fixed Rate Basis, a Maximum Rate
Basis or a Minimax Rate Basis pursuant to the provisions set out below under the
heading "Interest", no drawdown shall be permitted until the Borrower and the
Bank have agreed the relevant fixed rate, maximum rate and/or minimum rate (as
the case may be), and the Borrower has paid to the Bank the relevant interest
rate management fee (if any), in accordance with those provisions.
Amount, term and drawdown
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Amount: (pound) 400,000.
Term: 3 (Three) years from first drawdown.
The Facility may be drawn in one amount by 23rd July 1998 (the "Final Drawdown
Date").
Purpose of facility
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The Facility shall be used only for the following purpose(s):
The purchase of the assets of Five Star Finishers Ltd and to cover the
refurbishment cost of Regent Group Ltd
Repayment
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Repayment shall be made:
in 36 instalments of principal of (pound) 11,111.11, payable monthly
commencing 1 month after first drawdown (with interest debited to current
account).
Where relevant, the instalment amounts specified above are subject to adjustment
under Condition 3.
Prepayment
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Prepayment is permitted, in full or in minimum amounts of (pound) 11,111.11 and
multiples of (pound)11,111.11, in accordance with Condition 4. A prepayment fee
will be payable on the date of each prepayment, in accordance with Condition 4.3
or 4.4.
Fees
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The Borrower shall pay to the Bank:
(a) an arrangement fee of (pound) 3,000. and a security fee of (pound) 200 on
acceptance of this offer, by debit to current account;
(b) an agreed management fee of (pound) 0 per annum (subject to review in
accordance with Condition 6.2) payable annually in arrears, by debit to
current account;
Interest
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Interest shall be payable in accordance with Condition 5. The Bank's margin in
respect of the Facility (the "Margin) shall be 2.4 % per annum. Subject to the
provisions of Condition 5, during the period commencing on the date of first
drawdown and ending on the last Business Day of the period specified below (the
"First Interest Review Date"), interest shall be calculated:
LIBOR Basis (other than Maximum Rate basis or Minimax Rate Basis): at a
rate equal to the aggregate of (i) the Margin, (ii) LIBOR (the London
Inter-Bank Offered Rate) and (iii) the Associated Costs Rate, during the
period ending on the third anniversary of the date of this offer.
Following the First Interest Review Date, interest shall be calculated on
the basis and at the rates established in accordance with Condition 5.
Condition 5 contains provisions under which the basis on which interest is
calculated may change from time to time during the term of the Facility -
see Condition 5.3 to 5.5.
Unless the Bank otherwise agrees in writing, interest shall be debited
either to current account or to Loan account, as specified above under the
heading "Repayment", throughout the term of the Facility, save that during
any period while interest is calculated on a Maximum Rate Basis or a
Minimax Rate Basis interest shall be debited to current account.
Security/Guarantee(s)
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The Borrower's obligations in respect of the Facility (and all other present and
future obligations of the Borrower to the bank) are to be secured/guaranteed by:
A cross guarantee and debenture from the following companies
Regent Group Ltd
Regent Communications (UK) Ltd
Elements (UK) Ltd
A parental guarantee from Unidigital Inc
and any other security/guarantees now or hereafter held by the Bank. The bank
may from time to time require any security to be professionally valued, at the
Borrower's expense.
Financial Covenants
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The Borrower/Parent shall procure that:
(a) Total Operating Profit for each Relevant Period shall exceed five times
Gross Financing Costs for such Relevant Period (Gross Interest Cover);
(b) Net Tangible Assets shall at all times exceed:
(i) (pound) 2,000,000. (Minimum NTA);
(c) Gross Borrowings shall not at any time exceed 75 % of Net Tangible Assets
(Gross Borrowings Gearing);
Covenants (a), (b), and (c) above shall apply to the Borrower and its
Subsidiaries and shall be tested by reference to the accounts of the Borrower or
(as the case may be) the Parent in accordance with Condition 11 (and the
definitions set out in Condition 1.1).
Meaning of "Relevant Parties" and "The Parent"
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In this document (and the attached further Special Conditions, if any):
(a) "Relevant Parties" means, where referred to in Conditions 10 (General
Undertakings) and 12 (Events of Default):
(i) the Borrower, each guarantor (if any) named above under the heading
"Security/Guarantee(s)" and, where named in paragraph (b) below, the
Parent;
(ii) UK/all Subsidiaries of the Borrower
(each a "Relevant Party");
(b) "Parent" means
Unidigital Inc (Name)
of 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000, U.S.A (Address)
(Parent Company Registration No. 00-0000000 (IRS Employer ID))
Barclays Treasury Loan
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Terms and Conditions
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1. Definitions and Interpretation
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1.1 In this document, expressions defined in the attached Offer Letter have
the meanings given to them there and in addition:
"Associated Costs Rate" means the percentage rate per annum (rounded up to
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the next 1/16%) calculated in accordance with the Bank's standard formula
current from time to time to reflect its costs resulting from requirements
of the Bank of England or other regulatory authorities or agencies,
whether having the force of law or otherwise, affecting the conduct of the
Bank's business;
"Base Rate" means the rate of interest published by the Bank as its
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base rate from time to time;
"Base Rate Basis" means a basis for calculating interest on the Loan at a
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rate equal to the aggregate of the Margin and the Base Rate;
"Business Day" means a day (other than a Saturday or Sunday) on which
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the Bank is open for business;
"Cumulative Retained Profits" means the cumulative aggregate of the
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consolidated retained profits (after tax and dividends) of the Borrower
and its Subsidiaries (or, where the Financial Covenants are expressed in
the Offer Letter to apply to the Parent and its Subsidiaries, the Parent
and its Subsidiaries) in each financial year of the Borrower or (as the
case may be) the Parent ending after the date of its most recent audited
consolidated accounts as at the date of this offer and a copy of which has
been delivered to the Bank. For the purposes of this definition, in
calculating consolidated profits, any consolidated losses shall be
ignored;
"Encumbrance" includes any mortgage, charge, pledge, lien (other than a
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lien arising solely by operation of law in the ordinary course of business
and securing amounts not more than 90 days overdue for payment),
assignment by way of security, hypothecation, security interest or other
agreement or arrangement which results in (or has substantially the same
commercial effect as) the creation of security (but excluding title
retention agreements or arrangements entered into in the ordinary course
of trading and not otherwise falling within this definition) and any right
on the part of any person to call for the creation of any of the
foregoing, in each case whether relating to existing or future assets;
"Event of Default" means any one of the events mentioned in Condition
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12;
"Financial Covenants" means the covenants set out in the Offer Letter
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in paragraphs (a), (b), (c) and (d) under the heading "Financial
Covenants";
"Fixed Rate Basis" means a basis for calculating interest on the Loan
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at a fixed rate over a fixed period;
"Gross Borrowings" means all indebtedness incurred in respect of borrowed
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money (together with any fixed premium on repayment) of the Borrower and
its Subsidiaries (or, where the Financial Covenants are expressed in the
Offer Letter to apply to the Parent and its Subsidiaries, the Parent and
its Subsidiaries) and shall be deemed to include (without limitation):
(i) the capitalised value of obligations under any hire purchase
agreements and finance leasing agreements (as determined in
accordance with applicable accounting standards);
(ii) indebtedness evidenced by bonds, debentures, loan stock, notes,
commercial paper or similar instruments;
(iii) the nominal amount of any share capital expressed to be
redeemable;
(iv) indebtedness (including contingent liabilities) arising under or
by virtue of (a) acceptance credits, (b) debt factoring, invoice
or xxxx discounting or note purchase facilities (save to the
extent that there is no right of recourse against the Borrower
(or, as the case may be, the Parent) or any of its Subsidiaries),
(c) deferred payment for assets or services (other than normal
trade credit), (d) guarantees, indemnities or other assurances
against financial loss in respect of any indebtedness specified
in this definition of any other person, (e) counter-indemnities
in respect of letters of credit, bonds, guarantees, indemnities
or similar obligations issued or created in favour of third
parties and (f) any other transaction having substantially the
same commercial effect as any of the foregoing, including
(without limitation) those where liabilities are not shown as
borrowings on a balance sheet by reason of being contingent,
conditional or otherwise;
"Gross Financing Costs" means in respect of any Relevant Period, all
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interest, acceptance commission, payments under interest rate management
arrangements (whether by way of swap, cap, collar, floor, option, forward
rate agreement or otherwise) and other continuing regular or periodic
costs, charges and expenses in the nature of interest (whether paid,
payable or capitalised and including the interest element in hire purchase
and finance leasing charges) incurred by the Borrower and its Subsidiaries
(or, where the Financial Covenants are expressed in the Offer Letter to
apply to the Parent and its Subsidiaries, the Parent and its Subsidiaries)
during such Relevant Period in effecting, servicing or maintaining
borrowings or borrowing facilities;
"Interest Period" means for so long as a LIBOR Basis applies, a period of
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three, six or twelve months (or such other period as may be agreed between
the Borrower and the Bank) commencing on the date on which the Facility is
first drawn down or (where a LIBOR Basis is selected after first drawdown
pursuant to Condition 5.3 or 5.5) on the date upon which such LIBOR Basis
first takes effect or on the last day of the immediately preceding
Interest Period (as the case may be), in each case as selected by the
Borrower by notice received by the Bank not later than 12.00 noon on the
first day of the relevant Interest Period, provided that:
(i) while interest is capitalised and debited to Loan account, or a
Maximum Rate Basis or a Minimax Rate Basis applies, each Interest
Period shall be a period of 3 months;
(ii) if the Borrower fails to select the duration of an Interest
Period in the manner and by the time mentioned above, the
duration of that Interest Period shall be 3 months;
(iii) an Interest Period that would otherwise extend beyond an Interest
Review Date or the final date for repayment of the Loan shall be
shortened to end on such date;
(iv) in respect of second and subsequent drawings under the Facility
made while a LIBOR Basis applies, the first Interest Period
relating to the remainder of the Loan so that all drawings shall
be consolidated;
(v) if a repayment date (other than the final repayment date) falls
during an Interest Period, the Loan shall be divided into two
tranches, one being of an amount equal to that to be repaid on
such repayment date and having an Interest Period ending on such
repayment date and the other being of an amount equal to the
remainder of the Loan and having an Interest Period of a duration
established in accordance with the other provisions of this
definition;
(vi) the duration of any Interest Period may be adjusted by the Bank
in accordance with Condition 7.3; and
(vii) following a demand for repayment of the Loan pursuant to
Condition 12, each Interest Period for any unpaid amount shall be
of such duration as the Bank may in its sole discretion deem
appropriate;
"Interest Review Date" means the First Interest Review Date and any
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subsequent date on which the basis for calculating interest is to be
reviewed under Condition 5.3(c);
"LIBOR" means, in relation to any Interest Period:
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(i) for so long as a Maximum Rate Basis or a Minimax Rate Basis
applies, the percentage rate per annum determined by the Bank to
be its offered quotation for 3 month sterling deposits which
appears on the display designated as page "LIBP" on the Xxxxxx
Monitor Money Rates Service (or such other page or service as the
Bank may notify to the Borrower as having replaced such page or
service for the purpose of displaying London Inter-Bank Offered
Rates) as at 11.00 a.m. on the first day of the relevant Interest
Period; or
(ii) for so long as (a) a LIBOR Basis (other than a Maximum Rate Basis
or a Minimax Rate Basis) applies or (b) a Maximum Rate Basis or a
Minimax Rate Basis applies but no such display rate, as is
mentioned in (i) above is available at the relevant time, the
percentage rate per annum at which the Bank offers sterling
deposits (in amounts comparable to the Loan or the relevant part
of it) to prime banks in the London Inter-Bank Market (or, if the
Bank is not offering such deposits, the percentage rate per annum
determined by the Bank to be its cost of funds from whatever
source it may select) on the first day of the relevant Interest
Period for a period equal or comparable to such Interest Period;
"LIBOR Basis" means a basis for calculating interest on the Loan at a rate
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equal to the aggregate of (i) the Margin, (ii) LIBOR and (iii) the
Associated Costs Rate (whether or not LIBOR is subject to a Maximum Rate
and/or a Minimum Rate);
"Loan" means the aggregate principal amount (including any interest
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capitalised and debited to Loan account and any other amount debited to
Loan account pursuant to Condition 7.2) drawn and for the time being
outstanding under the Facility;
"Management Fee Review Date" means an Interest Review Date and, in
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addition, if the period from any Interest Review Date to the next Interest
Review Date shall be longer than 3 years, the last Business Day of each
consecutive period of 3 years during such period;
"Maximum Rate" means, in relation to any period while interest on the Loan
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is calculated on a Maximum Rate Basis or a Minimax Rate Basis, the maximum
rate for LIBOR agreed between the Bank and the Borrower in accordance with
the provisions overleaf under the heading "Interest" or the provisions of
Condition 5.3 or 5.6;
"Maximum Rate Basis" means a LIBOR Basis in respect of which the Bank and
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the Borrower have agreed that LIBOR shall be subject to an agreed maximum
rate (but not a minimum rate) for an agreed period;
"Minimax Rate Basis" means a LIBOR Basis in respect of which the Bank and
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the Borrower have agreed that LIBOR shall be subject to an agreed maximum
rate and an agreed minimum rate for an agreed period;
"Minimum Rate" means, in relation to any period while interest on the Loan
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is calculated on a Minimax Rate Basis, the minimum rate for LIBOR agreed
between the Bank and the Borrower in accordance with the provisions in the
Offer Letter under the heading "Interest" or the provisions of Condition
5.3 or 5.6;
"Net Tangible Assets" means the aggregate of the amount paid up or
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credited as paid up on the issued share capital and the amount standing to
the credit of the consolidated capital and revenue reserves (including
share premium account, capital redemption reserve and profit and loss
account) of the Borrower and its Subsidiaries (or, where the Financial
Covenants are expressed in the Offer Letter to apply to the Parent and its
Subsidiaries, the Parent and its Subsidiaries) but after deducting:
(i) goodwill (including goodwill arising on consolidation) and other
intangible assets;
(ii) (to the extent included) any reserve created by any upward
revaluations of fixed assets made after the date of its most
recent audited accounts as at the date of this offer and a copy
of which has been delivered to the Bank;
(iii) (to the extent included) amounts attributable to minority
interests and deferred taxation;
(iv) any debit balance on profit and loss account, (but so that no
amount shall be included or excluded more than once);
"Potential Event of Default" means an event which, with the giving of
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notice, the lapse of time or the making of any determination, would or
might constitute an Event of Default;
"Property Value" means the aggregate value (as determined from time to
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time by the Bank or, at the expense of the Borrower, by professional
valuers acceptable to the Bank on such bases and assumptions as the Bank
may in its discretion require) of each freehold and leasehold property
from time to time charged to the Bank by way of first charge as security
for the Borrower's obligations hereunder;
"Relevant Periods" means each consecutive period of three months during a
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financial year of the Borrower (or, where the Financial Covenants are
expressed in the Offer Letter to apply to the Parent and its Subsidiaries,
the Parent) and, in addition, each period of twelve months ending on the
last day of a financial year of the Borrower (or, as the case may be, the
Parent) (each a "Relevant Period");
"Subsidiary" means a subsidiary undertaking as defined in Section 258 of
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the Companies Xxx 0000 and "Subsidiaries" shall be construed accordingly;
"Total Liabilities" means the aggregate amount of all liabilities
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(including, without limitation, any amounts attributable to minority
interests, deferred taxation, provisions and share capital expressed to be
redeemable) of the Borrower and its Subsidiaries (or where the Financial
Covenants are expressed in the Offer Letter to apply to the Parent and its
Subsidiaries, the Parent and its Subsidiaries), to the extent that they
would be included in a balance sheet under accounting principles and
practices generally accepted in the United Kingdom;
"Total Operating Profit" means in respect of any Relevant Period, the
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consolidated total operating profit for continuing operations,
acquisitions (as a component of continuing operations) and discontinued
operations (as set out in Financial Reporting Standard No. 3) of the
Borrower and its Subsidiaries (or, where the Financial Covenants are
expressed in the Offer Letter to apply to the Parent and its Subsidiaries,
the Parent and its Subsidiaries) but ignoring any exceptional items; and
"VAT" means value added tax or any similar tax substituted for it from
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time to time.
1.2 References to statutory provisions are references to provisions of United
Kingdom statutes and shall include references to any amended, extended or
re-enacted version with effect from the date on which it comes into force.
1.3 References to the Borrower, the Parent or the Bank shall include
references to their respective successors and assigns.
1.4 If the Borrower is a partnership or otherwise comprises more than one
person, the obligations of each such person shall be joint and several
obligations and references to the Borrower shall be construed as including
a reference to each such person. In the event of death, bankruptcy,
winding up or dissolution of any one or more such persons, the obligations
of the other such persons shall continue in full force and effect.
1.5 References to "indebtedness" shall include any obligation for the payment
or repayment of money (whether present or future, actual or contingent).
1.6 References to a time of the day are references to the time in London.
1.7 Headings are for ease of reference only and shall be ignored in construing
this document.
2. Drawdown
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2.1 Conditions Precedent: The Facility will become available to the Borrower
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for drawing only upon receipt by the Bank of the following in form and
substance satisfactory to the Bank:
(a) this document signed by or on behalf of the Borrower (and, if the
Borrower comprises more than one person, by or on behalf of each
such person) and, where applicable, the Parent;
(b) if the Borrower is or includes a company, a certified true copy of a
resolution of its board of directors:
(i) accepting the Facility on the terms and conditions set out
herein;
(ii) authorising a specified person or persons to countersign
this document;
(iii) specifying the names of those officers of the Borrower whose
instructions (jointly or alone) the Bank is authorised to
accept in all matters concerning the Facility, together with
confirmed specimen signatures of those officers and each of
the persons referred to in (ii) above, if not already known
to the Bank;
(c) where the Parent is named in this document, a certified true copy of
a resolution of the board of directors of the Parent approving this
document and authorising a specified person or persons to
countersign it;
(d) the security/guarantee documents (if any) referred to in the Offer
Letter under the heading "Security/Guarantee(s)" duly executed by
the chargors/guarantors specified therein together with such other
documents relating to them as the Bank may require; and
(e) the additional documents (if any) specified in the Offer Letter
under the heading "Conditions Precedent".
2.2 Drawdown Requests: Each request by the Borrower for a drawing under the
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Facility shall be made by the Borrower giving notice to the Bank (which
shall be irrevocable), specifying the drawdown date (being a Business Day
on or before the Final Drawdown Date) and the amount required, by not
later than 10.00 a.m. on (a) the proposed drawdown date if interest is to
be calculated on a Base Rate Basis or (b) the second Business Day prior to
the proposed drawdown date if interest is to be calculated on a Fixed Rate
Basis or a LIBOR Basis. Drawings will be made available by the Bank by
credit to the Borrower's current account with the Bank.
2.3 Time and Amounts: No drawings may be made otherwise than in accordance
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with the provisions in the Offer Letter under the heading "Amount, Term
and Drawdown". If interest is to be calculated initially on a Fixed Rate
Basis, a Maximum Rate Basis or a Minimax Rate Basis pursuant to the
provisions overleaf under the heading "Interest", the Borrower shall
request drawings on the date or dates (and in the amount or amounts)
agreed between the Bank and the Borrower when the relevant fixed rate or
(as the case may be) maximum or minimum rate was agreed or (where
applicable) on the drawdown dates (and in the amounts) specified in the
attached Special Conditions, if any); drawings on any other date or dates
(or in other amounts) may not be made without the consent of the Bank. In
the event of any breach of this Condition 2.3, the Borrower shall
indemnify the Bank in accordance with Condition 15.1 and shall, in
addition, pay to the Bank on demand an administration fee of (pound)250.
2.4 Default: No drawing may be made if, as of the drawdown date, an Event of
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Default or Potential Event of Default shall have occurred and shall not
have been remedied to the satisfaction of the Bank or would occur if such
drawing were made.
3. Repayment
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3.1 Time and Amounts: Subject to the provisions of this Condition 3, the
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Borrower shall repay the Loan at the times and in the amounts specified or
referred to in the Offer Letter under the heading "Repayment".
3.2 Reduction of Instalments: If the whole of the Facility shall not have been
------------------------
drawn down by the Final Drawdown Date and the Loan is to be repaid in
instalments, the repayment instalments specified or referred to in the
Offer Letter under the heading "Repayment" shall be reduced pro rata.
3.3 Review of Instalments: If the Bank agrees that interest on the Loan is to
---------------------
be capitalised and debited to Loan account, the amount of each repayment
instalment specified or referred to in the Offer Letter under the heading
"Repayment" will be reviewed by the Bank annually and also on each
Interest Review Date and on each occasion that the basis on which interest
on the Loan is calculated changes in accordance with Condition 5. The Bank
will advise the Borrower of any variation to the repayment instalments and
the Borrower shall thereafter be bound to repay the Loan in such
instalments.
4. Prepayment and cancellation
---------------------------
4.1 Prepayment: The Borrower may at any time prepay all or (except while
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interest is calculated on a Fixed Rate Basis, a Maximum Rate Basis or a
Minimax Rate Basis) any part (being in the minimum amount and multiple
specified in the Offer Letter under the heading "Prepayment") of the Loan,
together with (a) interest accrued to the date of prepayment on the amount
prepaid if required by the Bank, (b) the fee calculated in accordance with
Condition 4.3 or 4.4 and (c) any amount payable pursuant to Condition 15,
on giving not less than 7 days' notice in writing to the Bank (which shall
be irrevocable), provided that while interest is calculated on a LIBOR
Basis prepayment may be made only on the last day of an Interest Period
relating to the amount prepaid.
4.2 Application: Any amount prepaid pursuant to Condition 4.1 shall satisfy,
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to the extent of such prepayment, the Borrower's obligations under
Condition 3 and such amount shall be applied so as to reduce those
obligations in reverse order. No amount prepaid may be redrawn.
4.3 Prepayment Fee (Fixed Rate Basis/Minimax Rate Basis): The amount of the
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repayment fee payable in respect of any prepayment (whether pursuant to
Condition 4.1 or otherwise) made while interest is calculated on a Fixed
Rate Basis or a Minimax Rate Basis shall be (pound)250, together with any
amount payable pursuant to Condition 15.
4.4 Prepayment Fee (LIBOR Basis/Base Rate Basis): The amount of the prepayment
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fee payable in respect of any prepayment (whether pursuant to Condition
4.1 or otherwise) made while interest is calculated on LIBOR Basis (other
than a Minimax Rate Basis) or a Base Rate Basis shall be an amount equal
to 0% flat on the amount prepaid, together with any amount payable
pursuant to Condition 15.
4.5 Cancellation: The Borrower shall be entitled, subject to the prior payment
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to the Bank of any amount payable pursuant to Condition 15.1 in connection
with such cancellation, to cancel the whole or any part of the undrawn
Facility (being in a multiple of (pound)1,000) by giving not less than 7
days' notice in writing to the Bank, whereupon the amount of the Facility
shall be reduced accordingly.
5. Interest
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5.1 Basis and Rate: The Borrower shall pay interest on the daily outstanding
--------------
amount of the Loan at the rate and times and in the manner specified in
this Condition. Subject to the provisions of this Condition 5, interest
will be calculated until the First Interest Review Date on the basis
specified in the Offer Letter under the heading "Interest" and thereafter
on the basis and at the rates established in accordance with Condition
5.3.
5.2 (a) Base Rate Basis: If and for so long as a Base Rate Basis applies,
interest shall accrue at the rate per annum equal to the aggregate of
the Margin and the Base Rate from time to time.
(b) Fixed Rate Basis: If and for so long as a Fixed Rate Basis applies,
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interest shall accrue at the fixed rate of interest per annum
established in accordance with the provisions overleaf under the
heading "Interest" or (as the case may be) agreed pursuant to
Condition 5.3 or 5.4.
(c) LIBOR Basis: If and for so long as a LIBOR Basis applies, interest
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shall be calculated by reference to Interest Periods and shall accrue
in respect of each Interest Period at the rate per annum equal to the
aggregate of (i) the Margin, (ii) LIBOR for that Interest Period and
(iii) the Associated Costs Rate, provided that (aa) while a Maximum
Rate Basis or a Minimax Rate Basis applies, if LIBOR for any Interest
Period is higher than the applicable Maximum Rate, such Maximum Rate
shall be substituted for LIBOR in respect of that Interest Period, and
(bb) while a Minimax Rate Basis applies, if LIBOR for any Interest
Period is lower that the applicable Minimum Rate, such Minimum Rate
shall be substituted for LIBOR in respect of that Interest Period.
(d) Payment Dates: Interest at the rates so determined will, subject to
the provisions of Condition 5.8, be payable in arrear by the Borrower
on (i) in the case of a Base Rate Basis, the Bank's usual quarterly
charging dates in March, June, September and December in each year,
(ii) in the case of a LIBOR Basis, the last day of each Interest
Period (and, in the case of an Interest Period of longer than six
months, also at the end of each period of six months during such
Interest Period) or (iii) in the case of a Fixed Rate Basis, at the
end of each consecutive period of 1 or 3 months (which period the
Borrower shall irrevocably elect before the commencement of such Fixed
Rate Basis) from the date of commencement of such Fixed Rate Basis
and, in each case, on the day on which the Loan is finally repaid.
5.3 (a) Interest Review: Shortly before each Interest Review Date, the
---------------- Bank will notify the Borrower in writing of its right
to select the basis on which interest will be charged until the next
Interest Review Date (or, where relevant, until the final repayment
date). Such basis will be at the option of the Borrower and will be
either (i) a Base Rate Basis or (ii) a Fixed Rate Basis at a
percentage rate per annum fixed for a fixed period, within the
remaining term of the Facility, of between one and ten years (or such
other period as the Bank may at its discretion offer) or (iii) (unless
a Base Rate Basis applied immediately prior to such Interest Review
Date and the amount of the Loan is less than(pound)100,000) a LIBOR
Basis (which may, at the discretion of the Bank, include a Maximum
Rate Basis and/or a Minimax Rate Basis for a fixed period, within the
remaining term of the Facility, of between one and ten years (or such
other period as the Bank may at its discretion offer)). If the period
from the relevant Interest Review Date to the final repayment date is
less than one year, the Borrower will not have the option of selecting
a Fixed Rate Basis, a Maximum Rate Basis or a Minimax Rate Basis.
(b) Selection of Basis: The Borrower must notify the Bank of the basis so
------------------
selected by it (and, if the Borrower selects a Fixed Rate Basis, a
Maximum Rate Basis or a Minimax Rate Basis, the Borrower and the Bank
must have agreed the relevant period and fixed rate, maximum rate or
maximum rate and minimum rate (as the case may be) and the Borrower
must have paid the relevant interest rate management fee (if any)), in
each case by not later than 10.00 a.m. on the Interest Review Date,
failing which interest will be calculated on a Base Rate Basis from
the Interest Review Date until (subject to Conditions 5.4, 5.5 and
5.6) the next following Interest Review Date.
(c) Review Dates: The basis for calculating interest on the Loan shall be
------------
reviewed under this Condition 5.3 on the First Interest Review Date,
at the end of any period for which a Fixed Rate Basis, a Maximum Rate
Basis or a Minimax Rate Basis applies and at the end of each period of
three years during which a LIBOR Basis (other than a Maximum Rate
Basis or a Minimax Rate Basis) or a Base Rate Basis applies.
5.4 Change to Fixed Rate Basis: The Borrower shall have the right, at any time
--------------------------
after the Final Drawdown Date while interest is calculated on a Base Rate
Basis and during the last 5 Business Days of any Interest Period while
interest is calculated on a LIBOR Basis (other than a Maximum Rate Basis
or a Minimax Rate Basis), to request the Bank to quote fixed percentage
rates per annum for a fixed period, within the remaining term of the
Facility, of between one and ten years (or such other period as the Bank
may at its discretion offer). If the Bank and the Borrower shall agree
that any such fixed rate shall apply, a Fixed Rate Basis at the relevant
fixed rate shall apply for the relevant period with effect from:
(a) the date of such agreement where interest is then calculated on a
Base Rate Basis; or
(b) the last day of the then current Interest Period where interest is
then calculated on a LIBOR Basis.
5.5 Change to LIBOR Basis: The Borrower shall have the right, at any time
----------------------
after the Final Drawdown Date while interest is calculated on a Base Rate
Basis (provided that the amount of the Loan is then not less than
(pound)100,000 and that the period from the date with effect from which a
LIBOR Basis would apply as mentioned below to the final repayment date of
the Loan is not less than 12 months), to require the basis on which
interest on the Loan is calculated to be changed to a LIBOR Basis (but
not, under this Condition 5.5, to a Maximum Rate Basis or a Minimax Rate
Basis). Such right shall be exercisable by the Borrower giving not less
than 30 days' notice in writing to the Bank specifying the date (being a
Business Day) upon which such change is to take effect. Interest shall
thereafter be calculated on a LIBOR Basis until (subject to Conditions 5.4
and 5.6) the next Interest Review Date.
5.6 Change to Maximum Rate Basis or Minimax Rate Basis: The Borrower shall
---------------------------------------------------
have the right, at any time after the Final Drawdown Date while interest
is calculated on a Base Rate Basis and during the last 5 Business Days of
any Interest Period while interest is calculated on a LIBOR Basis (other
than a Maximum Rate Basis or a Minimax Rate Basis) (provided in each case
that the amount of the Loan is then not less than (pound)100,000 in the
case of a change to a Maximum Rate Basis and (pound)250,000 in the case of
a change to a Minimax Rate Basis) to request the Bank to quote maximum
and/or maximum and minimum LIBOR rates (and associated interest rate
management fees) that the Bank would offer for a fixed period, within the
remaining term of the Facility, of between one and ten years (or such
other period as the Bank may at its discretion offer). If the Bank and the
Borrower shall agree that any such maximum rate or maximum and minimum
rate shall apply and the Borrower shall pay to the Bank the relevant
interest rate management fee, a Maximum Rate Basis or (as the case may be)
Minimax Rate Basis shall apply for the relevant period with effect from:
(a) the date of such agreement where interest is then calculated on a
Base Rate Basis; or
(b) the last day of the then current Interest Period where interest is
then calculated on a LIBOR Basis.
5.7 Accrual; Default Rate: Interest shall accrue from day to day (as well
-----------------------
after as before judgement) and be calculated on the basis of the actual
number of days elapsed and a 365 day year. Any sum (whether in respect of
interest, fees, costs or otherwise) which the Borrower fails to pay when
due may, at the discretion of the Bank, be treated as if it were part of
the Loan for the purposes of this Condition 5 and the Bank shall be
entitled to increase the rate of interest payable on any such sum by 1%
per annum from the date on which the relevant sum became payable. The Bank
shall be entitled, on or at any time after the Borrower's failure to pay
any sum due in respect of the Facility on the due date or the occurrence
of any other Event of Default while a LIBOR Basis or a Fixed Rate Basis
applies, by notice to the Borrower to change the basis on which interest
is charged (either in relation to the unpaid sum only or in relation to
all sums then outstanding in respect of the Facility) to a Base Rate
Basis. If the Bank so changes the basis on which interest is charged in
relation to the whole or part of the Loan before the end of an agreed
period for which a Fixed Rate Basis, a Maximum Rate Basis or a Minimax
Rate Basis applies, the Borrower shall be deemed, for the purposes only of
Conditions 4.3, 4.4 and 15.1 to have prepaid the Loan or the relevant part
of it on the date on which the Bank notifies the Borrower of such change
and accordingly a prepayment fee shall be payable on such date in
accordance with Condition 4.3 or (as the case may be) 4.4 together with
any sums payable pursuant to Condition 15.
5.8 Capitalisation: The Bank may (except while interest on the Loan is
--------------
calculated on a Maximum Rate Basis or a Minimax Rate Basis), at its
discretion, permit the whole or any part of the interest accruing on the
Loan to be capitalised, in which event the amount of any such interest
shall be added to the principal amount of the Loan and shall accordingly
be debited to the Borrower's Loan account on such dates as the Bank may
require. Repayment instalments thereafter shall be reviewed by the Bank
periodically in accordance with Condition 3.3.
6. Fees
----
6.1 General: The Borrower shall pay the fees specified in the Offer Letter
-------
under the heading "Fees".
6.2 Review of Agreed Management Fees: The Bank shall be entitled, with effect
--------------------------------
from any Management Fee Review Date, from time to time to review and vary
the amount of the agreed management fee payable pursuant to paragraph (b)
under the heading "Fees" in the Offer Letter, by notice to the Borrower
given shortly before the relevant Management Fee Review Date. Unless the
whole of the Loan shall be prepaid in accordance with Condition 4.1 during
the period of 90 days following the relevant Management Fee Review Date,
the Borrower shall thereafter be obliged to pay the management fee as so
notified by the Bank. In the absence of any such notification prior to a
Management Fee Review Date, the amount of the management fee payable by
the Borrower until the next following Management Fee Review Date shall be
that specified in the Offer Letter or, if higher, the amount (if any) most
recently so notified by the Bank.
6.3 Non-utilisation Fee: The non-utilisation fee will be calculated on a daily
-------------------
basis from the date falling 3 months after the date of acceptance by the
Borrower of this offer on the undrawn and uncancelled portion of the
Facility and will be payable quarterly in arrear and on the Final Drawdown
Date or (if earlier) the date on which the Facility becomes fully drawn.
6.4 Interest Rate Management Fee: The Borrower shall pay to the Bank, on the
------------------------------
date on which any Maximum Rate Basis or Minimax Rate Basis is agreed
between the Bank and the Borrower, a non-returnable interest rate
management fee in the amount (if any) required by the Bank in
consideration of its agreement to charge interest on the Loan in
accordance with the relevant Maximum Rate Basis or a Minimax Rate Basis.
7. Payments
--------
7.1 No withholding: All payments by the Borrower under the Facility, whether
--------------
of principal, interest, fees, costs or otherwise, shall be made in full,
without set-off or counterclaim and free and clear of any deduction or
withholding on account of tax or otherwise. If the Borrower is required by
law to make any deduction or withholding from any payment under the
Facility, the sum due from the Borrower in respect of such payment shall
be increased to the extent necessary to ensure that, after the making of
such deduction or withholding, the Bank receives a net sum equal to the
sum which it would have received had no such deduction or withholding been
required.
7.2 Debits: Without prejudice to Condition 5.8, the Bank may, at its
------
discretion, debit any sums (whether in respect of principal, interest,
fees, costs or otherwise) due from the Borrower to the Bank under the
Facility to any account of the Borrower with the Bank, notwithstanding
that any such debit results in a debit balance or an increased debit
balance on the relevant account.
7.3 Adjustment of Dates: The Bank shall be entitled to adjust the dates for
--------------------
the making of payments under the Facility, and the duration of Interest
Periods, where in the Bank's opinion it is necessary to do so in order to
comply with the practice from time to time prevailing in the London
Inter-Bank Market or any other financial market relevant for the purposes
of the Facility.
7.4 VAT
---
All sums payable by the Borrower to the Bank in connection with the
Facility shall be paid together with any VAT that may be payable on such
sums, at the rate then required by law.
8. Representations and Warranties
------------------------------
8.1 Representations: By accepting this offer, the Borrower represents and
---------------
warrants (or, if the Parent is named in the Offer Letter, the Borrower and
the Parent jointly and severally represent and warrant) that:
(a) Power and Authority: the Borrower is legally empowered to borrow the
-------------------
full amount of the Facility on the terms set out herein and the
Borrower (and, where applicable, the Parent) has taken all necessary
action to authorise the acceptance of the Facility and the performance
of its obligations hereunder and under the other documents to be
entered into by it in connection with the Facility and that there is
no legal or other restriction whatsoever on its ability to perform its
obligations in respect of the Facility;
(b) Power of Guarantors: any person named in the Offer Letter under the
--------------------
heading "Security/Guarantee(s)" is legally empowered to give the
security or guarantee referred to therein; and
(c) No Default: no Event of Default or Potential Event of Default has
-----------
occurred and is continuing.
8.2 Repetition: The foregoing representations and warranties shall be deemed
----------
to be repeated on the date of the first drawing under the Facility and on
each day thereafter, by reference to the circumstances then existing.
9. Information
-----------
The Borrower (and, where the Parent is named in the Offer Letter, the
Parent) will provide the Bank with:
(a) Accounts: copies of its audited (or, if the Borrower is a partnership,
--------
certified) accounts, including a balance sheet and profit and loss
account (or, if the Borrower is a trustee, income and expenditure
accounts), consolidated if the Borrower or (as the case may be) the
Parent has Subsidiaries, as soon as they are available and not later
than 180 days from the end of each of its financial years and its
unaudited interim statements (if they are required by the Bank) within
90 days after the end of each half year;
(b) Management Accounts: if any of the Financial Covenants apply to the
--------------------
Facility, copies of its unaudited quarterly management accounts
relating to each Relevant Period, including a balance sheet and profit
and loss account, consolidated if the Borrower or (as the case may be)
the Parent has Subsidiaries, as soon as they are available and not
later than 30 days from the end of the Relevant Period to which they
relate; and
(c) Other Information: any other information which the Bank may request
------------------
from time to time.
10. General Undertakings
--------------------
While any part of the Loan is outstanding or the Facility remains
available for drawing, the Borrower undertakes (and, if the Parent is
named in the Offer Letter, the Borrower and the Parent jointly and
severally undertake) to procure that unless the Bank in its absolute
discretion otherwise agrees in writing:
(a) Pari Passu Ranking: the obligations of the Borrower (and, if
--------------------
applicable, the Parent) in respect of the Facility shall at all times
rank at least pari passu with all its other present and future
unsecured obligations;
(b) Negative Pledge: no Relevant Party shall create or agree to create or
---------------
permit to subsist (other than in favour of the Bank) any Encumbrance,
except Encumbrances in existence at the date of this offer and full
details of which were disclosed in writing to the Bank prior to the
date provided that the amount secured by any such Encumbrance is not
at any time increased;
(c) Disposals: no Relevant Party will sell, transfer or otherwise dispose
---------
of the whole or any substantial part of its undertaking, property,
assets or revenues, whether by a single transaction or a number of
transactions (other than in the ordinary course of trading);
(d) Change of Business: no Relevant Party will make any material change in
------------------
the scope or nature of its business;
(e) Insurance: each Relevant Party shall maintain adequate insurance in
---------
relation to its business and assets with reputable underwriters or
insurance companies against risks usually insured by persons carrying
on a business such as that carried on by such Relevant Party and such
other risks as the Bank may from time to time reasonably require;
(f) Litigation: it will forthwith, upon becoming aware of it, inform the
---------
Bank of any material litigation, arbitration or administrative
proceeding pending or, to the best of its knowledge, information and
belief, threatened against any Relevant Party;
(g) Notification of Event of Default: it will forthwith, upon becoming
---------------------------------
aware of it, inform the Bank of the occurrence of any Event of Default
or Potential Event of Default (and the steps, if any, being taken to
remedy it);
(h) Change in Partnership: if the Borrower is a partnership, the Borrower
---------------------
shall notify the Bank in writing immediately of any change in the
membership of the partnership and whenever possible such notification
shall be given in advance of such change; and
(i) Change of Trustee: if the Borrower comprises one or more trustees, the
-----------------
Borrower shall give to the Bank not less than 28 days' prior written
notice of the proposed retirement of any trustee or the appointment of
any new trustee (which shall not be effected without the prior written
consent of the Bank) and shall notify the Bank in writing immediately
upon the death of any trustee or the dissolution of any firm or
corporation acting as trustee.
11. Financial covenants
-------------------
11.1 Testing: The Financial Covenants shall be tested by reference to the most
-------
recent audited accounts (or, where appropriate, audited consolidated
accounts) or unaudited interim statements of the Borrower or (as the case
may be) the Parent from time to time delivered to the Bank pursuant to
Condition 9 (a) or by reference to the quarterly management accounts of
the Borrower or (as the case may be) the Parent. Notwithstanding the
foregoing, the Financial Covenants set out in paragraphs (b) and (c) in
the Offer Letter are to be satisfied at all times and the Borrower or (as
the case may be) the Parent shall if so required by the Bank from time to
time provide the Bank with evidence of such satisfaction acceptable to the
Bank.
11.2 Changes in Accounting Principles: The Borrower or (as the case may be) the
--------------------------------
Parent shall promptly notify the Bank of any proposed change in accounting
principles to be adopted for the purposes of its audited accounts from
those on the basis of which it is most recent audited accounts as at the
date of this offer were prepared. If the Bank is of the opinion that any
such change materially affects any of the Financial Covenants, it shall be
entitled to require such covenants to be amended in such manner as it may
deem appropriate to reflect such change.
11.3 Calculations: All calculations for the purposes of the Financial Covenants
------------
and the related expressions defined in Condition 1.1 shall be in
accordance with accounting principles and practices generally accepted in
the United Kingdom consistently applied.
12. Events of default
-----------------
In the event of:
(a) Payment Default: failure by the Borrower to make any repayment of
----------------
principal, or payment of interest or other sum, in respect of the
Facility on its due date; or
(b) Other Breaches: a breach by any Relevant Party in the performance of
---------------
any other obligation, covenant or undertaking under or in connection
with the Facility or any guarantee or security held by the Bank in
respect of the Facility; or
(c) Cross Default: any indebtedness of any Relevant Party becoming
--------------
immediately due and payable, or capable of being declared so due and
payable, prior to its stated maturity by reason of the occurrence of
any event of default (howsoever described), or any Relevant Party
failing to discharge any indebtedness on its due date (other than a
liability which such Relevant Party shall then be contesting in good
faith on the basis of favourable legal advice); or
(d) Misrepresentation: any representation or warranty made, or any
-----------------
information provided, by any Relevant Party in connection with the
Facility being incorrect in any material respect when made or repeated
or provided; or
(e) Winding-up and Administration: a petition being presented, an order
------------------------------
being made or an effective resolution being passed for winding up any
Relevant Party (except for the purposes of a reconstruction or
amalgamation on terms previously approved in writing by the Bank) or a
petition being presented for an administration order in respect of any
Relevant Party; or
(f) Appointment of Liquidator: an encumbrancer taking possession or a
--------------------------
liquidator, provisional liquidator, administrator, receiver, trustee,
sequestrator or similar officer being appointed in respect of all or
any of the assets of any Relevant Party; or
(g) Legal Process: a distress, execution, attachment or other legal
--------------
process being levied, enforced or sued out against any of the assets
of any Relevant Party and not being discharged or paid within seven
days; or
(h) Suspension of Payments: any Relevant Party suspending payment of its
----------------------
debts or being unable to pay its debts as they fall due or being
deemed, under Section 123 of the Insolvency Xxx 0000, to be unable to
pay its debts; or
(i) Rescheduling of Debts: any Relevant party proposing or entering into a
---------------------
voluntary arrangement (within the meaning of Section 1 of the
Insolvency Act 1986) or taking or being subjected to any proceedings
under any law, or commencing negotiations with one or more of its
creditors, for the readjustment, rescheduling or deferment of all or a
material part of its debts, or proposing or entering into any general
assignment or composition with or for the benefit of its creditors; or
(j) Bankruptcy, Death or Mental Disorder: the presentation of a bankruptcy
------------------------------------
petition against, or the application for an interim order under
Section 253 of the Insolvency Xxx 0000 in respect of, or in the
insolvency, death or mental disorder (within the meaning of the Mental
Health Act 1983) of, any Relevant Party; or
(k) Cessation of Consents; Invalidity: the cessation or revocation for any
---------------------------------
reason of any consent, authorization, licence and/or exemption which
is required to enable any Relevant Party to carry on all or any
material part of its business, or to ensure that the terms of this
document or any security or guarantee held by the Bank in relation to
the Facility are valid, binding and enforceable, or it becoming
unlawful for any Relevant Party to perform all or any of its
obligations hereunder or thereunder or any such document not being or
ceasing to be legal, valid and binding on it; or
(l) Termination of Guarantee: any guarantor giving or purporting to give
notice to terminate its liabilities under any guarantee in respect of
the Facility; or
(m) Material Adverse Change: there being an adverse change in the
-------------------------
financial or trading position or prospects of any Relevant Party
which, in the Bank's reasonable opinion, is material; or
(n) Change of Control: if the Borrower is a company, control of the
------------------
Borrower (or, if the Parent is named in the Offer Letter, the Parent)
passing or having passed to any person or persons, acting either
individually or in concert, who did not control the Borrower (or, as
the case may be, the Parent) at the date of this offer, without the
prior written consent of the Bank ("control" having the meaning
ascribed to it in relation to a body corporate by Section 840 of the
Income and Corporation Taxes Act 1988); or
(o) Change in Partnership: if a Relevant Party is a partnership, a change
---------------------
in the partnership which constitutes such Relevant Party for any
reason, without the prior written consent of the Bank; or
(p) Change of Trustee: if the Borrower comprises one or more trustees, any
-----------------
trustee ceases to act as such or any new trustee is appointed, without
the prior written consent of the Bank; or
(q) Analogous Events: any event occurring in relation to any Relevant
-----------------
Party in any applicable jurisdiction which has an effect substantially
similar to any of the events specified above, then, in any such case,
the Bank's commitment to advance any undrawn balance of the Facility
shall cease and the sole amount of the outstanding Loan and all
accrued interest and other amounts owing under the Facility will
become repayable forthwith on demand in writing being made by the Bank
at any time.
13. Costs and exprenses
-------------------
The Borrower shall reimburse to the Bank on demand on a full indemnity
basis (whether or not the Facility is drawn down) all valuation and legal
fees and other out of pocket expenses (including VAT) incurred by the Bank
in connection with any revaluation of any security held by the Bank or the
enforcement or preservation by the Bank of its rights under this document
(and the documents referred to herein).
14. Change of circumstances
-----------------------
14.1 Increased Cost: In the event of any change in applicable law or regulation
--------------
or the existing requirements of, or new requirements being imposed by, the
Bank of England or other regulatory authority (whether or not having the
force of law) the result of which, in the sole opinion of the Bank, is to
increase the cost to it of funding, maintaining or making available the
Loan (or any undrawn amount of the Facility) or to reduce the effective
return to the Bank, then the Borrower shall pay to the Bank on demand such
sum as may be certified by the Bank to the Borrower as being necessary to
compensate the Bank for such increased cost or such reduction.
14.2 Illegality: If it is or becomes unlawful for the Bank to give effect to
----------
its obligations in respect of the Facility or to fund or maintain the
Facility, the Bank may notify the Borrower to that effect, whereupon the
Borrower shall immediately repay the Loan together with all other amounts
payable by the Borrower in respect of the Facility.
15. Indemnities
-----------
15.1 General: The Borrower shall indemnify the Bank on demand (without
-------
prejudice to the Bank's other rights) for any cost, expense, loss or
liability suffered or incurred by the Bank in consequence of, (a) the
Borrower breaching its obligations under Condition 2.3 or otherwise not
drawing down the full amount of the Facility (where relevant, in the
amounts and on the dates specified in the attached Special Conditions (if
any) or otherwise agreed between the Bank and the Borrower) after agreeing
a Fixed Rate Basis or a LIBOR Basis (whether or not a Maximum Rate Basis
or a Minimax Rate Basis) with the Bank in accordance with the provisions
in the Offer Letter under the heading "Interest", (b) any default or delay
by the Borrower in the payment of any amount when due in respect of the
Facility, (c) the occurrence or continuance of any Event of Default or
Potential Event of Default, (d) all or part of the Loan being prepaid or
becoming repayable, while interest is calculated on a LIBOR Basis or after
a LIBOR Basis has been agreed in accordance with the provisions in the
Offer Letter under the heading "Interest" or Condition 5, otherwise than
on the last day of the then current Interest Period (or, while interest is
calculated on a Maximum Rate Basis or a Minimax Rate Basis, otherwise than
on the dates and in the amounts required in accordance with these
Conditions) or (e) all or part of the Loan being prepaid or becoming
repayable, while interest is calculated on a Fixed Rate Basis or after a
Fixed Rate Basis has been agreed in accordance with the provisions in the
Offer Letter under the heading "Interest" or Condition 5, otherwise than
on the dates and in the amounts required in accordance with these
Conditions.
15.2 Losses Covered: Without derogation from the generality of Condition 15.1,
--------------
the indemnity contained in that Condition shall extend to any loss
(including loss of margin), expense or liability sustained or incurred by
the Bank in liquidating or re-deploying funds acquired or committed to
make, fund or maintain the Loan or any part of it, or in liquidating or
varying transactions entered into in order to match, hedge or fund the
Loan or any part of it and shall also extend to interest, fees and
expenses paid or payable by the Bank on account of any funds borrowed in
order to fund any unpaid amount arising as a result of non-payment by the
Borrower of any amount due from it hereunder.
15.3 Calculations: In calculating amounts payable under Conditions 15.1 and
------------
15.2 the Bank may:
(a) make or attempt to make arrangements from time to time such as hedging
or swap arrangements to ensure the payment to it of all or part of the
sums contemplated by this document or the financial equivalent;
(b) refer from time to time to any agreement or agreements to which it is
a party providing for transactions which are substantially the reverse
of or hedge or fund in whole or in part the transactions contemplated
herein; and
(c) take all reasonable steps to make arrangements to avoid, mitigate or
reduce the losses or the risk of losses which would or which, in the
opinion of the Bank, might otherwise arise from termination of any
such arrangements; and losses arising therefrom shall be treated as
losses incurred as a result of the matters referred to in Conditions
15.1 and 15.2 after taking into account, as far as appropriate, the
discharge or reduction of the obligations of the Bank and other such
factors as the Bank shall reasonably determine to be relevant.
15.4 Currency Indemnity: If, for any reason, any amount payable by the Borrower
------------------
in respect of the Facility is paid or recovered in a currency (the "other
currency") other than that in which it is required to be paid (the
"contractual currency"), then, to the extent that the payment to the Bank
(when converted at the then applicable rate of exchange) falls short of
the amount unpaid, the Borrower shall, as a separate and independent
obligation, fully indemnify the bank on demand against the amount of the
shortfall. For the purposes of this paragraph the expression "rate of
exchange" means the rate at which the Bank is able as soon as practicable
after receipt to purchase the contractual currency in London with the
other currency.
16. Miscellaneous
-------------
16.1 Notifications Binding: All notifications or determinations (including,
----------------------
without limitation, any determination of an amount payable pursuant to
Condition 15) given or made by the Bank shall be conclusive and binding on
the Borrower, except in the case of manifest error.
16.2 Assignment: The Borrower may not assign or transfer any of its rights in
----------
respect of the Facility. The Bank may assign or transfer all or any of its
rights and/or obligations in respect of the Facility, in whole or in part,
to any person or persons and may disclose to any actual or prospective
assignee or transferee (or to any other person (i) in connection with a
securitisation of all or any part of the Bank's loan assets from time to
time or (ii) who may otherwise enter into contractual relations with the
Bank in relation hereto) any information relevant to the Facility in the
Bank's possession relating to the Borrower, the Parent and their
respective Subsidiaries on terms that such recipient is to treat in
confidence any confidential information so disclosed to it.
16.3 Set-off: Any sum of money at any time standing to the credit of the
-------
Borrower with Bank in any currency upon any account or otherwise may be
applied by the Bank, at any time after the occurrence of an Event of
Default (without notice to the Borrower), in or towards the payment or
discharge of any indebtedness now or subsequently owing to the Bank by the
Borrower and the Bank may use any such money to purchase any currency or
currencies required to effect such application.
16.4 Remedies: No delay or omission on the part of the Bank in exercising any
--------
right or power in respect of the Facility shall impair such right or
power, and any single or partial exercise shall not preclude any other or
further exercise of any such right or power or the exercise of any other
right or power. The rights and remedies of the Bank in respect of the
Facility are cumulative and not exclusive of any right or remedy provided
by law.
16.5 Failure to Agree: The Bank shall not be under any liability to the
------------------
Borrower in the event of any failure to agree a fixed rate, a maximum
and/or minimum rate or an interest rate management fee pursuant to the
provisions on in the Offer Letter under the heading "Interest" or
Condition 5.
17. Notices
-------
Every notice, request or other communication shall:
(a) be in writing delivered personally or by prepaid first class letter or
facsimile transmission;
(b) be deemed to have been received by the Borrower, in the case of a
letter when delivered personally or 48 hours after it has been sent by
first class post or, in the case of a facsimile transmission, at the
time of transmission (provided that if the date of transmission is not
a Business Day it shall be deemed to have been received at the opening
of business on the next Business Day); and
(c) be sent (i) to the Borrower at its address specified overleaf; and
(ii) to the Bank at the branch address specified overleaf or to such
other address in England as may be notified in writing by the relevant
party to the other.
All communications to the Bank shall be effective only on actual receipt
by the Bank.
18. Law
---
This document and the agreement constituted by the Borrower's (and, where
applicable, the Parent's) acceptance of this offer shall each be governed
by and construed in accordance with English law.
Barclays Treasury Loan
----------------------
Acceptance
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THIS OFFER WILL LAPSE IF NOT ACCEPTED WITHIN ONE MONTH OF THE DATE OF THE BANK'S
SIGNATURE BELOW. ACCEPTANCE SHALL BE SIGNIFIED BY THE BORROWER (AND THE PARENT,
WHERE NAMED IN THE OFFER LETTER) SIGNING BELOW AND RETURNING THIS DOCUMENT
UNAMENDED TO THE BANK AT THE BRANCH ADDRESS SHOWN BELOW. THE FACILITY WILL NOT
BE AVAILABLE FOR DRAWDOWN UNTIL THE REQUIREMENTS OF CONDITION 2.1 AND THE
PROVISIONS IN THE OFFER LETTER UNDER THE HEADING "CONDITIONS PRECEDENT" HAVE
BEEN SATISFIED.
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SIGNATURES
Signed for on behalf of
BARCLAYS BANK PLC 00 Xxxxxxx Xxxxxx
Xxxxxx
Xx XX0X 0XX
Xxxxxx Xxxx Xxxxxxxxx
Corporate Relationship Director
26th June 1998
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The Borrower, having read all of the *The Parent, having read all of the
terms and conditions of this document terms and conditions of this
and the attached further Special document and the attached further
Conditions (if any), hereby accepts Special Conditions (if any), hereby
the offer set out herein. Where the accepts the obligations expressed
Borrower is a company, this document to be undertaken by the Parent
is to be signed for and on behalf of herein. This document is to be
the Borrower by a person or persons signed for and on behalf of the
duly authorised pursuant to a Parent by a person or persons duly
resolution of its Board of authorised pursuant to a resolution
Directors. In other cases, where the of its Board of Directors.
Borrower comprises more than one
person, all such persons(including
all partners or trustees) must sign.
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By (Signature) By (Signature)
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(Print name and title) (Print name and title)
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(Signature) (Signature)
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(Print name and title) (Print name and title)
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(Date) (Date)
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* Bank to delete as appropriate
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