Exhibit 4.123
(XXXXXXXX CHANCE LETTERHEAD)
CONFORMED COPY
L50,000,000
COMMITTED MULTICURRENCY REVOLVING FACILITY AGREEMENT
dated 27 March 2003
for
MARCONI BONDING LIMITED
as Applicant
with
MARCONI CORPORATION plc
as Company
with
HSBC BANK plc
acting as Agent and Security Trustee
AND OTHERS
CONTENTS
CLAUSE PAGE
1. Definitions And Interpretation................................................................. 1
2. The Facility................................................................................... 12
3. Purpose........................................................................................ 13
4. Conditions Of Utilisation...................................................................... 13
5. Utilisation.................................................................................... 14
6. Revaluation Of Bonds........................................................................... 16
7. Long Dated Bonds............................................................................... 17
8. Bonds.......................................................................................... 17
9. Repayment, Prepayment And Cancellation......................................................... 21
10. Default Interest............................................................................... 24
11. Changes To The Calculation Of Interest......................................................... 25
12. Break Costs.................................................................................... 26
13. Fees........................................................................................... 26
14. Tax Gross Up And Indemnities................................................................... 27
15. Increased Costs................................................................................ 29
16. Other Indemnities.............................................................................. 30
17. Mitigation By The Banks........................................................................ 31
18. Costs And Expenses............................................................................. 31
19. Guarantee And Indemnity........................................................................ 32
20. Representations................................................................................ 34
21. Information Undertakings....................................................................... 36
22. Security Undertakings.......................................................................... 37
23. General Undertakings........................................................................... 39
24. Events Of Default.............................................................................. 39
25. Changes To The Banks........................................................................... 42
26. Changes To The Obligors........................................................................ 45
27. Role Of The Agent And The Security Trustee..................................................... 46
28. Conduct Of Business By The Finance Parties..................................................... 55
29. Sharing Among The Finance Parties.............................................................. 55
30. Payment Mechanics.............................................................................. 56
31. Set-Off........................................................................................ 59
32. Notices........................................................................................ 59
33. Calculations And Certificates.................................................................. 61
34. Partial Invalidity............................................................................. 61
35. Remedies And Waivers........................................................................... 61
36. Amendments And Waivers......................................................................... 61
37. Counterparts................................................................................... 62
38. Governing Law ................................................................................. 62
39. Enforcement.................................................................................... 62
SCHEDULE 1 The Original Parties....................................................................... 64
Part A The Original Issuing Banks....................................................... 64
Part B The Original Banks............................................................... 65
Part C The Original Indemnifying Companies.............................................. 66
SCHEDULE 2 Conditions Precedent....................................................................... 67
Part A Conditions Precedent To Initial Utilisation............................................. 67
Part B Conditions Precedent Required To Be Delivered By An Additional Obligor................. 69
SCHEDULE 3 Utilisation Request........................................................................ 70
SCHEDULE 4 Mandatory Cost Formulae.................................................................... 72
SCHEDULE 5 Form Of Transfer Certificates.............................................................. 75
SCHEDULE 6 Form Of Accession Letter................................................................... 77
SCHEDULE 7 Timetables................................................................................. 78
SCHEDULE 8 Form Of LMA Confidentiality Undertaking.................................................... 79
SCHEDULE 9 Draft Indenture Terms...................................................................... 84
SCHEDULE 10 Form Of Scheme Expenses Bond.............................................................. 85
THIS AGREEMENT is dated 27 March 2003 and made between:
(1) MARCONI BONDING LIMITED (the "APPLICANT");
(2) MARCONI CORPORATION PLC (the "COMPANY");
(3) THE FINANCIAL INSTITUTIONS listed in Part A of Schedule 1 (The Original
Issuing Banks) (the "ORIGINAL ISSUING BANKS");
(4) THE FINANCIAL INSTITUTIONS listed in Part B of Schedule 1 (The Original
Banks) (the "ORIGINAL BANKS");
(5) HSBC BANK PLC as agent of (and security trustee for) the other Finance
Parties (the "AGENT" and the "SECURITY TRUSTEE" respectively); and
(6) THE COMPANIES listed in Part C of Schedule 1 (The Original Indemnifying
Companies) (the "ORIGINAL INDEMNIFYING COMPANIES").
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"ACCESSION LETTER" means a document substantially in the form set out
in Schedule 6 (Form of Accession Letter).
"ADDITIONAL INDEMNIFYING COMPANY" means a company which becomes an
Indemnifying Company in accordance with Clause 26 (Changes to the
Obligors).
"ADDITIONAL COST RATE" has the meaning given to it in Schedule 4
(Mandatory Cost Formulae).
"AFFILIATE" means, in relation to any person, a Subsidiary of that
person or a Holding Company of that person or any other Subsidiary of
that Holding Company.
"AGENCY FEE LETTER" means the letter dated about the date of this
Agreement between the Agent, the Security Trustee and the Company
setting out the fees referred to in Clause 13.5 (Agency Fee).
"AGENT'S SPOT RATE OF EXCHANGE" means the Agent's spot rate of exchange
for the purchase of the relevant currency or relevant currencies with
the Base Currency in the London foreign exchange market at or about
11:00 a.m. on a particular day.
"AUTHORISATION" means an authorisation, consent, approval, resolution,
licence, exemption, filing, notarisation, registration, recordal or
enrolment.
"AVAILABILITY PERIOD" means, subject to Clause 2.3 (Extension of the
Facility), the period from and including the Effective Date to and
including the date falling 18 Months after the Effective Date.
"AVAILABLE COMMITMENT" means a Bank's Commitment minus:
(a) the Base Currency Amount of its participation in any
outstanding Bonds; and
(b) in relation to any proposed Utilisation, the Base Currency
Amount of its participation in any Bonds that are due to be
issued on or before the proposed Utilisation Date,
other than that Bank's participation in any Bonds that are due to be
repaid or prepaid in full on or before the proposed Utilisation Date.
"AVAILABLE FACILITY" means the aggregate for the time being of each
Bank's Available Commitment.
"BANK" means:
(a) any Original Bank and (unless the context requires otherwise)
any Original Issuing Bank; and
(b) any bank, financial institution, trust, fund or other entity
which has become a Party in accordance with Clause 25 (Changes
to the Banks),
which in each case has not ceased to be a Party in accordance with the
terms of this Agreement.
"BASE CURRENCY" means sterling.
"BASE CURRENCY AMOUNT" means:
(a) in relation to a Utilisation, the amount specified in the
Utilisation Request for that Utilisation (or, if the amount
requested is not denominated in the Base Currency, that amount
converted into the Base Currency at the Agent's Spot Rate of
Exchange on the date which is three Business Days before the
Utilisation Date or, if later, on the date the Agent receives
the Utilisation Request and as adjusted under Clause 6
(Revaluation of Bonds) at six-monthly intervals) adjusted to
reflect any repayment or prepayment of the Utilisation; and
(b) in relation to any cash security provided pursuant to Clause
22 (Security Undertakings) and to any cash cover provided
generally pursuant to the terms of this Agreement, the amount
thereof (if the same has been provided in the Base Currency)
or, if the same has been provided in a currency other than the
Base Currency, the amount thereof in the Base Currency
calculated by notionally converting such cash security or cash
collateral into the Base Currency on the basis of the Agent's
Spot Rate of Exchange on the date on which such amount falls
to be determined pursuant to the provisions of this Agreement.
"BOND" means a bond, guarantee, letter of credit, indemnity or similar
instrument to be utilised for the purposes set out in Clause 3.1
(Purpose) in a form requested by the Applicant and agreed with the
relevant Issuing Bank in accordance with sub-clause 5.2.1(c) of Clause
5.2 (Completion of a Utilisation Request).
-2-
"BREAK COSTS" means the amount (if any) by which:
(a) the interest which a Bank should have received for the period
from the date of receipt of all or any part of its
participation in an Unpaid Sum to the last day of the current
Interest Period in respect of that Unpaid Sum, had the Unpaid
Sum received been paid on the last day of that Interest
Period;
exceeds:
(b) the amount which that Bank would be able to obtain by placing
an amount equal to the Unpaid Sum received by it on deposit
with a leading bank in the Relevant Interbank Market for a
period starting on the Business Day following receipt or
recovery and ending on the last day of the current Interest
Period.
"BUSINESS DAY" means a day (other than a Saturday or Sunday) on which
banks are open for general business in London and:
(a) (in relation to any date for payment or purchase of a currency
other than euro) the principal financial centre of the country
of that currency; or
(b) (in relation to any date for payment or purchase of euro) any
TARGET Day.
"CASH COLLATERAL RELEASE" shall have the meaning ascribed thereto in
the Notes Indentures.
"COMMITMENT" means:
(a) in relation to an Original Bank, the amount in the Base
Currency set opposite its name under the heading "Commitment"
in Part B of Schedule 1 (The Original Banks) and the amount of
any other Commitment transferred to it under this Agreement;
and
(b) in relation to any other Bank, the amount in the Base Currency
of any Commitment transferred to it under this Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"CONFIDENTIALITY UNDERTAKING" means a confidentiality undertaking
substantially in a recommended form of the LMA as set out in Schedule 8
(LMA Form of Confidentiality Undertaking) or in any other form agreed
between the Company and the Agent.
"DEFAULT" means an Event of Default or any event or circumstance
specified in Clause 24 (Events of Default) which would (with the expiry
of a grace period, the giving of notice, the making of any
determination under the Finance Documents or any combination of any of
the foregoing) be an Event of Default.
"DOLLAR AMOUNT" means, in relation to any Bond in respect of which such
amount is to be calculated, the amount calculated by notionally
converting into dollars the Base Currency Amount of that Bond (ignoring
for this purpose any cash cover provided in respect of such Bond) on
the basis of the Agent's Spot Rate of Exchange on the date of such
notional calculation.
-3-
"DRAFT INDENTURE TERMS" means the draft terms of the Notes Indentures,
as set out in the document entitled "Summary of the Terms of the New
Senior Notes and the new Junior Notes", a copy of which is attached at
Schedule 9 (Draft Indenture Terms).
"EFFECTIVE DATE" means the date when the office copy of the Orders of
the High Court sanctioning the Scheme is delivered to the Registrar of
Companies for registration as required by Section 425 of the Companies
Xxx 0000 (as amended).
"EQUITY INTERESTS" shall have the meaning ascribed thereto in the Notes
Indentures.
"ESCROW AGREEMENT" means the escrow agreement dated on or about the
date of this Agreement between the Company, the Escrow Bank and The Law
Debenture Trust Corporation P.L.C. (as Security Trustee) with respect
to the escrow accounts referred to therein (including the Existing
Performance Bond Escrow Account).
"EVENT OF DEFAULT" means any event or circumstance specified as such in
Clause 24 (Events of Default).
"EXISTING PERFORMANCE BOND ESCROW ACCOUNT RELEASES" means any release
and transfer of an amount or amounts of cash from the Existing
Performance Bond Escrow Account which the Company is entitled to
require the Security Trustee (as defined in the Escrow Agreement) to
instruct the Escrow Bank (as defined in the Escrow Agreement) to make
to the Agent and/or the Security Trustee.
"EXISTING PERFORMANCE BONDS" has the meaning ascribed thereto in the
Notes Indentures.
"EXISTING PERFORMANCE BOND ESCROW ACCOUNT" means the escrow account
established pursuant to the Escrow Agreement to be used to satisfy
liabilities owed by the Company and its Subsidiaries to certain
providers of Existing Performance Bonds in respect of such Existing
Performance Bonds.
"EXISTING PERFORMANCE BOND RELEASE" means any Cash Collateral Release
from or in respect of any of the Existing Performance Bonds (but
excluding any Existing Performance Bond Escrow Account Releases).
"EXPIRY DATE" means, for a Bond, the last day of its Term.
"FACILITY" means the revolving facility made available under this
Agreement as described in Clause 2 (The Facility).
"FACILITY OFFICE" means the office or offices notified by a Bank to the
Agent in writing on or before the date it becomes a Bank (or, following
that date, by not less than five Business Days' written notice) as the
office or offices through which it will perform its obligations under
this Agreement.
"FINANCE DOCUMENT" means this Agreement, any Accession Letter, the
Security Agreement, the Security Trust and Intercreditor Deed, the
Agency Fee Letter and any other document designated as such by the
Agent and the Company.
"FINANCE PARTY" means the Agent, the Security Trustee, an Issuing Bank
or a Bank.
-4-
"GROUP" means the Company and its Subsidiaries for the time being.
"GUARANTOR" shall have the meaning ascribed thereto in the Senior Notes
Indenture.
"HOLDING COMPANY" means, in relation to a company or corporation, any
other company or corporation in respect of which it is a Subsidiary.
"INDEMNIFYING COMPANY" means an Original Indemnifying Company or an
Additional Indemnifying Company.
"INDICATIVE HEADS OF TERMS" means the Indicative Non-Binding Heads of
Terms in relation to, inter alia, the proposed Scheme dated 28 August
2002 as amended by an addendum dated 13 December 2002.
"INITIAL CASH SECURITY " has the meaning ascribed thereto in Clause
22.1 (Initial Cash Security).
"INTEREST PERIOD" means, in relation to an Unpaid Sum, each period
determined in accordance with Clause 10.1 (Default interest).
"INTERIM BONDING FACILITIES" means (1) the interim bonding facilities
dated 10 May 2002 (as amended) between Barclays Bank PLC, HSBC Bank plc
and XX Xxxxxx Xxxxx Bank and the Applicant providing for the issuance
of surety bonds, appeal bonds, bid bonds, performance bonds, letters of
credit, bank guarantees and other obligations of a like nature and (2)
the temporary bonding facility dated 8 February 2002 between Barclays
Bank PLC, HSBC Bank plc and the Applicant providing for the issuance of
surety bonds, appeal bonds, bid bonds, performance bonds, letters of
credit, bank guarantees or other obligations of a like nature.
"INTERIM BONDING FACILITIES RELEASE" means any Cash Collateral Release
from or in respect of the Interim Bonding Facilities.
"INTERIM BONDING FACILITIES SECURITY AGREEMENTS" means the security
over cash agreements dated 10 May 2002 and 29 October 2002 entered into
between the Applicant and the Security Trustee.
"ISSUING BANK" means an Original Issuing Bank and any other Bank which
agrees to be designated by the Agent as an Issuing Bank under this
Agreement.
"JUNIOR NOTES INDENTURE" means the indenture pursuant to which the
Junior Notes are issued.
"JUNIOR NOTES" means the dollar denominated Guaranteed Junior Secured
Notes due 2008 issued or to be issued by the Company plus any Junior
PIK Notes.
"JUNIOR PIK NOTES" means any Junior Notes issued or deemed to be issued
and constituting interest paid in kind on outstanding Junior Notes (or
on Junior PIK Notes).
"LIBOR" means, in relation to any Unpaid Sum:
(a) the applicable Screen Rate; or
-5-
(b) (if no Screen Rate is available for the currency or Interest
Period of that Unpaid Sum) the arithmetic mean of the rates
(rounded upwards to four decimal places) as supplied to the
Agent at its request quoted by the Reference Banks to leading
banks in the London interbank market,
as of the Specified Time on the Quotation Day for the offering of
deposits in the currency of that Unpaid Sum and for a period comparable
to the Interest Period for that Unpaid Sum.
"LONG DATED BOND" has the meaning ascribed thereto in Clause 7.1 of
Clause 7 (Long Dated Bonds).
"MAJORITY BANKS" means:
(a) until the Total Commitments have been reduced to zero, a Bank
or Banks whose Commitments aggregate more than 66 2/3% of the
Total Commitments (or, if the Total Commitments have been
reduced to zero and there are no Bonds then outstanding,
aggregated more than 66 2/3% of the Total Commitments
immediately prior to the reduction); or
(b) at any other time, a Bank or Banks whose participations in the
Bonds then outstanding aggregate more than 66 2/3% of all the
Bonds then outstanding.
"MANDATORY COST" means the percentage rate per annum calculated by the
Agent in accordance with Schedule 4 (Mandatory Cost Formulae).
"MONTH" means a period starting on one day in a calendar month and
ending on the numerically corresponding day in the next calendar month,
except that:
(a) if the numerically corresponding day is not a Business Day,
that period shall end on the next Business Day in that
calendar month in which that period is to end if there is one,
or if there is not, on the immediately preceding Business Day;
and
(b) if there is no numerically corresponding day in the calendar
month in which that period is to end, that period shall end on
the last Business Day in that calendar month.
The above rules will only apply to the last Month of any period.
"NON-US SUBSIDIARY" has the meaning ascribed thereto in the Notes
Indentures.
"NOTES" means the Senior Notes and the Junior Notes issued or to be
issued pursuant to the Notes Indentures.
"NOTES INDENTURES" means the Senior Notes Indenture and the Junior
Notes Indenture.
"OBLIGOR" means the Applicant, the Company or an Indemnifying Company.
"OPTIONAL CURRENCY" means a currency (other than the Base Currency)
which complies with the conditions set out in Clause 4.3 (Conditions
relating to Optional Currencies).
-6-
"ORIGINAL OBLIGOR" means the Applicant, the Company and each Original
Indemnifying Company.
"PARTICIPATING MEMBER STATE" means any member state of the European
Communities that adopts or has adopted the euro as its lawful currency
in accordance with legislation of the European Community relating to
Economic and Monetary Union.
"PARTY" means a party to this Agreement.
"PROPORTION" means, in relation to a Bank in respect of any Bond, the
proportion (expressed as a percentage) borne by that Bank's Available
Commitment to the Available Facility immediately prior to the issue of
that Bond, adjusted to reflect any assignment or transfer under this
Agreement to or by that Bank.
"QUARTER DATE" means the last Business Day in each of April, July,
October and January, in each year.
"QUOTATION DAY" means, in relation to any period for which an interest
rate is to be determined:
(a) (if the currency is sterling) the first day of that period;
(b) (if the currency is euro) two TARGET Days before the first day
of that period; or
(c) (for any other currency) two Business Days before the first
day of that period,
unless market practice differs in the Relevant Interbank Market for a
currency, in which case the Quotation Day for that currency will be
determined by the Agent in accordance with market practice in the
Relevant Interbank Market (and if quotations would normally be given by
leading banks in the Relevant Interbank Market on more than one day,
the Quotation Day will be the last of those days).
"REFERENCE BANKS" means the principal London offices of HSBC Bank plc
and JPMorgan Chase Bank or such other banks as may be appointed by the
Agent in consultation with the Company.
"RELEVANT ACCOUNT" means each account of the Applicant with the
Security Trustee denominated in the Base Currency, euro or dollars and
designated as such by the Security Trustee (together with any
substitute, replacement or sub-account in relation to such designated
account).
"RELEVANT INTERBANK MARKET" means the London interbank market.
"REPEATING REPRESENTATIONS" means each of representations set out in
Clause 20 (Representations) other than Clause 20.7 (No Filing or stamp
taxes).
"REPLACEMENT FACILITIES" shall have the meaning ascribed thereto in
Clause 4.4 (Replacement Bonding Facilities).
-7-
"SCHEME" means the compromise or arrangement between the Company and
its creditors pursuant to Section 425 of the Companies Xxx 0000
implementing the restructuring contemplated by the Indicative Heads of
Terms.
"SCHEME EXPENSES BOND" means the Bond which may be issued under the
Facility in favour of the plc Supervisors (as defined in the Scheme
Implementation Deed) by HSBC Bank plc (as the Issuing Bank thereof) in
respect of actual or potential Scheme Expenses (as defined in the
Scheme Implementation Deed) incurred or to be incurred by the plc
Supervisors (as defined in the Scheme Implementation Deed) .
"SCHEME IMPLEMENTATION DEED" means the deed entered into or to be
entered into between Marconi Plc, the Company, E-A Continental Limited,
Ancrane Limited and certain other members of the Group in relation to,
amongst other things, the implementation of the Scheme.
"SCREEN RATE" means in relation to LIBOR, the British Bankers
Association Interest Settlement Rate for the relevant currency and
period displayed on the appropriate page of the Telerate screen. If the
agreed page is replaced or service ceases to be available, the Agent
may specify another page or service displaying the appropriate rate
after consultation with the Company and the Banks.
"SECURED CREDITOR" shall have the meaning ascribed thereto in the
Security Trust and Intercreditor Deed.
"SECURED OBLIGATIONS" has the meaning given to it in the Security
Agreement.
"SECURITY" means a mortgage, charge, pledge, lien or other security
interest securing any obligation of any person or any other agreement
or arrangement having a similar effect.
"SECURITY AGREEMENT" means the security over cash agreement of even
date entered into between the Applicant and the Security Trustee.
"SECURITY TRUST AND INTERCREDITOR DEED" means the security trust and
intercreditor deed to be entered into between, among others, the STID
Security Trustee, the Guarantors referred to therein, the Senior Note
Trustee (as defined therein), the Junior Note Trustee (as defined
therein) and the Agent.
"SENIOR NOTES INDENTURE" means the indenture pursuant to which the
Senior Notes are issued.
"SENIOR NOTES" means the euro or dollar denominated Guaranteed Senior
Secured Notes due 2008 issued or to be issued by the Company.
"SPECIFIED TIME" means a time determined in accordance with Schedule 7
(Timetables).
"STID SECURITY TRUSTEE" means the Security Trustee under and as defined
in the Security Trust and Intercreditor Deed.
"STID TRANSACTION SECURITY" means the Transaction Security as defined
in the Security Trust and Intercreditor Deed.
-8-
"SUBSIDIARY" means a subsidiary within the meaning of section 736 of
the Companies Xxx 0000 as amended by section 144 of the Companies Xxx
0000.
"TARGET" means Trans-European Automated Real-time Gross Settlement
Express Transfer payment system.
"TARGET DAY" means any day on which TARGET is open for the settlement
of payments in euro.
"TAX" means any tax, levy, impost, duty or other charge or withholding
of a similar nature (including any penalty or interest payable in
connection with any failure to pay or any delay in paying any of the
same).
"TAXES ACT" means the Income and Corporation Taxes Xxx 0000.
"TERM" means the period set out in the relevant Utilisation Request for
which an Issuing Bank is under a liability under a Bond.
"TOTAL COMMITMENTS" means the aggregate of the Commitments, being
L50,000,000 at the date of this Agreement.
"TRANSACTION SECURITY" means the Security granted to the Security
Trustee under the Security Agreement.
"TRANSFER CERTIFICATE" means a certificate substantially in the form
set out in Schedule 5 (Form of Transfer Certificates) or any other form
agreed between the Agent and the Company.
"TRANSFER DATE" means, in relation to a transfer, the later of:
(a) the proposed Transfer Date specified in the Transfer
Certificate;
(b) the date on which the Agent executes the Transfer Certificate;
and
(c) the date of receipt by the STID Security Trustee of the
Agent/Trustee/New Bonding Facility Bank Accession Letter (as
defined in the Security Trust and Intercreditor Deed) in
accordance with clause 22.4 (Other Parties) of the Security
Trust and Intercreditor Deed (or, if later, the date specified
in such letter).
"UNPAID SUM" means any sum due and payable but unpaid by an Obligor
under the Finance Documents.
"UTILISATION" means a utilisation of the Facility by way of the issue
of a Bond.
"UTILISATION DATE" means the date of a Utilisation, being the date on
which a Bond is to be issued.
"UTILISATION REQUEST" means a notice substantially in the form set out
in Schedule 3 (Utilisation Request).
-9-
"VAT" means value added tax as provided for in the Value Added Tax Xxx
0000 and any other tax of a similar nature.
1.2 CONSTRUCTION
1.2.1 Unless a contrary indication appears, any reference in this
Agreement to:
(a) the "AGENT", the "SECURITY TRUSTEE", "any "FINANCE
PARTY", any "ISSUING BANK", any "BANK", any "OBLIGOR"
or any "PARTY" shall be construed so as to include
its successors in title, permitted assigns and
permitted transferees;
(b) "EURO" means the single currency unit of the
Participating Member States; "L" and "STERLING" means
the lawful currency of the United Kingdom and "$" and
"DOLLARS" means the lawful currency of the United
States of America;
(c) a "FINANCE DOCUMENT" or any other agreement or
instrument is a reference to that Finance Document or
other agreement or instrument as amended or novated;
(d) if at any time any provision of the Finance Documents
is to be construed, interpreted or otherwise to have
effect by reference to any term (including any
defined term) of the Notes Indentures (or either of
them) and at such time the Notes Indentures have not
been executed and/or delivered and/or taken legal
effect as between the parties thereto, such provision
of the Finance Documents shall (unless stated to the
contrary) be construed, interpreted or take effect by
reference to the relevant terms of the Draft
Indenture Terms as if such draft terms were in full
force and effect between the parties thereto;
(e) a "PERSON" includes any person, firm, company,
corporation, government, state or agency of a state
or any association, trust or partnership or two or
more of the foregoing (whether or not having separate
legal personality);
(f) an outstanding amount of a Bond at any time is the
maximum amount that is or may be payable by the
Applicant in respect of that Bond at that time;
(g) a "REGULATION" includes any regulation, rule,
official directive, request or guideline (whether or
not having the force of law) of any governmental,
intergovernmental or supranational body, agency,
department or regulatory, self-regulatory or other
authority or organisation;
(h) the "RELEVANT ISSUING BANK" means in relation to any
Bond which has been or is to be issued, the Issuing
Bank which has issued, is to issue or has been
requested to issue that Bond;
(i) the "REPAYING", "REPAYMENT", "PREPAYING" or
"PREPAYMENT" of a Bond means:
(i) the provision of cash cover for that Bond;
-10-
(ii) the maximum amount payable under the Bond
being reduced in accordance with its terms;
or
(iii) the Issuing Bank of that Bond being
satisfied that it has no further liability
under that Bond;
and the amount by which a Bond is repaid or prepaid
under (i) and (ii) above is the amount of the
relevant cash cover or reduction (but, save as
provided under Clause 9.6 (Cash Cover), the provision
of cash security pursuant to Clause 22 (Security
undertakings) does not constitute the repayment or
prepayment of a Bond); and
(j) the provision of "CASH COVER" for a Bond means the
payment of an amount in the currency of the Bond to
an interest-bearing account in the name of the
Applicant and the following conditions are met:
(i) the account is with the Security Trustee,
including any appropriate Relevant Account
(if the cash cover is to be provided for all
the Banks), or with a Bank (if the cash
cover is to be provided for that Bank);
(ii) withdrawals from the account may only be
made to pay a Finance Party amounts due and
payable to it under this Agreement until no
amount is or may be outstanding under:
(1) in the case of cash cover paid to
an account with the Security
Trustee in circumstances where such
cash cover is to be provided for
all the Banks, any Bond; or
(2) in the case only of cash cover paid
to an account with a Bank in
circumstances where such cash cover
is to be provided for that Bank
only, that Bond,
following which such restrictions shall not
apply; and
(iii) interest shall accrue at such commercial
rate and with such interest periods as the
Security Trustee or the relevant Bank (as
the case may be) shall specify from time to
time on the credit balance of the account.
All such interest shall be for the account
of the Applicant and credited to the
relevant account; and
(iv) the Applicant has executed a security
document over that account (including, in
respect of a Relevant Account, the Security
Agreement), in form and substance
satisfactory to the Security Trustee or the
Finance Party with which that account is
held, creating a first ranking security
interest over that account.
(k) a provision of law is a reference to that provision
as amended or re-enacted; and
(l) a time of day is a reference to London time.
-11-
1.2.2 Section, Clause and Schedule headings are for ease of
reference only.
1.2.3 Unless a contrary indication appears, a term used in any other
Finance Document or in any notice given under or in connection
with any Finance Document has the same meaning in that Finance
Document or notice as in this Agreement.
1.2.4 A Default (other than an Event of Default) is "CONTINUING" if
it has not been remedied or waived and an Event of Default is
"CONTINUING" if it has not been waived.
1.3 THIRD PARTY RIGHTS
1.3.1 Unless expressly provided to the contrary in a Finance
Document a person who is not a Party has no right under the
Contracts (Rights of Third Parties) Act 1999 (the "THIRD
PARTIES ACT") to enforce or to enjoy the benefit of any term
of this Agreement.
1.3.2 Notwithstanding any term of any Finance Document, the consent
of any person who is not a Party is not required to rescind or
vary this Agreement at any time.
2. THE FACILITY
2.1 THE FACILITY
Subject to the terms of this Agreement, the Banks make available to the
Applicant a committed multicurrency revolving facility for the issue of
Bonds in an aggregate amount equal to the Total Commitments.
2.2 FINANCE PARTIES' RIGHTS AND OBLIGATIONS
2.2.1 The obligations of each Finance Party under the Finance
Documents are several. Failure by a Finance Party to perform
its obligations under the Finance Documents does not affect
the obligations of any other Party under the Finance
Documents. No Finance Party is responsible for the obligations
of any other Finance Party under the Finance Documents.
2.2.2 The rights of each Finance Party under or in connection with
the Finance Documents are separate and independent rights and
any debt arising under the Finance Documents to a Finance
Party from an Obligor shall be a separate and independent
debt.
2.2.3 A Finance Party may, except as otherwise stated in the Finance
Documents, separately enforce its rights under the Finance
Documents.
2.3 EXTENSION OF THE FACILITY
Prior to the expiry of the Availability Period, the Applicant shall
have the right to request the Banks to extend the Availability Period
once to a date falling no later than the date which is 30 Months after
the Effective Date on the terms set forth in this Agreement and the
other Finance Documents and, without accepting any obligation
whatsoever to agree to such extension, each Bank agrees that it will in
good faith consider whether or not it is prepared to agree to such
extension. However in no event will any such extension of the
-12-
Availability Period be made unless each Bank and each Issuing Bank has
agreed to the same and the terms thereof.
3. PURPOSE
3.1 PURPOSE
The Facility is provided for the purpose (1) of supporting (directly or
indirectly) obligations owed by Indemnifying Companies to third parties
where such obligations are incurred in the ordinary course of the
Group's trade or business (but not, for the avoidance of doubt, for the
purpose of supporting any financing facilities of members of the Group
other than any financing facilities which have been provided to members
of the Group for the purpose of supporting directly obligations of
members of the Group incurred in the ordinary course of the Group's
trade or business (other than where such business includes the raising
or incurrence of financial indebtedness) through the issue of surety
bonds, appeal bonds, bid bonds, performance bonds, letters of credit,
bank guarantees or other obligations of a like nature issued for such
purpose) and (2) of issuing the Scheme Expenses Bond.
3.2 MONITORING
No Finance Party is bound to monitor or verify the manner in which the
Facility is utilised.
4. CONDITIONS OF UTILISATION
4.1 INITIAL CONDITIONS PRECEDENT
The Applicant may not deliver a Utilisation Request unless the Agent
has received all of the documents and other evidence listed in Part A
(Conditions Precedent to Initial Utilisation) of Schedule 2 in form and
substance satisfactory to the Agent. The Agent shall notify the
Applicant, the Company and the Banks promptly upon being so satisfied.
4.2 FURTHER CONDITIONS PRECEDENT
The Banks will only be obliged to comply with Clause 5.4 (Issue of
Bonds) if on the date of the Utilisation Request and on the proposed
Utilisation Date:
4.2.1 no Default is continuing or would result from the proposed
Utilisation; and
4.2.2 the Repeating Representations to be made by the Company, the
Applicant and the Indemnifying Company for whose account the
relevant Bond has been requested to be issued are true in all
material respects.
4.3 CONDITIONS RELATING TO OPTIONAL CURRENCIES
4.3.1 A currency will constitute an Optional Currency in relation to
a Utilisation if it is euro or dollars or:
(a) it is readily available in the amount required and
freely convertible into the Base Currency in the
Relevant Interbank Market on the Quotation Day and
the Utilisation Date for that Utilisation; and
(b) it has been approved by the relevant Issuing Bank for
that Utilisation on or prior to receipt by the Agent
of the relevant Utilisation Request for that
Utilisation.
-13-
4.3.2 If the Agent has received a written request from the Applicant for a
currency to be approved under sub-clause 4.3.1(b) of this Clause
4.3, the Agent will confirm to the Applicant by the Specified Time
whether or not the relevant Issuing Bank has granted its approval.
4.4 REPLACEMENT BONDING FACILITIES
4.4.1 If the Company or any of its Subsidiaries enters into any
Replacement New Bonding Facility Agreement as defined in and as
permitted under the terms of the Notes Indentures (such facilities
being "REPLACEMENT FACILITIES"), the Company will promptly notify
the Agent of that fact in writing and provide a copy of the facility
documentation relating to the Replacement Facilities to the Agent
and the Agent will promptly notify the Banks of the same. On each
occasion upon which any cash cover is provided by the Company or any
of its Subsidiaries pursuant to the terms of any Replacement
Facilities, the Company will promptly inform the Agent in writing of
that fact and of the amount and currency of cash cover so provided.
4.4.2 At any time after the Company or any of its Subsidiaries have
entered into any Replacement Facilities, and regardless of whether
or not the Company has cancelled the whole or any part of the
Available Facility pursuant to Clause 9.3 (Voluntary Cancellation),
the Banks will only be obliged to comply with Clause 5.4 (Issue of
Bonds) if on the date of the Utilisation Request and on the proposed
Utilisation Date, the Base Currency of all Initial Cash Security
provided to the Security Agent since the Effective Date, together
with the Base Currency Amount of the Initial Cash Security required
to be provided in connection with the Bond requested in such
Utilisation Request, together with the amount of all cash cover
provided (or to be provided on or prior to the relevant Utilisation
Date) in connection with any Replacement Facilities does not exceed
L25,000,000 (and for the purposes of giving effect to the above
provisions the Agent shall be entitled notionally to convert the
amount of any cash cover provided under any Replacement Facilities
in a currency other than the Base Currency into the Base Currency at
the Agent's Spot Rate of Exchange on the day of delivery of the
relevant Utilisation Request).
5. UTILISATION
5.1 DELIVERY OF A UTILISATION REQUEST
The Applicant may utilise the Facility by delivery to the Agent of a duly
completed Utilisation Request requesting the issue of a Bond by an Issuing
Bank not later than the Specified Time. Further, but provided only that
the relevant Issuing Bank has confirmed to the Applicant and the Agent
that the Issuing Bank consents to the same, the Applicant may deliver a
Utilisation Request later than the Specified Time.
5.2 COMPLETION OF A UTILISATION REQUEST
5.2.1 Each Utilisation Request is irrevocable and will not be regarded as
having been duly completed unless:
- 14 -
(a) the proposed Utilisation Date is a Business Day within the
Availability Period;
(b) the currency and amount of the Utilisation comply with Clause
5.3 (Currency and amount);
(c) the form of the Bond is attached and either (i) has been
agreed by the relevant Issuing Bank (having regard to that
Issuing Bank's formal internal policies at the relevant time,
and to all relevant legal and regulatory restrictions) or (ii)
in respect of the Scheme Expenses Bond only, is in
substantially the form set out in Schedule 10 (Form of Scheme
Expenses Bond);
(d) either:
(i) the Expiry Date of the Bond falls on or before 31
December 2010; or
(ii) the Expiry Date of the Bond falls after 31 December 2010
or the Bond is undated and, in each case, the relevant
Issuing Bank and the Banks have agreed to the making of
the Utilisation; or
(iii) in the case of the Scheme Expenses Bond only, (subject
to the Applicant's right to request that such Bond be
extended or renewed but not so that the Expiry Date
thereof falls on a date which is later than 5 years from
the Effective Date) the initial Expiry Date thereof
falls on or before the date which is 15 months after the
Effective Date;
(e) the delivery instructions for the Bond are specified;
(f) the Bond is either the Scheme Expenses Bond or a Bond for the
purpose of supporting (directly or indirectly) the obligations
of an Indemnifying Company to a third party where such
obligations are incurred in the ordinary course of the Group's
trade or business, but not for the purpose of supporting any
financing facility of a member of the Group other than any
financing facilities which have been provided to members of
the Group for the purpose of supporting directly obligations
of members of the Group incurred in the ordinary course of the
Group's trade or business (other than where such business
includes the raising or incurrence of financial indebtedness)
through the issue of surety bonds, appeal bonds, bid bonds,
performance bonds, letters of credit, bank guarantees or other
obligations of a like nature issued for such purpose; and
(g) the identity of the beneficiary of the Bond is satisfactory to
the relevant Issuing Bank (having regard to the relevant
Issuing Bank's formal internal policies at the relevant time,
and to all relevant legal and regulatory restrictions).
5.2.2 Only one Utilisation may be requested in each Utilisation Request.
- 15 -
5.2.3 If either the form, the identity of the beneficiary, or (in the case
of a Bond to have an Expiry Date falling after 31 December 2010 or
which is undated) the tenor of, a Bond which is requested to be
issued has not been agreed or approved by the relevant Issuing Bank
prior to the submission of the Utilisation Request for that Bond,
and the relevant Issuing Bank does not agree or approve the form,
the beneficiary or the tenor of the relevant Bond (as the case may
be), the relevant Issuing Bank shall inform the Agent and the Agent
will inform the Applicant of that fact not later than the Specified
Time.
5.3 CURRENCY AND AMOUNT
5.3.1 The currency specified in a Utilisation Request must be the Base
Currency or an Optional Currency.
5.3.2 The amount of the proposed Bond must be such that its Base Currency
Amount is less than or equal to the Available Facility, save that in
the case of the Scheme Expenses Bond, the Base Currency Amount
thereof shall not, in any case, be greater than the lesser of
L2,000,000 or the Available Facility.
5.4 ISSUE OF BONDS
5.4.1 If the conditions set out in this Agreement have been met and
PROVIDED THAT the Applicant has complied with its obligations under
Clause 22.1 (Initial Cash Security) with respect to the relevant
Bond, the relevant Issuing Bank shall issue the relevant Bond on the
Utilisation Date.
5.4.2 The amount of each Bank's participation in each Bond will be equal
to the proportion borne by its Available Commitment to the Available
Facility immediately prior to the issue of the Bond.
5.4.3 The Agent shall determine the Base Currency Amount of each Bond
which is to be issued in an Optional Currency and shall notify (a)
the Company of the Base Currency Amount of such Bond and (b) the
relevant Issuing Bank and each Bank of the details of the requested
Bond and the amount of its participation in that Bond, in each case
by the Specified Time.
5.4.4 A renewal or extension of a Bond shall be treated in the same manner
as if the issue of a new Bond were being requested.
6. REVALUATION OF BONDS
6.1 If any Bond is denominated in an Optional Currency, the Agent shall at six
monthly intervals after the Effective Date recalculate the Base Currency
Amount of that Bond by notionally converting into the Base Currency the
outstanding amount of that Bond on the basis of the Agent's Spot Rate of
Exchange on the date of calculation. The Agent shall promptly notify the
Company of the amount so determined.
6.2 The Applicant shall, if requested by the Agent within 10 days of any
calculation under Clause 6.1 of this Clause 6, ensure that within three
Business Days sufficient Utilisations are prepaid to prevent the Base
Currency Amount of the Utilisations exceeding the Total Commitments
following any adjustment to a Base Currency Amount under Clause 6.1 of
this Clause 6.
- 16 -
7. LONG DATED BONDS
7.1 If an Issuing Bank issues a Bond with an Expiry Date falling after the
last day of the Availability Period or an undated Bond which has not been
repaid or prepaid in full on or prior to the last day of the Availability
Period (each, a "LONG DATED BOND"), the Applicant (or the Company on its
behalf) shall, no later than one month before the last day of the
Availability Period, repay that Long Dated Bond. To the extent that the
Applicant (or the Company on its behalf) wishes to repay such Long Dated
Bonds by the provision of cash cover, it may, provided that it has given
prior notice to the Security Trustee and the relevant Issuing Bank of that
fact, request that the Base Currency Amount of any cash security provided
pursuant to Clause 22 (Security Undertakings) standing to the credit of
the Applicant in the Relevant Accounts and any other cash cover standing
to the credit of the Applicant in an account with the Security Trustee for
all the Banks which is in either case not required to collateralise any
other obligation (whether actual or contingent) in respect of the Finance
Documents or any other Bond ("EXISTING CASH COLLATERAL"), be taken into
account in calculating the amount of cash cover so to be provided and only
such additional amount of cash cover shall have to be paid to the Security
Trustee as is necessary (when added to the amount of the Existing Cash
Collateral) to ensure that the amount to be repaid in respect of such Long
Dated Bonds has been provided in full.
7.2 in addition to any other form of repayment permitted by the terms of this
Agreement, but PROVIDED THAT the relevant Issuing Bank has given its prior
consent to the same, the Applicant (or the Company on its behalf) shall,
for the purpose only of complying with its obligations under Clause 7.1 of
this Clause 7 to repay any Long Dated Bond, also be entitled to procure
the issuance of a letter of credit, indemnity or bank guarantee by an
issuing institution acceptable to the relevant Issuing Bank and on terms
and conditions acceptable to the relevant Issuing Bank in respect of the
entire liability of that Issuing Bank under the relevant Long Dated Bond.
In the event that the relevant Issuing Bank agrees to accept such a letter
of credit, indemnity or bank guarantee and the same is duly issued to the
relevant Issuing Bank, on the last day of the Availability Period each
Bank shall, without the need for any further action by that Issuing Bank
or any of the Banks, be released from the indemnity given to that Issuing
Bank pursuant to sub-clause 8.3.2 of Clause 8.3 (Indemnities) of this
Agreement in respect of any claim thereafter paid by that Issuing Bank
under the relevant Long Dated Bond.
8. BONDS
8.1 IMMEDIATELY PAYABLE
If a Bond or any amount outstanding under a Bond is expressed to be
immediately payable, the Applicant shall repay or prepay that amount
immediately.
8.2 CLAIMS UNDER A LETTER OF CREDIT
8.2.1 Each of the Applicant and each Indemnifying Company whose
obligations are supported by a Bond (the "RELEVANT INDEMNIFYING
COMPANY") irrevocably and unconditionally authorises the relevant
Issuing Bank to pay any claim made or purported to be made under
that Bond which appears on its face to be in order (a "CLAIM").
8.2.2 The relevant Issuing Bank shall promptly notify the Applicant and
the Relevant Indemnifying Company if a claim is made upon it under a
Bond. The Applicant
- 17 -
and the Relevant Indemnifying Company agree (on a joint and several
basis) immediately on demand (or, if such Bond provides a time
within which the relevant Issuing Bank must make payment in respect
of a claim, no later than one Business Day before the last date on
which the Issuing Bank must make such payment) to pay to the Agent
for the relevant Issuing Bank an amount equal to the amount of any
claim in respect of a Bond.
8.2.3 Each of the Applicant and the Relevant Indemnifying Companies
acknowledges that each Issuing Bank:
(a) is not obliged to carry out any investigation or seek any
confirmation from any other person before paying a claim; and
(b) deals in documents only and will not be concerned with the
legality of a claim or any underlying transaction or any
available set-off, counterclaim or other defence of any
person.
8.2.4 The obligations of the Applicant and a Relevant Indemnifying Company
under this Clause will not be affected by:
(a) the sufficiency, accuracy or genuineness of any claim or any
other document; or
(b) any incapacity of, or limitation on the powers of, any person
signing a claim or other document.
8.3 INDEMNITIES
8.3.1 The Applicant and the Relevant Indemnifying Company shall (on a
joint and several basis) within 3 Business Days of demand being made
by the relevant Issuing Bank indemnify the relevant Issuing Bank
against any cost, loss or liability incurred by that Issuing Bank
(otherwise than by reason of that Issuing Bank's gross negligence or
wilful misconduct) in acting as the Issuing Bank under any Bond.
8.3.2 Subject to the provisions of Clause 7.1 of Clause 7 (Long Dated
Bonds) and of sub-clause 9.7.2 of Clause 9 (Repayment, Prepayments
and Cancellation), each Bank shall (according to its Proportion)
immediately on demand indemnify the relevant Issuing Bank against
any cost, loss or liability incurred by that Issuing Bank (otherwise
than by reason of the Issuing Bank's gross negligence or wilful
misconduct) in acting as the Issuing Bank under any Bond (unless
that Issuing Bank has been reimbursed by an Obligor pursuant to a
Finance Document).
8.3.3 The Applicant and the Relevant Indemnifying Company shall (on a
joint and several basis) within 3 Business Days of demand being made
on it reimburse any Bank for any payment it makes to any Issuing
Bank under this Clause 8.3 in respect of a Bond.
8.3.4 The obligations of the Applicant, each Indemnifying Company and each
Bank under this Clause 8 are continuing obligations and will extend
to the ultimate balance of sums payable by that Applicant,
Indemnifying Company or Bank in
- 18 -
respect of any Bond, regardless of any intermediate payment or
discharge in whole or in part.
8.3.5 The obligations of the Applicant, each Indemnifying Company and any
Bank under this Clause 8 will not be affected by any act, omission,
matter or thing which, but for this Clause, would reduce, release or
prejudice any of its obligations under this Clause 8 (without
limitation and whether or not known to it or any other person)
including:
(a) any time, waiver or consent granted to, or composition with,
any Obligor, any beneficiary under a Bond or other person;
(b) the release of any other Obligor or any other person under the
terms of any composition or arrangement with any creditor or
any member of the Group;
(c) the taking, variation, compromise, exchange, renewal or
release of, or refusal or neglect to perfect, take up or
enforce, any rights against, or security over assets of, any
Obligor, any beneficiary under a Bond or other person or any
non-presentation or non-observance of any formality or other
requirement in respect of any instrument or any failure to
realise the full value of any security;
(d) any incapacity or lack of power, authority or legal
personality of or dissolution or change in the members or
status of an Obligor, any beneficiary under a Bond or any
other person;
(e) any amendment (however fundamental) or replacement of a
Finance Document, any Bond or any other document or security;
(f) any unenforceability, illegality or invalidity of any
obligation of any person under any Finance Document, any Bond
or any other document or security; or
(g) any insolvency or similar proceedings.
8.4 RIGHTS OF CONTRIBUTION
No Obligor will be entitled to any right of contribution or indemnity from
any Finance Party in respect of any payment it may make under this Clause
8.
8.5 ROLE OF THE ISSUING BANKS
8.5.1 Nothing in this Agreement constitutes any Issuing Bank as a trustee
or fiduciary of any other person.
8.5.2 No Issuing Bank shall be bound to account to any Bank for any sum or
the profit element of any sum received by it for its own account.
8.5.3 Each Issuing Bank may accept deposits from, lend money to and
generally engage in any kind of banking or other business with any
member of the Group.
- 19 -
8.5.4 Each Issuing Bank may rely on:
(a) any representation, notice or document believed by it to be
genuine, correct and appropriately authorised; and
(b) any statement made by a director, authorised signatory or
employee of any person regarding any matters which may
reasonably be assumed to be within his knowledge or within his
power to verify.
8.5.5 Each Issuing Bank may engage, pay for and rely on the advice or
services of any lawyers, accountants, surveyors or other experts.
8.5.6 Each Issuing Bank may act in relation to the Finance Documents
through its personnel and agents.
8.5.7 No Issuing Bank is responsible for:
(a) the adequacy, accuracy and/or completeness of any information
(whether oral or written) supplied by that Issuing Bank or any
other person given in or in connection with any Finance
Document; or
(b) the legality, validity, effectiveness, adequacy or
enforceability of any Finance Document or any other agreement,
arrangement or document entered into, made or executed in
anticipation of or in connection with any Finance Document.
8.6 EXCLUSION OF LIABILITY
8.6.1 Without limiting sub-clause 8.6.2 of this Clause 8.6, no Issuing
Bank will be liable for any action taken by it under or in
connection with any Finance Document, unless directly caused by its
gross negligence or wilful misconduct.
8.6.2 No Party (other than an Issuing Bank) may take any proceedings
against any officer, employee or agent of that Issuing Bank in
respect of any claim it might have against that Issuing Bank or in
respect of any act or omission of any kind by that officer, employee
or agent in relation to any Finance Document and any officer,
employee or agent of that Issuing Bank may rely on this Clause
subject to Clause 1.3 (Third Party Rights) and the provisions of the
Third Parties Act.
8.7 CREDIT APPRAISAL BY THE BANKS
Without affecting the responsibility of any Obligor for information
supplied by it or on its behalf in connection with any Finance Document,
each Bank confirms to each Issuing Bank that it has been, and will
continue to be, solely responsible for making its own independent
appraisal and investigation of all risks arising under or in connection
with any Finance Document.
- 20 -
9. REPAYMENT, PREPAYMENT AND CANCELLATION
9.1 ILLEGALITY
If it becomes unlawful in any applicable jurisdiction for a Bank to
perform any of its obligations as contemplated by this Agreement or to
fund or maintain its participation in any Utilisation:
9.1.1 that Bank shall promptly notify the Agent upon becoming aware of
that event;
9.1.2 upon the Agent notifying the Company and the Applicant, the
Commitment of that Bank will be immediately cancelled; and
9.1.3 the Applicant shall (a) repay that Bank's participation in the
Utilisations and/or (b) within three Business Days of notice being
delivered by the Agent, repay that Bank's proportion of any Bond
issued by any Issuing Bank or, if the illegality affects an Issuing
Bank in its capacity as such, repay the whole of any Bond issued by
that Issuing Bank, or, at the request of that Bank, take such other
measures as may be reasonably practicable (without undue additional
cost to that Obligor) to cure such unlawfulness, in each case on the
date specified by the Bank in the notice delivered to the Agent
(being no earlier than the last day of any applicable grace period
permitted by law).
9.2 CHANGE OF CONTROL
9.2.1 If a Change of Control (as defined in the Senior Notes Indenture or
the Junior Note Indenture as in force on the Effective Date or, if
prior to the Effective Date, as defined in the Draft Indenture
Terms) occurs under the terms of the Senior Notes or the Junior
Notes as in force on the Effective Date (or would have occurred if
the relevant Notes had been outstanding on the such terms at the
relevant time), the Company shall promptly notify the Agent upon
becoming aware of that event and:
(a) the Agent shall if so directed by any Bank, by notice to the
Company:
(i) declare that the Commitment of that Bank is to be
cancelled, and that Commitment shall be cancelled with
effect from the day falling 45 days after such Change of
Control (or, if such day is not a Business Day, the
immediately following Business Day or, if such day would
fall into a different calendar month, the immediately
preceding Business Day); and/or
(ii) declare that full cash cover in respect of that Bank's
participation under this Agreement in respect of each
Bond is due and payable, and such cash cover shall
become due and payable by the Applicant and each
relevant Indemnifying Company on the day falling 45 days
after such Change of Control (or, if such day is not a
Business Day, the immediately following Business Day or,
if such day would fall into a different calendar month,
the immediately preceding Business Day); and
- 21 -
(b) the Agent may, and shall if so directed by the Majority Banks,
by notice to the Company:
(i) declare that the Total Commitments are to be cancelled
and the Total Commitments shall be cancelled with effect
from the day falling 45 days after such Change of
Control (or, if such day is not a Business Day, the
immediately following Business Day, or if such day would
fall into a different calendar month, the immediately
preceding Business Day); and/or
(ii) declare that full cash cover in respect of each Bond is
due and payable, and such cash cover shall become due
and payable by the Applicant and each relevant
Indemnifying Company on the day falling 45 days after
such Change of Control (or, if such day is not a
Business Day, the immediately following Business Day or,
if such day would fall into a different calendar month,
the immediately preceding Business Day).
9.3 VOLUNTARY CANCELLATION
The Applicant (or the Company on the Applicant's behalf) may, if it gives
the Agent not less than 5 Business Days' (or such shorter period as the
Majority Banks may agree) prior notice, cancel the whole or any part
(being a minimum amount of L5,000,000) of the Available Facility. Any
cancellation under this Clause 9.3 shall reduce the Commitments of the
Banks rateably.
9.4 RIGHT OF REPAYMENT AND CANCELLATION IN RELATION TO A SINGLE BANK
9.4.1 If:
(a) any sum payable to any Bank by an Obligor is required to be
increased under sub-clause 14.2.3 of Clause 14.2 (Tax
gross-up); or
(b) any Bank claims indemnification from the Company under Clause
14.3 (Tax indemnity) or Clause 15.1 (Increased costs),
the Applicant (or the Company on behalf of the Applicant) may,
whilst the circumstance giving rise to the requirement or
indemnification continues, give the Agent notice of cancellation of
the Commitment of that Bank and its intention to procure the
repayment of that Bank's participation in the Utilisations.
9.4.2 On receipt of a notice referred to in sub-clause 9.4.1 of this
Clause 9.4, the Commitment of that Bank shall immediately be reduced
to zero.
9.4.3 On the date specified by the Applicant (or the Company) in the
notice under sub-clause 9.4.1 of this Clause 9.4, the Applicant
shall repay that Bank's participation in each Utilisation.
9.5 RESTRICTIONS
9.5.1 Any notice of cancellation or prepayment given by any Party under
this Clause 9 shall be irrevocable and, unless a contrary indication
appears in this
- 22 -
Agreement, shall specify the date or dates upon which the relevant
cancellation or prepayment is to be made and the amount of that
cancellation or prepayment.
9.5.2 Any prepayment under this Agreement shall be made together with
accrued commission and fees on the amount prepaid and, without
premium or penalty.
9.5.3 No amount of the Total Commitments cancelled under this Agreement
may be subsequently reinstated.
9.5.4 If the Agent receives a notice under this Clause 9 it shall promptly
forward a copy of that notice to either the Company or the affected
Bank, as appropriate.
9.5.5 For the avoidance of doubt, if any Bond has been repaid or prepaid
in full (other than pursuant to the provisions of Clause 24.10
(Remedies)), and each of the conditions and requirements of Clause 4
(Conditions and Utilisation) and Clause 5 (Utilisation) are
satisfied, the Base Currency amount of such Bond shall become
available for re-utilisation pursuant and subject to the terms of
this Agreement.
9.6 CASH COVER
On any day where, pursuant to the terms of this Agreement, any Obligor is
required or permitted to repay or prepay any Bond (or part thereof) by the
provision of cash cover or otherwise to provide cash cover in respect of
any Bond, other than (a) where such cash cover is not to be provided for
all the Banks, (b) pursuant to Clause 6.2 or (c) (for the avoidance of
doubt) pursuant to Clause 22 (Security Undertakings), the Base Currency
Amount of cash security provided pursuant to Clause 22 (Security
Undertakings) standing to the credit of the Applicant in the Relevant
Accounts on that day shall be taken into account in calculating the amount
of cash cover so to be provided and only such additional amount of cash
cover shall have to be paid to the Security Trustee as is necessary (when
added to the amount of cash security standing to the credit of the
Applicant in the Relevant Accounts to be taken into account pursuant to
the above provisions) to ensure that the amount otherwise to be repaid,
prepaid or provided as cash cover (as the case may) has been provided in
full.
9.7 DISPOSAL OF INDEMNIFYING COMPANIES
9.7.1 The Company will not sell or dispose of any Equity Interests of any
Indemnifying Company and shall procure that no Subsidiary of the
Company will sell or dispose of any Equity Interests of any
Indemnifying Company unless:
(a) each Issuing Bank which has issued any Bond for the account of
the relevant Indemnifying Company has given its prior consent
to the same;
(b) each Issuing Bank which has issued any Bond for the account of
the relevant Indemnifying Company has released the relevant
Indemnifying Company from its obligations under or in respect
of the Finance Documents in accordance with the provisions of
sub-Clause 9.7.2 below; or
- 23 -
(c) such sale or disposal is made to the Company or to a Non-US
Subsidiary and is permitted under the terms of the Notes
Indentures (an "INTRA-GROUP DISPOSAL").
9.7.2 In the event of any proposed sale or disposition of all of the
Equity Interests of any Indemnifying Company, other than an
Intra-Group Disposal, and provided also that, in the case of such
sale or disposition of the Equity interests of an Indemnifying
Company which is also a Guarantor, such sale or disposition is
permitted pursuant to the terms of the Notes and/or the Notes
Indentures, each relevant Issuing Bank shall release the relevant
Indemnifying Company from its obligations under or in respect of the
Finance Documents immediately prior to the time at which such sale
or disposition is to become effective provided that each relevant
Issuing Bank has at or prior to such time either received repayment
in full in respect of each Bond issued by that Issuing Bank for the
account of the relevant Indemnifying Company or, but only provided
that the relevant Issuing Bank has given its prior consent to the
same, the relevant Indemnifying Company (or the Applicant or the
Company on its behalf) has procured the issuance of a letter of
credit, indemnity or bank guarantee by an issuing institution
acceptable to the relevant Issuing Bank and on terms and conditions
acceptable to the relevant Issuing Bank in respect of the entire
liability of that Issuing Bank under any Bond issued by that Issuing
Bank for the account of the relevant Indemnifying Company. In the
event that the relevant Issuing Bank agrees to accept such a letter
of credit, indemnity or bank guarantee and the same is duly issued
to the relevant Issuing Bank, on the date upon which the relevant
sale or disposition becomes effective each Bank shall, without the
need for any further action by that Issuing Bank or any of the
Banks, be released from the indemnity given to the relevant Issuing
Bank pursuant to sub-clause 8.3.2 of Clause 8.3 (Indemnities) of
this Agreement in respect of any claim thereafter paid by that
Issuing Bank under any Bond in respect of which it has accepted such
letter of credit, indemnity or bank guarantee.
10. DEFAULT INTEREST
10.1 DEFAULT INTEREST
10.1.1 If an Obligor fails to pay any amount payable by it under a Finance
Document on its due date, interest shall accrue on the overdue
amount from the due date up to the date of actual payment (both
before and after judgment) at a rate per annum equal to the
applicable LIBOR plus 0.50% plus 2% plus the applicable Mandatory
Cost (if any) for successive Interest Periods, each of a duration
selected by the Agent (acting reasonably). Any interest accruing
under this Clause 10.1 shall be immediately payable by the relevant
Obligor on demand by the Agent.
10.1.2 Default interest (if unpaid) arising on an overdue amount will be
compounded with the overdue amount at the end of each Interest
Period applicable to that overdue amount but will remain
immediately due and payable.
- 24 -
10.2 NOTIFICATION OF RATES OF INTEREST
The Agent shall promptly notify the Banks and the Company of the
determination of a rate of interest under this Agreement.
11. CHANGES TO THE CALCULATION OF INTEREST
11.1 ABSENCE OF QUOTATIONS
Subject to Clause 11.2 (Market disruption), if LIBOR is to be determined
by reference to the Reference Banks but a Reference Bank does not supply a
quotation by the Specified Time on the Quotation Day, the applicable LIBOR
shall be determined on the basis of the quotations of the remaining
Reference Banks.
11.2 MARKET DISRUPTION
11.2.1 If a Market Disruption Event occurs in relation to an Unpaid Sum
for any Interest Period, then the rate of interest on each Bank's
share of that Unpaid Sum for the Interest Period shall be the rate
per annum which is the sum of:
(a) 0.50%;
(b) the rate notified to the Agent by that Bank as soon as
practicable and in any event before interest is due to be paid
in respect of that Interest Period, to be that which expresses
as a percentage rate per annum the cost to that Bank of
funding its participation in that Unpaid Sum from whatever
source it may reasonably select; and
(c) the Mandatory Cost, if any, applicable to that Bank's
participation in the Unpaid Sum.
11.2.2 In this Agreement "MARKET DISRUPTION EVENT" means:
(a) at or about noon on the Quotation Day for the relevant
Interest Period the Screen Rate is not available and none or
only one of the Reference Banks supplies a rate to the Agent
to determine LIBOR for the relevant currency and Interest
Period; or
(b) before close of business in London on the Quotation Day for
the relevant Interest Period, the Agent receives notifications
from a Bank or Banks (whose participations in an Unpaid Sum
exceed 35 per cent. of that Unpaid Sum) that the cost to it of
obtaining matching deposits in the Relevant Interbank Market
would be in excess of LIBOR.
11.3 ALTERNATIVE BASIS OF INTEREST OR FUNDING
11.3.1 If a Market Disruption Event occurs and the Agent or the Company so
requires, the Agent and the Company shall enter into negotiations
(for a period of not more than thirty days) with a view to agreeing
a substitute basis for determining the rate of interest.
11.3.2 Any alternative basis agreed pursuant to sub-clause 11.3.1 of this
Clause 11.3 shall, with the prior consent of all the Banks and the
Company, be binding on all Parties.
- 25 -
12. BREAK COSTS
12.1 PAYMENT
The Applicant shall, within three Business Days of demand by a Finance
Party, pay to that Finance Party its Break Costs attributable to all or
any part of an Unpaid Sum being paid by that Borrower on a day other than
the last day of an Interest Period for that Unpaid Sum.
12.2 DETERMINATION
Each Bank shall, as soon as reasonably practicable after a demand by the
Agent, provide a certificate confirming the amount of its Break Costs for
any Interest Period in which they accrue.
13. FEES
13.1 ARRANGEMENT FEE
The Company shall on the date of this Agreement pay to the Agent for
distribution to the Banks an arrangement fee in an amount equal to
L1,000,000.
13.2 FRONTING FEE
The Applicant shall pay to the Agent (for the account of the relevant
Issuing Bank) in respect each Bond a fronting fee in the amount of 0.10%
per annum on the outstanding amount (other than the relevant Issuing
Bank's Proportion of that amount) of such Bond (but ignoring for the
purposes of this Clause any repayment or prepayment of any such Bond by
the provision of cash cover and also ignoring all payments of cash
security pursuant to the requirements of Clause 22 (Security
Undertakings)) for the period from its Utilisation Date until its Expiry
Date. The fronting fee will be payable in arrears on each Quarter Date
following the Utilisation Date in respect of the relevant Bond and on the
Expiry Date of the relevant Bond (PROVIDED THAT in respect of any Long
Dated Bond which has been repaid in accordance with Clause 7.1 of Clause 7
(Long Dated Bonds) and Clause 7.2 of Clause 7 (Long Dated Bonds), and in
respect of any other Bond which has been repaid or prepaid in accordance
with paragraphs (ii) or (iii) of sub-clause 1.2.1(i) of Clause 1.2
(Construction), such fee shall no longer be payable in respect of the
period after such prepayment or repayment has been made).
13.3 BONDING FEE
The Applicant shall pay to the Agent (for the account of each Bank) a
bonding fee in the currency of the relevant Bond in the amount of 0.50%
per annum on the outstanding amount of each Bond (but ignoring for the
purposes of this Clause any repayment or prepayment of any such Bond by
the provision of cash cover and also ignoring all payments of cash
security pursuant to the requirements of Clause 22 (Security
Undertakings)) for the period from (and including) the Utilisation Date
until (but not including) the next Quarter Date, and on each subsequent
Quarter Date prior to the Expiry Date of the Relevant Bond (PROVIDED THAT
in respect of any Bond which has been repaid or prepaid in accordance with
paragraph (ii) or (iii) of sub-clause 1.2.1(i) of Clause 1.2
(Construction) such fee shall no longer be payable in respect of the
period after such prepayment or repayment has been made). This fee shall
be distributed according to each Bank's Proportion of the relevant Bond
(PROVIDED THAT in respect of any Long Dated Bond which has been duly
repaid in accordance with Clause 7.1 of Clause 7
- 26 -
(Long Dated Bonds) and Clause 7.2 of Clause 7 (Long Dated Bonds), such fee
shall no longer be distributed to each Bank in respect of the period after
such repayment has been made) and shall be payable in arrears on each
Quarter Date following the Utilisation Date in respect of the relevant
Bond and on the Expiry Date of the relevant Bond.
13.4 ISSUANCE FEE
The Applicant shall pay to the Agent (for the account of the relevant
Issuing Bank) on the Utilisation Date in respect of each Bond an issuance
fee of L1,000 in respect of such Bond.
13.5 AGENCY FEE
The Company shall pay to the Agent (for its own account) an agency fee in
the amount and at the times agreed in the Agency Fee Letter.
14. TAX GROSS UP AND INDEMNITIES
14.1 DEFINITIONS
14.1.1 In this Agreement:
"PROTECTED PARTY" means a Finance Party which is or will be subject
to any liability, or required to make any payment, for or on account
of Tax in relation to a sum received or receivable (or any sum
deemed for the purposes of Tax to be received or receivable) under a
Finance Document.
"TAX CREDIT" means a credit against, relief or remission for, or
repayment of any Tax.
"TAX DEDUCTION" means a deduction or withholding for or on account
of Tax from a payment under a Finance Document.
"TAX PAYMENT" means either the increase in a payment made by an
Obligor to a Finance Party under Clause 14.2 (Tax gross-up) or a
payment under Clause 14.3 (Tax indemnity).
14.1.2 Unless a contrary indication appears, in this Clause 14 a reference
to "determines" or "determined" means a determination made in the
absolute discretion of the person making the determination.
14.2 TAX GROSS-UP
14.2.1 Each Obligor shall make all payments to be made by it without any
Tax Deduction, unless a Tax Deduction is required by law.
14.2.2 The Company shall promptly upon becoming aware that an Obligor must
make a Tax Deduction (or that there is any change in the rate or
the basis of a Tax Deduction) notify the Agent accordingly.
Similarly, a Finance Party shall notify the Agent on becoming so
aware in respect of a payment payable to that Finance Party. If the
Agent receives such notification from a Finance Party it shall
notify the Company and that Obligor.
14.2.3 If a Tax Deduction is required by law to be made by an Obligor, the
amount of the payment due from that Obligor shall be increased to
an amount which (after
- 27 -
making any Tax Deduction) leaves an amount equal to the payment
which would have been due if no Tax Deduction had been required.
14.2.4 If an Obligor is required to make a Tax Deduction, that Obligor
shall make that Tax Deduction and any payment required in
connection with that Tax Deduction within the time allowed and in
the minimum amount required by law.
14.2.5 Within thirty days of making either a Tax Deduction or any payment
required in connection with that Tax Deduction, the Obligor making
that Tax Deduction shall deliver to the Agent for the Finance Party
entitled to the payment evidence reasonably satisfactory to that
Finance Party that the Tax Deduction has been made or (as
applicable) any appropriate payment paid to the relevant taxing
authority.
14.3 TAX INDEMNITY
14.3.1 The Company shall (within three Business Days of demand by the
Agent) pay to a Protected Party an amount equal to the loss,
liability or cost which that Protected Party determines will be or
has been (directly or indirectly) suffered for or on account of Tax
by that Protected Party in respect of a Finance Document.
14.3.2 Sub-clause 14.3.1 of this Clause 14.3 shall not apply:
(a) with respect to any Tax assessed on a Finance Party:
(i) under the law of the jurisdiction in which that Finance
Party is incorporated or, if different, the jurisdiction
(or jurisdictions) in which that Finance Party is
treated as resident for tax purposes; or
(ii) under the law of the jurisdiction in which that Finance
Party's Facility Office is located in respect of amounts
received or receivable in that jurisdiction,
if that Tax is imposed on or calculated by reference to the
net income received or receivable (but not any sum deemed to
be received or receivable) by that Finance Party; or
(b) to the extent a loss, liability or cost is compensated for by
an increased payment under Clause 14.2 (Tax gross-up);
14.3.3 A Protected Party making, or intending to make a claim under
sub-clause 14.3.1 of this Clause 14.3 shall promptly notify the
Agent of the event which will give, or has given, rise to the
claim, following which the Agent shall notify the Company.
14.3.4 A Protected Party shall, on receiving a payment from an Obligor
under this Clause 14.3, notify the Agent.
- 28 -
14.4 TAX CREDIT
If an Obligor makes a Tax Payment and the relevant Finance Party
determines that:
14.4.1 a Tax Credit is attributable either to an increased payment of
which that Tax Payment forms part, or to that Tax Payment; and
14.4.2 that Finance Party has obtained, utilised and retained that Tax
Credit,
the Finance Party shall pay an amount to the Obligor which that Finance
Party determines will leave it (after that payment) in the same after-Tax
position as it would have been in had the Tax Payment not been required to
be made by the Obligor.
14.5 STAMP TAXES
The Company shall pay and, within three Business Days of demand, indemnify
each Finance Party against any cost, loss or liability that Finance Party
incurs in relation to all stamp duty, registration and other similar Taxes
payable in respect of any Finance Document.
14.6 VALUE ADDED TAX
14.6.1 All consideration expressed to be payable under a Finance Document
by any Party to a Finance Party shall be deemed to be exclusive of
any VAT. If VAT is chargeable on any supply made by any Finance
Party to any Party in connection with a Finance Document, that
Party shall pay to the Finance Party (in addition to and at the
same time as paying the consideration) an amount equal to the
amount of the VAT.
14.6.2 Where a Finance Document requires any Party to reimburse a Finance
Party for any costs or expenses, that Party shall also at the same
time pay and indemnify the Finance Party against all VAT incurred
by the Finance Party in respect of the costs or expenses to the
extent that the Finance Party reasonably determines that it is not
entitled to credit or repayment of the VAT.
15. INCREASED COSTS
15.1 INCREASED COSTS
15.1.1 Subject to Clause 15.3 (Exceptions) the Company shall, within three
Business Days of a demand by the Agent, pay for the account of a
Finance Party the amount of any Increased Costs incurred by that
Finance Party or any of its Affiliates as a result of (a) the
introduction of or any change in (or in the interpretation,
administration or application of) any law or regulation or (b)
compliance with any law or regulation made after the date of this
Agreement.
15.1.2 In this Agreement "INCREASED COSTS" means:
(a) a reduction in the rate of return from the Facility or on a
Finance Party's (or its Affiliate's) overall capital;
(b) an additional or increased cost; or
(c) a reduction of any amount due and payable under any Finance
Document,
- 29 -
which is incurred or suffered by a Finance Party or any of its
Affiliates to the extent that it is attributable to that Finance
Party having entered into its Commitment or funding or performing
its obligations under any Finance Document.
15.2 INCREASED COST CLAIMS
15.2.1 A Finance Party intending to make a claim pursuant to Clause 15.1
(Increased costs) shall notify the Agent of the event giving rise
to the claim, following which the Agent shall promptly notify the
Company.
15.2.2 Each Finance Party shall, as soon as practicable after a demand by
the Agent, provide a certificate confirming the amount of its
Increased Costs.
15.3 EXCEPTIONS
15.3.1 Clause 15.1 (Increased costs) does not apply to the extent any
Increased Cost is:
(a) attributable to a Tax Deduction required by law to be made by
an Obligor;
(b) compensated for by Clause 14.3 (Tax indemnity);
(c) compensated for by the payment of the Mandatory Cost; or
(d) attributable to the wilful breach by the relevant Finance
Party or its Affiliates of any law or regulation.
15.3.2 In this Clause 15.3, a reference to a "TAX DEDUCTION" has the same
meaning given to the term in Clause 14.1 (Definitions).
16. OTHER INDEMNITIES
16.1 CURRENCY INDEMNITY
16.1.1 If any sum due from an Obligor under the Finance Documents (a
"SUM"), or any order, judgment or award given or made in relation
to a Sum, has to be converted from the currency (the "FIRST
CURRENCY") in which that Sum is payable into another currency (the
"SECOND CURRENCY") for the purpose of:
(a) making or filing a claim or proof against that Obligor;
(b) obtaining or enforcing an order, judgment or award in relation
to any litigation or arbitration proceedings,
that Obligor shall as an independent obligation, within three
Business Days of demand, indemnify each Finance Party to whom that
Sum is due against any cost, loss or liability arising out of or as
a result of the conversion including any discrepancy between (i) the
rate of exchange used to convert that Sum from the First Currency
into the Second Currency and (ii) the rate or rates of exchange
available to that person at the time of its receipt of that Sum.
16.1.2 Each Obligor waives any right it may have in any jurisdiction to
pay any amount under the Finance Documents in a currency or
currency unit other than that in which it is expressed to be
payable.
- 30 -
16.2 OTHER INDEMNITIES
The Company shall (or shall procure that an Obligor will), within three
Business Days of demand, indemnify each Finance Party against any cost,
loss or liability incurred by that Finance Party as a result of:
16.2.1 the occurrence of any Event of Default; or
16.2.2 a failure by an Obligor to pay any amount due under a
Finance Document on its due date, including without limitation, any
cost, loss or liability arising as a result of Clause 29 (Sharing
among the Finance Parties).
16.3 INDEMNITY TO THE AGENT AND SECURITY TRUSTEE
The Company shall promptly indemnify the Agent and the Security Trustee
against any cost, loss or liability incurred by the Agent or the Security
Trustee as a result of:
16.3.1 investigating any event which it reasonably believes is a Default;
or
16.3.2 acting or relying on any notice, request or instruction which it
reasonably believes to be genuine, correct and appropriately
authorised.
17. MITIGATION BY THE BANKS
17.1 MITIGATION
17.1.1 Each Finance Party shall, in consultation with the Company, take
all reasonable steps to mitigate any circumstances which arise and
which would result in any amount becoming payable under or pursuant
to, or cancelled pursuant to, any of Clause 9.1 (Illegality),
Clause 14 (Tax gross-up and indemnities), Clause 15 (Increased
costs) or paragraph 3 of Schedule 4 (Mandatory Cost Formulae)
including (but not limited to) transferring its rights and
obligations under the Finance Documents to another Affiliate or
Facility Office or to another bank or financial institution willing
to participate in the Facility (PROVIDED THAT no Finance Party
shall have any obligation to take any steps to identify any such
other bank or financial institution).
17.1.2 Sub-clause 17.1.1 of this Clause 17.1 does not in any way limit the
obligations of any Obligor under the Finance Documents.
17.2 LIMITATION OF LIABILITY
17.2.1 The Company shall indemnify each Finance Party for all costs and
expenses reasonably incurred by that Finance Party as a result of
steps taken by it under Clause 17.1 (Mitigation).
17.2.2 A Finance Party is not obliged to take any steps under Clause 17.1
(Mitigation) if, in the opinion of that Finance Party (acting
reasonably), to do so might be prejudicial to it.
18. COSTS AND EXPENSES
18.1 TRANSACTION EXPENSES
The Company shall promptly on demand pay the Agent and the Security
Trustee the amount of all costs and expenses (including legal fees)
reasonably incurred by either of
- 31 -
them in connection with the negotiation, preparation, printing, execution
and syndication of:
18.1.1 this Agreement and any other documents referred to in this
Agreement; and
18.1.2 any other Finance Documents executed after the date of this
Agreement.
18.2 AMENDMENT COSTS
If (a) an Obligor requests an amendment, waiver or consent or (b) an
amendment is required pursuant to Clause 30.9 (Change of currency), the
Company shall, within three Business Days of demand, reimburse the Agent
and the Security Trustee for the amount of all costs and expenses
(including legal fees) reasonably incurred by the Agent or the Security
Trustee in responding to, evaluating, negotiating or complying with that
request or requirement.
18.3 ENFORCEMENT COSTS
The Company shall, within three Business Days of demand, pay to each
Finance Party the amount of all costs and expenses (including legal fees)
incurred by that Finance Party in connection with the enforcement of, or
the preservation of any rights under, any Finance Document.
19. GUARANTEE AND INDEMNITY
19.1 GUARANTEE AND INDEMNITY
The Company irrevocably and unconditionally:
19.1.1 guarantees to each Finance Party punctual performance by each other
Obligor of all of that Obligor's obligations under the Finance
Documents;
19.1.2 undertakes with each Finance Party that whenever an Obligor does
not pay any amount when due under or in connection with any Finance
Document, the Company shall immediately on demand pay that amount
as if it was the principal obligor; and
19.1.3 indemnifies each Finance Party immediately on demand against any
cost, loss or liability suffered by that Finance Party if any
obligation guaranteed by it is or becomes unenforceable, invalid or
illegal. The amount of the cost, loss or liability shall be equal
to the amount which that Finance Party would otherwise have been
entitled to recover.
19.2 CONTINUING GUARANTEE
This guarantee is a continuing guarantee and will extend to the ultimate
balance of sums payable by any Obligor under the Finance Documents,
regardless of any intermediate payment or discharge in whole or in part.
- 32 -
19.3 REINSTATEMENT
If any payment by an Obligor or any discharge given by a Finance Party
under or in respect of any Finance Document (whether in respect of the
obligations of any Obligor or any security for those obligations or
otherwise) is avoided or reduced as a result of insolvency or any similar
event:
19.3.1 the liability of each Obligor shall continue as if the payment,
discharge, avoidance or reduction had not occurred; and
19.3.2 each Finance Party shall be entitled to recover the value or amount
of that security or payment from each Obligor, as if the payment,
discharge, avoidance or reduction had not occurred.
19.4 WAIVER OF DEFENCES
The obligations of the Company under this Clause 19 will not be affected
by any act, omission, matter or thing which, but for this Clause, would
reduce, release or prejudice any of its obligations under this Clause 19
including (without limitation and whether or not known to it or any
Finance Party):
19.4.1 any time, waiver or consent granted to, or composition with, any
Obligor or other person;
19.4.2 the release of any other Obligor or any other person under the
terms of any composition or arrangement with any creditor of any
member of the Group;
19.4.3 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;
19.4.4 any incapacity or lack of power, authority or legal personality of
or dissolution or change in the members or status of an Obligor or
any other person;
19.4.5 any amendment (however fundamental) or replacement of a Finance
Document or any other document or security;
19.4.6 any unenforceability, illegality or invalidity of any obligation of
any person under any Finance Document or any other document or
security; or
19.4.7 any insolvency or similar proceedings.
19.5 IMMEDIATE RECOURSE
The Company waives any right it may have of first requiring any Finance
Party (or any trustee or agent on its behalf) to proceed against or
enforce any other rights or security or claim payment from any person
before claiming from the Company under this Clause 19. This waiver applies
irrespective of any law or any provision of a Finance Document to the
contrary.
- 33 -
19.6 APPROPRIATIONS
Until all amounts which may be or become payable by the Obligors under or
in connection with the Finance Documents have been irrevocably paid in
full, each Finance Party (or any trustee or agent on its behalf) may:
19.6.1 refrain from applying or enforcing any other moneys, security or
rights held or received by that Finance Party (or any trustee or
agent on its behalf) in respect of those amounts, or apply and
enforce the same in such manner and order as it sees fit (whether
against those amounts or otherwise) and the Company shall not be
entitled to the benefit of the same; and
19.6.2 hold in an interest-bearing suspense account any moneys received
from the Company or on account of the Company's liability under
this Clause 19.
19.7 DEFERRAL OF COMPANY'S RIGHTS
Until all amounts which may be or become payable by the Obligors under or
in connection with the Finance Documents have been irrevocably paid in
full and unless the Agent otherwise directs, the Company will not exercise
any rights which it may have by reason of performance by it of its
obligations under the Finance Documents:
19.7.1 to be indemnified by an Obligor;
19.7.2 to claim any contribution from any other guarantor of any Obligor's
obligations under the Finance Documents; and/or
19.7.3 to take the benefit (in whole or in part and whether by way of
subrogation or otherwise) of any rights of the Finance Parties
under the Finance Documents or of any other guarantee or security
taken pursuant to, or in connection with, the Finance Documents by
any Finance Party.
19.8 ADDITIONAL SECURITY
This guarantee is in addition to and is not in any way prejudiced by any
other guarantee or security now or subsequently held by any Finance Party.
20. REPRESENTATIONS
Other than where expressly stated to the contrary, each Obligor makes the
representations and warranties set out in this Clause 20 to each Finance
Party on the date of this Agreement.
20.1 STATUS
It is a corporation, duly incorporated and validly existing under the law
of its jurisdiction of incorporation.
20.2 BINDING OBLIGATIONS
The obligations expressed to be assumed by it in each Finance Document
are, subject to any general principles of law limiting its obligations
which are specifically referred to in any legal opinion delivered pursuant
to Clause 4 (Conditions of Utilisation) or Clause 26 (Changes to the
Obligors), legal, valid, binding and enforceable obligations.
- 34 -
20.3 NON-CONFLICT WITH OTHER OBLIGATIONS
The entry into and performance by it of, and the transactions contemplated
by, the Finance Documents do not and will not conflict with:
20.3.1 any law or regulation applicable to it;
20.3.2 its constitutional documents; or
20.3.3 any agreement or instrument binding upon it or any of its assets.
20.4 POWER AND AUTHORITY
It has the power to enter into, perform and deliver, and has taken all
necessary action to authorise its entry into, performance and delivery of,
the Finance Documents to which it is a party and the transactions
contemplated by those Finance Documents.
20.5 VALIDITY AND ADMISSIBILITY IN EVIDENCE
All Authorisations required or desirable:
20.5.1 to enable it lawfully to enter into, exercise its rights and comply
with its obligations in the Finance Documents to which it is a
party; and
20.5.2 to make the Finance Documents to which it is a party admissible in
evidence in its jurisdiction of incorporation,
have been obtained or effected and are in full force and effect.
20.6 GOVERNING LAW AND ENFORCEMENT
Subject to any reservations, qualifications or assumptions contained in
any of the legal opinions delivered pursuant to paragraph 2, Part A
(Conditions Precedent to Initial Utilisation), Schedule 2 or pursuant to
paragraphs 7 and 8, Part B (Conditions Precedent Required to be Delivered
by an Additional Obligor), Schedule 2 of this Agreement which are accepted
by the Facility Agent:
20.6.1 The choice of English law as the governing law of the Finance
Documents will be recognised and enforced in its jurisdiction of
incorporation.
20.6.2 Any judgment obtained in England in relation to a Finance Document
will be recognised and enforced in its jurisdiction of
incorporation.
20.7 NO FILING OR STAMP TAXES
Under the law of its jurisdiction of incorporation it is not necessary
that the Finance Documents be filed, recorded or enrolled with any court
or other authority in that jurisdiction or that any stamp, registration or
similar tax be paid on or in relation to the Finance Documents or the
transactions contemplated by the Finance Documents.
20.8 NO DEFAULT
(made only by the Company) No Event of Default is continuing or might
reasonably be expected to result from the making of any Utilisation.
- 35 -
20.9 SECURITY
(made only by the Company and the Applicant) The Security expressed to be
created under the Security Agreement constitutes a valid, first priority
charge over the assets expressed to be charged thereunder.
20.10 REPETITION
The Repeating Representations are deemed to be made by each Obligor by
reference to the facts and circumstances then existing on:
20.10.1 the date of each Utilisation Request and the first day of each
Term; and
20.10.2 in the case of an Additional Indemnifying Company, the day on
which the company becomes (or it is proposed that the company
becomes) an Additional Indemnifying Company.
21. INFORMATION UNDERTAKINGS
21.1 FINANCIAL STATEMENTS
The Company will provide to the Agent (in sufficient copies for all the
Banks) certified copies of all information which is required to be
delivered pursuant to the terms (as in force on the Effective Date) of the
section headed "SEC Reports: Other Information of the Senior Notes
Indenture (or which would be required to be delivered under such terms if
any of the Notes were still outstanding) within the time periods specified
in such section of the Senior Notes Indenture.
21.2 INFORMATION: MISCELLANEOUS
The Company shall supply to the Agent (in sufficient copies for all the
Banks, if the Agent so requests) promptly, such further information
regarding the financial condition, business and operations of any member
of the Group as any Finance Party (through the Agent) may reasonably
request.
21.3 NOTIFICATION OF DEFAULT
21.3.1 Each Obligor shall notify the Agent of any Default (and the steps,
if any, being taken to remedy it) promptly upon becoming aware of
its occurrence (unless that Obligor is aware that a notification
has already been provided by another Obligor).
21.3.2 Promptly upon a request by the Agent, the Company shall supply to
the Agent a certificate signed by two of its directors or senior
officers on its behalf certifying that to the best of the Company's
knowledge and belief (after making due and proper enquiry) no
Default is continuing (or if a Default is continuing, specifying
the Default and the steps, if any, being taken to remedy it).
21.4 DURATION OF UNDERTAKINGS
The undertakings in this Clause 21 remain in force from the date of this
Agreement for so long as any amount is outstanding under the Finance
Documents or in respect of any Bond or any Commitment is in force,
provided that from the date that each Long Dated Bond has been duly repaid
in accordance with Clause 7.1 of Clause 7 (Long Dated Bonds) or Clause 7.2
of Clause 7 (Long Dated Bonds):
- 36 -
21.4.1 the undertakings set out in Clause 21.1 (Financial Statements),
Clause 21.2 (Information: Miscellaneous) and sub-clause 21.3.2 of
Clause 21.3 (Notification of Default) shall no longer have effect
from the expiry of the Availability Period; and
21.4.2 the undertaking set out in sub-clause 21.3.1 of Clause 21.3
(Notification of Default) shall continue to have effect but so that
each Obligor shall only be under an obligation to notify the Agent
of any Event of Default under Clause 24.6 (Insolvency) and Clause
24.7 (Insolvency Proceedings) upon the terms set out in sub-clause
21.3.1 of Clause 21.3 (Notification of Default).
22. SECURITY UNDERTAKINGS
22.1 INITIAL CASH SECURITY
As security for its obligations under the Finance Documents, the Applicant
will by no later than 11 a.m. one day before the proposed date of issue of
a Bond by an Issuing Bank deposit as cash security an amount equal to 50%
of:
22.1.1 in the case of any Bond to be denominated in the Base Currency,
euro or dollars, the maximum face amount of such Bond (such deposit
to be made in the currency of the relevant Bond); and
22.1.2 in the case of a Bond to be denominated in an Optional Currency
other than euro or dollars, the Dollar Amount of such Bond (such
deposit to be made in dollars),
in each case to the appropriate Relevant Account to be held by the
Security Trustee under the terms of the Security Agreement (such cash
security being "INITIAL CASH Security").
22.2 If any Initial Cash Security has been provided in respect of a Bond
pursuant to sub-clause 22.1.2 of Clause 22.1 (Initial Cash Security), the
Security Trustee shall at six monthly intervals after the Effective Date
recalculate the Dollar Amount of that Bond and the Security Trustee shall
promptly notify the Company of the amount so determined. If necessary, the
Applicant shall within three Business Days of receiving such notification
ensure that a further amount of dollars is deposited in the appropriate
Relevant Account to ensure that the Security Trustee holds cash security
which (when added to the Initial Cash Security provided in respect of the
relevant Bond) is of a value equal to 50% of the Dollar Amount of all
Bonds denominated in Optional Currencies other than euro or dollars
(ignoring for this purpose cash cover provided in respect of such Bonds).
In no event shall the Security Trustee be under any obligation to repay
any amount of Initial Cash Security pursuant to this Clause.
22.3 ROLL-OVER OF INITIAL CASH SECURITY
22.3.1 In the event that at any time during the Availability Period, an
Issuing Bank is satisfied that it has no further liability under or
in respect of a Bond issued by it (such Bond being a "DISCHARGED
BOND"), if the Applicant so requests in the Utilisation Request for
any other Bond to be issued on or after the date upon which such
first Bond becomes a Discharged Bond, the Base Currency Amount of
the Initial Cash Security in respect of the Discharged Bond
standing to the
- 37 -
credit of the Applicant in the Relevant Accounts on the day on
which such new Bond is to be issued shall (unless the amount
thereof has also been taken into account pursuant to Clause 9.6
(Cash Cover) for any other purpose pursuant to the provisions of
this Agreement) be taken into account in calculating the amount of
Initial Cash Security required to be provided in respect of the new
Bond requested to be issued and only such additional amount of cash
security shall have to be paid in to the Relevant Accounts as is
necessary (when added to the Base Currency Amount of the Initial
Cash Security in respect of the Discharged Bond to be taken into
account pursuant to the above provisions) to ensure that the amount
of Initial Cash Security in respect of the new Bond which would
otherwise be required to be provided pursuant to Clause 22.1
(Initial Cash Security) has been provided in full.
22.3.2 The amount of any Initial Cash Security in respect of a Discharged
Bond taken into account pursuant to the provisions of sub-clause
22.3.1 shall be taken into account once only (but for the avoidance
of doubt, provided that the conditions set out in sub-clause 22.3.1
are met, the Initial Cash Security in respect of any new Bond,
including any element thereof arising pursuant to the provisions of
sub-clause 22.3.1, may be taken account of in a like manner should
such new Bond in due course become a Discharged Bond).
22.4 FURTHER CASH SECURITY
As further security for the obligations of the Applicant under the Finance
Documents, the Applicant will ensure that the following additional amounts
of cash security are from time to time promptly deposited in the Relevant
Accounts to be held by the Security Trustee under the terms of the
Security Agreement:
22.4.1 all Existing Performance Bond Releases, but only to the extent
required by, and in accordance with the terms of the Escrow
Agreement and the Notes Indentures;
22.4.2 all Existing Performance Bond Releases, in but only to the extent
required by, and in accordance with, the terms of the Notes
Indentures; and
22.4.3 all Interim Bonding Facilities Releases, but only to the extent
required by, and in accordance with, the terms of Notes Indentures.
22.5 The Applicant's obligations to provide cash security in accordance with
Clause 22.1 (Initial Cash Security) and Clause 22.4 (Further Cash
Security) are and shall be without prejudice to any other obligation of
the Company, the Applicant or any Indemnifying Company to provide any
other cash cover pursuant to the terms of this Agreement.
22.6 INTEREST
Interest shall accrue on the balance standing to the credit of each
Relevant Account at such commercial rate and with such interest periods as
the Security Trustee shall specify from time to time. All such interest on
a Relevant Account shall be for the account of the Applicant and be
credited to that Relevant Account.
- 38 -
23. GENERAL UNDERTAKINGS
The undertakings in this Clause 23 remain in force from the date of this
Agreement for so long as any amount is outstanding under the Finance
Documents or in respect of any Bond or any Commitment is in force.
23.1 AUTHORISATIONS
Each Obligor shall promptly:
23.1.1 obtain, comply with and do all that is necessary to maintain in
full force and effect; and
23.1.2 supply certified copies to the Agent of,
any Authorisation required under any law or regulation of its jurisdiction
of incorporation to enable it to perform its obligations under the Finance
Documents and to ensure the legality, validity, enforceability or
admissibility in evidence in its jurisdiction of incorporation of any
Finance Document.
23.2 COMPLIANCE WITH LAWS
Each Obligor shall comply in all respects with all laws to which it may be
subject, if failure so to comply would materially impair its ability to
perform its obligations under the Finance Documents.
23.3 APPLICANT TO BE SPECIAL PURPOSE VEHICLE
The Applicant shall not trade or carry on any business, own any assets or
incur any liabilities except (a) for those contemplated by the Finance
Documents, (b) pursuant to the Interim Bonding Facilities or any
Replacement Facilities (and the related collateral in respect thereof),
(c) for loans provided to the Applicant by other members of the Group the
proceeds of which are or have been applied by the Applicant in providing
cash cover or Initial Cash Security pursuant to the terms of this
Agreement or the Interim Bonding Facilities, (d) for the guarantees and
Security to be granted by it pursuant to the Notes and the Notes
Indentures and (e) for and in connection with the carrying out of such
activities necessary to or directly incidental to the maintenance of its
corporate existence.
24. EVENTS OF DEFAULT
Each of the events or circumstances set out in Clause 24 is an Event of
Default save that (a) PROVIDED THAT all Long Dated Bonds have been repaid
in accordance with Clause 7.1 of Clause 7 (Long Dated Bonds) and Clause
7.2 of Clause 7 (Long Dated Bonds), the occurrence of any of such events
or circumstances after the expiry of the Availability Period (excluding
the events and circumstances set out in Clause 24.1 (Non-payment), 24.6
(Insolvency) or 24.7 (Insolvency proceedings) shall not constitute an
Event of Default and (b) none of the events and circumstances set out in
Clause 24.6 (Insolvency) or Clause 24.7 (Insolvency Proceedings) shall of
itself constitute an Event of Default where such event or circumstance
arises solely and directly as a consequence of the implementation of the
Scheme.
- 39 -
24.1 NON-PAYMENT
An Obligor does not pay on the due date any amount payable pursuant to a
Finance Document at the place, and time and in the currency in which it is
expressed to be payable unless:
24.1.1 its failure to pay is caused by administrative or technical error;
and
24.1.2 payment is made within 3 Business Days of its due date.
24.2 SECURITY
Any requirement of Clause 22 (Security undertakings) is not satisfied.
24.3 OTHER OBLIGATIONS
24.3.1 An Obligor does not comply with any provision of the Finance
Documents (other than those referred to in Clause 24.1
(Non-payment) and Clause 24.2 (Security)).
24.3.2 No Event of Default under sub-clause 24.3.1 of this Clause 24.3 in
relation will occur if the failure to comply is capable of remedy
and is remedied within 5 Business Days of the Agent giving notice
to the Company or the Company becoming aware of the failure to
comply.
24.4 MISREPRESENTATION
Any representation or statement made or deemed to be made by an Obligor in
the Finance Documents or any other document delivered by or on behalf of
any Obligor under or in connection with any Finance Document is or proves
to have been incorrect or misleading in any material respect when made or
deemed to be made.
24.5 CROSS DEFAULT
Any Event of Default (as defined in the Senior Notes Indenture or the
Junior Notes Indenture as in force on the Effective Date) occurs under the
terms of any of the Senior Notes or the Junior Notes as in force on the
Effective Date (or would have occurred if the relevant Notes had been
outstanding on such terms at the relevant time).
24.6 INSOLVENCY
24.6.1 The Company or the Applicant is unable or admits its inability to
pay its debts as they fall due, suspends making payments on any of
its debts or, by reason of actual or anticipated financial
difficulties, commences negotiations with one or more of its
creditors with a view to rescheduling any of its indebtedness.
24.6.2 The value of the assets of the Company or the Applicant is less
than its liabilities (taking into account contingent and
prospective liabilities).
24.6.3 A moratorium is declared in respect of any indebtedness of the
Company or the Applicant.
- 40 -
24.7 INSOLVENCY PROCEEDINGS
Any corporate action, legal proceedings or other procedure or step is
taken in relation to:
24.7.1 the suspension of payments, a moratorium of any indebtedness,
winding-up, dissolution, administration or reorganisation (by way
of voluntary arrangement, scheme of arrangement or otherwise) of
the Company or the Applicant;
24.7.2 a composition, assignment or arrangement with any creditor of the
Company or the Applicant;
24.7.3 the appointment of a liquidator, receiver, administrator,
administrative receiver, compulsory manager or other similar
officer in respect of the Company or the Applicant or any of its
assets; or
24.7.4 enforcement of any Security over any assets of the Company or the
Applicant,
or any analogous procedure or step is taken in any jurisdiction, save that
the above provisions do not apply to (a) the mere presentation of a
statutory demand against the Company or the Applicant or the presentation
of a petition for the winding-up of the Company or the Applicant by a
creditor provided that the same is contested in good faith and with due
diligence and is discharged or struck out within 30 days of the
presentation thereof or (b) (for the avoidance of doubt) the set-off
against or appropriation by the Security Trustee or any Bank of any moneys
standing to the credit of any Relevant Account or other account with the
Security Trustee or any Bank into which cash cover has been paid pursuant
to the terms of the Security Agreement or the security document relating
to that account in circumstances where such set-off or appropriation is
made in satisfaction of the liabilities of the Applicant or any Relevant
Indemnifying Company under sub-clause 8.2.2 of Clause 8.2 (Claims under a
Letter of Credit) or sub-clause 8.3.2 of Clause 8.3 (Indemnities).
24.8 UNLAWFULNESS
It is or becomes unlawful for an Obligor to perform any of its obligations
under the Finance Documents.
24.9 REPUDIATION
An Obligor repudiates a Finance Document or evidences an intention to
repudiate a Finance Document.
24.10 REMEDIES
On and at any time after the occurrence of an Event of Default which is
continuing:
24.10.1 the Agent shall if so directed by any Bank, by notice to the
Company:
(a) cancel the Commitment of that Bank whereupon that Commitment
shall immediately be cancelled; and/or
(b) declare that full cash cover in respect of that Bank's
participation under this Agreement in respect of each Bond is
immediately due and payable whereupon it shall become
immediately due and payable by the Applicant and each
Indemnifying Company; and
- 41 -
24.10.2 the Agent may, and shall if so directed by the Majority Banks, by
notice to the Company:
(a) cancel the Total Commitments whereupon they shall immediately
be cancelled; and/or
(b) declare that full cash cover in respect of each Bond is
immediately due and payable whereupon it shall become
immediately due and payable by the Applicant and each
Indemnifying Company.
25. CHANGES TO THE BANKS
25.1 ASSIGNMENTS AND TRANSFERS BY THE BANKS
Subject to this Clause 25, a Bank (the "EXISTING BANK") may:
25.1.1 assign any of its rights; or
25.1.2 transfer by novation any of its rights and obligations,
under the Finance Documents to another bank or financial institution or to
a trust, fund or other entity which is regularly engaged in or established
for the purpose of making, purchasing or investing in loans, securities or
other financial assets (the "NEW BANK").
25.2 CONDITIONS OF ASSIGNMENT OR TRANSFER
25.2.1 The consent of each Issuing Bank is required for an assignment or
transfer by a Bank.
25.2.2 An assignment will only be effective on receipt by the Agent of
written confirmation from the New Bank (in form and substance
satisfactory to the Agent) that the New Bank will assume the same
obligations to the other Finance Parties as it would have been
under if it was an Original Bank.
25.2.3 A transfer will only be effective if all the procedures set out in
Clause 25.5 (Procedure for transfer) are complied with.
25.2.4 If:
(a) a Bank assigns or transfers any of its rights or obligations
under the Finance Documents or changes its Facility Office;
and
(b) as a result of circumstances existing at the date the
assignment, transfer or change occurs, an Obligor would be
obliged to make a payment to the New Bank or Bank acting
through its new Facility Office under Clause 14 (Tax gross-up
and indemnities) or Clause 15 (Increased Costs),
then the New Bank or Bank acting through its new Facility Office is only
entitled to receive payment under those Clauses to the same extent as the
Existing Bank or Bank acting through its previous Facility Office would
have been if the assignment, transfer or change had not occurred.
- 42 -
25.3 ASSIGNMENT OR TRANSFER FEE
The New Bank shall, on the date upon which an assignment or transfer takes
effect, pay to the Agent (for its own account) a fee of L1,000.
25.4 LIMITATION OF RESPONSIBILITY OF EXISTING BANKS
25.4.1 Unless expressly agreed to the contrary, an Existing Bank makes no
representation or warranty and assumes no responsibility to a New
Bank for:
(a) the legality, validity, effectiveness, adequacy or
enforceability of the Finance Documents or any other
documents;
(b) the financial condition of any Obligor;
(c) the performance and observance by any Obligor of its
obligations under the Finance Documents or any other
documents; or
(d) the accuracy of any statements (whether written or oral) made
in or in connection with any Finance Document or any other
document,
and any representations or warranties implied by law are excluded.
25.4.2 Each New Bank confirms to the Existing Bank and the other Finance
Parties that it:
(a) has made (and shall continue to make) its own independent
investigation and assessment of the financial condition and
affairs of each Obligor and its related entities in connection
with its participation in this Agreement and has not relied
exclusively on any information provided to it by the Existing
Bank 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
whilst any amount is or may be outstanding under the Finance
Documents or any Commitment is in force.
25.4.3 Nothing in any Finance Document obliges an Existing Bank to:
(a) accept a re-transfer from a New Bank of any of the rights and
obligations assigned or transferred under this Clause 25; or
(b) support any losses directly or indirectly incurred by the New
Bank by reason of the non-performance by any Obligor of its
obligations under the Finance Documents or otherwise.
25.5 PROCEDURE FOR TRANSFER
25.5.1 Subject to the conditions set out in Clause 25.2 (Conditions of
assignment or transfer) a transfer is effected in accordance with
sub-clause 25.5.2 of this Clause 25.5 when the Agent executes an
otherwise duly completed Transfer Certificate delivered to it by
the Existing Bank and the New Bank. The Agent shall, as soon as
reasonably practicable after receipt by it of a duly completed
Transfer Certificate appearing on its face to comply with the terms
of this
- 43 -
Agreement and delivered in accordance with the terms of this
Agreement, execute that Transfer Certificate.
25.5.2 The Existing Bank shall at the same time as it delivers to the
Agent the Transfer Certificate, as required under sub-clause 25.5.1
of this Clause 25.5,
(i) send to the Company a copy of such Transfer Certificate, and
(ii) deliver to the STID Security Trustee a duly completed
Agent/Trustee/New Bonding Facility Bank Accession Letter (as
defined in the Security Trust and Intercreditor Deed) as a New
Bonding Facility Bank (as defined in the Security Trust and
Intercreditor Deed) pursuant to clause 22.4 (Other Parties) of
the Security Trust and Intercreditor Deed.
25.5.3 On the Transfer Date:
(a) to the extent that in the Transfer Certificate the Existing
Bank seeks to transfer by novation its rights and obligations
under the Finance Documents each of the Obligors and the
Existing Bank shall be released from further obligations
towards one another under the Finance Documents and their
respective rights against one another under the Finance
Documents shall be cancelled (being the "DISCHARGED RIGHTS AND
OBLIGATIONS");
(b) each of the Obligors and the New Bank shall assume obligations
towards one another and/or acquire rights against one another
which differ from the Discharged Rights and Obligations only
insofar as that Obligor and the New Bank have assumed and/or
acquired the same in place of that Obligor and the Existing
Bank;
(c) the Agent, the Security Trustee, the Issuing Banks, the New
Bank and other Banks shall acquire the same rights and assume
the same obligations between themselves as they would have
acquired and assumed had the New Bank been an Original Bank
with the rights and/or obligations acquired or assumed by it
as a result of the transfer and to that extent the Agent, the
Arranger and the Existing Bank shall each be released from
further obligations to each other under the Finance Documents;
and
(d) the New Bank shall become a Party as a "Bank".
25.6 DISCLOSURE OF INFORMATION
25.6.1 Each Finance Party must keep confidential any information supplied
to it by or on behalf of any Obligor in connection with the Finance
Documents ("CONFIDENTIAL INFORMATION"). However, a Finance Party is
entitled to disclose information:
(a) which is publicly available, other than as a result of a
breach by that Finance Party of this Clause;
(b) in connection with any legal or arbitration proceedings;
- 44 -
(c) if required to do so under any law or regulation;
(d) to a governmental, banking, taxation or other regulatory
authority;
(e) to its professional advisers;
(f) to any Secured Creditor and any member of the Group;
(g) to the extent allowed under sub clause 25.6.2 below; or
(h) with the agreement of the relevant Obligor.
25.6.2 Any Finance Party may also disclose to any of its Affiliates and
any other person:
(a) to (or through) whom that Finance Party assigns or transfers
(or may potentially assign or transfer) all or any of its
rights and obligations under this Agreement;
(b) with (or through) whom that Finance Party enters into (or may
potentially enter into) any sub-participation in relation to,
or any other transaction under which payments are to be made
by reference to, this Agreement or any Obligor;
any Confidential Information as that Finance Party shall consider
appropriate if the person to whom the information is to be given has
entered into a Confidentiality Undertaking.
26. CHANGES TO THE OBLIGORS
26.1 ASSIGNMENTS AND TRANSFER BY OBLIGORS
No Obligor may assign any of its rights or transfer any of its rights or
obligations under the Finance Documents.
26.2 ADDITIONAL INDEMNIFYING COMPANIES
26.2.1 The Company may request that any of its wholly owned Subsidiaries
which is a Non-US Subsidiary becomes an Additional Indemnifying
Company. That Subsidiary shall become an Additional Indemnifying
Company if:
(a) the Company delivers to the Agent a duly completed and
executed Accession Letter;
(b) the Company confirms that no Default is continuing or would
occur as a result of that Subsidiary becoming an Additional
Indemnifying Company; and
(c) the Agent has received all of the documents and other evidence
listed in Part B (Conditions precedent required to be
delivered by an Additional Obligor) of Schedule 2 in relation
to that Additional Indemnifying Company, each in form and
substance satisfactory to the Agent.
- 45 -
26.2.2 The Agent shall notify the Company and the Banks promptly upon
being satisfied that it has received (in form and substance
satisfactory to it) all the documents and other evidence listed in
Part B (Conditions precedent required to be delivered by an
Additional Obligor) of Schedule 2.
26.3 REPETITION OF REPRESENTATIONS
Delivery of an Accession Letter constitutes confirmation by the relevant
Subsidiary that the Repeating Representations to be given by it are true
and correct in relation to it as at the date of delivery as if made by
reference to the facts and circumstances then existing.
27. ROLE OF THE AGENT AND THE SECURITY TRUSTEE
27.1 APPOINTMENT OF THE AGENT
27.1.1 Each other Finance Party appoints the Agent to act as its agent and
the Security Trustee to act as its security trustee under and in
connection with the Finance Documents, including (but without
limitation), in the case of the Agent, to enter into the Security
Trust and Intercreditor Deed as a "DEBT REPRESENTATIVE" (as defined
in the Security Trust and Intercreditor Deed).
27.1.2 Each other Finance Party authorises the Agent and the Security
Trustee to exercise the rights, powers, authorities and discretions
specifically given to the Agent and the Security Trustee under or
in connection with the Finance Documents together with any other
incidental rights, powers, authorities and discretions.
27.2 DUTIES OF THE AGENT
27.2.1 The Agent and the Security Trustee shall promptly forward to a
Party the original or a copy of any document which is delivered to
the Agent or the Security Trustee for that Party by any other
Party.
27.2.2 Except where a Finance Document specifically provides otherwise,
neither the Agent nor the Security Trustee is obliged to review or
check the adequacy, accuracy or completeness of any document it
forwards to another Party.
27.2.3 If the Agent or the Security Trustee receives notice from a Party
referring to this Agreement, describing a Default and stating that
the circumstance described is a Default, it shall promptly notify
the Finance Parties.
27.2.4 If the Agent or the Security Trustee is aware of the non-payment of
any principal, interest, commitment fee or other fee payable to a
Finance Party under this Agreement it shall promptly notify the
other Finance Parties.
27.2.5 The Agent's and Security Trustee's duties under the Finance
Documents are solely mechanical and administrative in nature.
27.3 NO FIDUCIARY DUTIES
27.3.1 Except as expressly set out herein nothing in this Agreement
constitutes the Agent or the Security Trustee as a trustee or
fiduciary of any other person.
- 46 -
27.3.2 Neither the Agent nor the Security Trustee shall be bound to
account to any Bank for any sum or the profit element of any sum
received by it for its own account.
27.4 BUSINESS WITH THE GROUP
The Agent and the Security Trustee may accept deposits from, lend money to
and generally engage in any kind of banking or other business with any
member of the Group.
27.5 RIGHTS AND DISCRETIONS OF THE AGENT AND SECURITY TRUSTEE
27.5.1 The Agent and the Security Trustee may rely on:
(a) any representation, notice or document believed by it to be
genuine, correct and appropriately authorised; and
(b) any statement made by a director, authorised signatory or
employee of any person regarding any matters which may
reasonably be assumed to be within his knowledge or within his
power to verify.
27.5.2 Each of the Agent and the Security Trustee may assume (unless it
has received notice to the contrary in its capacity as agent or
security trustee for the Banks) that:
(a) no Default has occurred (unless it has actual knowledge of a
Default arising under Clause 24.1 (Non-payment));
(b) any right, power, authority or discretion vested in any Party
or the Majority Banks has not been exercised; and
(c) any notice or request made by the Company or the Applicant
(other than a Utilisation Request) is made on behalf of and
with the consent and knowledge of all the Obligors.
27.5.3 The Agent and the Security Trustee may engage, pay for and rely on
the advice or services of any lawyers, accountants, surveyors or
other experts.
27.5.4 Each of the Agent and the Security Trustee may act in relation to
the Finance Documents through its personnel and agents.
27.5.5 Each of the Agent and the Security Trustee may disclose to any
other Party any information it reasonably believes it has received
as agent or security trustee under this Agreement.
27.5.6 Notwithstanding any other provision of any Finance Document to the
contrary, neither the Agent nor the Security Trustee is obliged to
do or omit to do anything if it would or might in its reasonable
opinion constitute a breach of any law or regulation or a breach of
a fiduciary duty or duty of confidentiality.
27.6 MAJORITY BANKS' INSTRUCTIONS
27.6.1 Unless a contrary indication appears in a Finance Document, each of
the Agent and the Security Trustee shall (a) exercise any right,
power, authority or
-47-
discretion vested in it as Agent in accordance with any
instructions given to it by the Majority Banks (or, if so
instructed by the Majority Banks, refrain from exercising any
right, power, authority or discretion vested in it as agent or
security trustee) and (b) not be liable for any act (or omission)
if it acts (or refrains from taking any action) in accordance with
an instruction of the Majority Banks.
27.6.2 Unless a contrary indication appears in a Finance Document, any
instructions given by the Majority Banks will be binding on all the
Finance Parties.
27.6.3 Each of the Agent and the Security Trustee may refrain from acting
in accordance with the instructions of the Majority Banks (or, if
appropriate, the Banks) until it has received such security as it
may require for any cost, loss or liability (together with any
associated VAT) which it may incur in complying with the
instructions.
27.6.4 In the absence of instructions from the Majority Banks, (or, if
appropriate, the Banks) each of the Agent and the Security Trustee
may act (or refrain from taking action) as it considers to be in
the best interest of the Banks.
27.6.5 Neither the Agent nor the Security Trustee is authorised to act on
behalf of a Bank (without first obtaining that Bank's consent) in
any legal or arbitration proceedings relating to any Finance
Document.
27.7 RESPONSIBILITY FOR DOCUMENTATION
Neither the Agent nor the Security Trustee:
27.7.1 is responsible for the adequacy, accuracy and/or completeness of
any information (whether oral or written) supplied by the Agent,
the Security Trustee, an Obligor or any other person given in or in
connection with any Finance Document; or
27.7.2 is responsible for the legality, validity, effectiveness, adequacy
or enforceability of any Finance Document or any other agreement,
arrangement or document entered into, made or executed in
anticipation of or in connection with any Finance Document.
27.8 EXCLUSION OF LIABILITY
27.8.1 Without limiting sub-clause 27.8.2 of this Clause 27.8, neither the
Agent nor the Security Trustee will be liable for any action taken
by it under or in connection with any Finance Document, unless
directly caused by its gross negligence or wilful misconduct.
27.8.2 No Party (other than the Agent or the Security Trustee) may take
any proceedings against any officer, employee or agent of the Agent
or the Security Trustee in respect of any claim it might have
against the Agent or the Security Trustee or in respect of any act
or omission of any kind by that officer, employee or agent in
relation to any Finance Document and any officer, employee or agent
of the Agent or the Security Trustee may rely on this Clause
-48-
subject to Clause 1.3 (Third Party Rights) and the provisions of
the Third Parties Act.
27.8.3 Neither the Agent nor the Security Trustee will be liable for any
delay (or any related consequences) in crediting an account with an
amount required under the Finance Documents to be paid by the Agent
or the Security Trustee if the Agent or the Security Trustee has
taken all necessary steps as soon as reasonably practicable to
comply with the regulations or operating procedures of any
recognised clearing or settlement system used by the Agent or the
Security Trustee for that purpose.
27.9 BANKS' INDEMNITY TO THE AGENT
Each Bank shall (in proportion to its share of the Total Commitments or,
if the Total Commitments are then zero, to its share of the Total
Commitments immediately prior to their reduction to zero) indemnify the
Agent and the Security Trustee, within three Business Days of demand,
against any cost, loss or liability incurred by the Agent or Security
Trustee (otherwise than by reason of the Agent's or Security Trustee's
gross negligence or wilful misconduct) in acting as Agent or Security
Trustee under the Finance Documents (unless the Agent or Security Trustee
has been reimbursed by an Obligor pursuant to a Finance Document).
27.10 RESIGNATION OF THE AGENT AND SECURITY TRUSTEE
27.10.1 Each of the Agent and the Security Trustee may resign and appoint
one of its Affiliates acting through an office in the United
Kingdom as successor by giving notice to the other Finance Parties
and the Company.
27.10.2 Alternatively the Agent or Security Trustee may resign by giving
notice to the other Finance Parties and the Company, in which case
the Majority Banks (after consultation with the Company) may
appoint a successor Agent or Security Trustee.
27.10.3 If the Majority Banks have not appointed a successor Agent or
Security Trustee in accordance with sub-clause 27.10.2 of this
Clause 27.10 within 30 days after notice of resignation was given,
the Agent or Security Trustee (after consultation with the
Company) may appoint a successor Agent or Security Trustee (acting
through an office in the United Kingdom).
27.10.4 The retiring Agent or Security Trustee shall, at its own cost,
make available to the successor Agent or Security Trustee such
documents and records and provide such assistance as the successor
Agent may reasonably request for the purposes of performing its
functions as Agent or Security Trustee under the Finance
Documents.
27.10.5 The Agent's or Security Trustee's resignation notice shall only
take effect upon the appointment of a successor.
27.10.6 Upon the appointment of a successor, the retiring Agent or
Security Trustee shall be discharged from any further obligation
in respect of the Finance Documents but shall remain entitled to
the benefit of this Clause 27. Its
-49-
successor and each of the other Parties shall have the same rights
and obligations amongst themselves as they would have had if such
successor had been an original Party.
27.10.7 After consultation with the Company, the Majority Banks may, by
notice to the Agent or Security Trustee, require it to resign in
accordance with sub-clause 27.10.2 of this Clause 27.10. In this
event, the Agent or Security Trustee shall resign in accordance
with sub-clause 27.10.2 of this Clause 27.10.
27.11 CONFIDENTIALITY
27.11.1 In acting as agent or security trustee for the Finance Parties,
the Agent or Security Trustee shall be regarded as acting through
its agency or trustee division which shall be treated as a
separate entity from any other of its divisions or departments.
27.11.2 If information is received by another division or department of
the Agent or Security Trustee, it may be treated as confidential
to that division or department and the Agent or Security Trustee
shall not be deemed to have notice of it.
27.12 RELATIONSHIP WITH THE BANKS
27.12.1 Each of the Agent and Security Trustee may treat each Bank as a
Bank, entitled to payments under this Agreement and acting through
its Facility Office unless it has received not less than five
Business Days prior notice from that Bank to the contrary in
accordance with the terms of this Agreement.
27.12.2 Each Bank shall supply the Agent with any information required by
the Agent in order to calculate the Mandatory Cost in accordance
with Schedule 4 (Mandatory Cost Formulae).
27.13 CREDIT APPRAISAL BY THE BANKS
Without affecting the responsibility of any Obligor for information
supplied by it or on its behalf in connection with any Finance Document,
each Bank confirms to the Agent and the Security Trustee that it has been,
and will continue to be, solely responsible for making its own independent
appraisal and investigation of all risks arising under or in connection
with any Finance Document including but not limited to:
27.13.1 the financial condition, status and nature of each member of the
Group;
27.13.2 the legality, validity, effectiveness, adequacy or enforceability
of any Finance Document and any other agreement, arrangement or
document entered into, made or executed in anticipation of, under
or in connection with any Finance Document;
27.13.3 whether that Bank has recourse, and the nature and extent of that
recourse, against any Party or any of its respective assets under
or in connection with any Finance Document, the transactions
contemplated by the Finance Documents or any other agreement,
arrangement or document entered into, made or executed in
anticipation of, under or in connection with any Finance Document;
and
-50-
27.13.4 the adequacy, accuracy and/or completeness of any information
provided by the Agent or the Security Trustee, any Party or by any
other person under or in connection with any Finance Document, the
transactions contemplated by the Finance Documents or any other
agreement, arrangement or document entered into, made or executed
in anticipation of, under or in connection with any Finance
Document.
27.14 REFERENCE BANKS
If a Reference Bank (or, if a Reference Bank is not a Bank, the Bank of
which it is an Affiliate) ceases to be a Bank, the Agent shall (in
consultation with the Company) appoint another Bank or an Affiliate of a
Bank to replace that Reference Bank.
27.15 AGENT'S AND SECURITY TRUSTEE'S MANAGEMENT TIME
Any amount payable to the Agent or Security Trustee under Clause 16.3
(Indemnity to the Agent and Security Trustee), Clause 18 (Costs and
expenses) and Clause 27.9 (Banks' indemnity to the Agent) shall include
the cost of utilising the Agent's and Security Trustee's management time
or other resources and will be calculated on the basis of such reasonable
daily or hourly rates as the Agent or Security Trustee may notify to the
Company and the Banks, and is in addition to any fee paid or payable to
the Agent and Security Trustee under Clause 13 (Fees).
27.16 DEDUCTION FROM AMOUNTS PAYABLE BY THE AGENT OR SECURITY TRUSTEE If any
Party owes an amount to the Agent or Security Trustee under the Finance
Documents the Agent or Security Trustee may, after giving notice to that
Party, deduct an amount not exceeding that amount from any payment to that
Party which the Agent or Security Trustee would otherwise be obliged to
make under the Finance Documents and apply the amount deducted in or
towards satisfaction of the amount owed. For the purposes of the Finance
Documents that Party shall be regarded as having received any amount so
deducted.
27.17 TRUST
The Security Trustee declares that it shall hold the Transaction Security
on trust for the Finance Parties on the terms contained in this Agreement.
Each of the parties to this Agreement agrees that the Security Trustee
shall have only those duties, obligations and responsibilities expressly
specified in this Agreement or the Security Agreement (and no others shall
be implied).
27.18 NO INDEPENDENT POWER
The Finance Parties shall not have any independent power to enforce, or
have recourse to, any of the Transaction Security or to exercise any
rights or powers arising under the Security Agreement except through the
Security Trustee.
27.19 SECURITY TRUSTEE'S ACTIONS
Subject to the provisions of this Clause 27:
27.19.1 the Security Trustee may, in the absence of any instructions to
the contrary, take such action in the exercise of any of its
powers and duties under the Finance Documents which in its
absolute discretion it considers to be for the protection and
benefit of all the Finance Parties; and
-51-
27.19.2 at any time after receipt by the Security Trustee of notice from
the Agent directing the Security Trustee to exercise all or any of
its rights, remedies, powers or discretions under any of the
Finance Documents, the Security Trustee may, and shall if so
directed by the Agent, take any action as in its sole discretion
it thinks fit to enforce the Transaction Security.
27.20 NO RESPONSIBILITY TO PERFECT TRANSACTION SECURITY
The Security Trustee shall not be liable for any failure to:
27.20.1 require the deposit with it of any deed or document certifying,
representing or constituting the title of any Obligor to any of
the property subject to the Transaction Security;
27.20.2 obtain any licence, consent or other authority for the execution,
delivery, legality, validity, enforceability or admissibility in
evidence of any of the Finance Documents or the Transaction
Security;
27.20.3 register, file or record or otherwise protect any of the
Transaction Security (or the priority of any of the Transaction
Security) under any applicable laws in any jurisdiction or to give
notice to any person of the execution of any of the Finance
Documents or of the Transaction Security;
27.20.4 take, or to require any of the Obligors to take, any steps to
perfect its title to any of the property subject to the
Transaction Security or to render the Transaction Security
effective or to secure the creation of any ancillary Security
under the laws of any jurisdiction; or
27.20.5 require any further assurances in relation to any of the
Transaction Security Documents.
27.21 CUSTODIANS AND NOMINEES
The Security Trustee may appoint and pay any person to act as a custodian
or nominee on any terms in relation to any assets of the trust as the
Security Trustee may determine, including for the purpose of depositing
with a custodian this Agreement or any document relating to the trust
created under this Agreement and the Security Trustee shall not be
responsible for any loss, liability, expense, demand, cost, claim or
proceedings incurred by reason of the misconduct, omission or default on
the part of any person appointed by it under this Agreement or be bound to
supervise the proceedings or acts of any person PROVIDED THAT the Security
Trustee has acted with due care in appointing such custodian or nominee.
27.22 REFRAIN FROM ILLEGALITY
The Security Trustee may refrain from doing anything which in its opinion
will or may be contrary to any relevant law, directive or regulation of
any jurisdiction which would or might otherwise render it liable to any
person, and the Security Trustee may do anything which is, in its opinion,
necessary to comply with any law, directive or regulation.
-52-
27.23 WINDING UP OF TRUST
If the Security Trustee, with the approval of the Majority Banks,
determines that (a) all of the obligations secured by the Security
Agreement have been fully and finally discharged and (b) none of the
Finance Parties is under any commitment, obligation or liability (actual
or contingent) to provide financial accommodation to any Obligor pursuant
to the Finance Documents, the trusts set out in this Agreement shall be
wound up and the Security Trustee shall release, without recourse or
warranty, all of the Transaction Security and the rights of the Security
Trustee under the Security Agreement.
27.24 PERPETUITY PERIOD
The perpetuity period under the rule against perpetuities, if applicable
to this Agreement, shall be the period of eighty years from the date of
this Agreement.
27.25 POWERS SUPPLEMENTAL
The rights, powers and discretions conferred upon the Security Trustee by
this Agreement shall be supplemental to the Trustee Acts 1925 and 2000 and
in addition to any which may be vested in the Security Trustee by general
law or otherwise.
27.26 DISAPPLICATION
Section 1 of the Trustee Act 2000 shall not apply to the duties of the
Security Trustee in relation to the trusts constituted by this Agreement.
Where there are any inconsistencies between the Trustee Acts 1925 and 2000
and the provisions of this Agreement, the provisions of this Agreement
shall, to the extent allowed by law, prevail and, in the case of any
inconsistency with the Trustee Xxx 0000, the provisions of this Agreement
shall constitute a restriction or exclusion for the purposes of that Act.
27.27 DELEGATION
27.27.1 The Security Trustee may, at any time, delegate by power of
attorney or otherwise to any person for any period, all or any of
the rights, powers and discretions vested in it by any of the
Finance Documents.
27.27.2 The delegation may be made upon any terms and conditions
(including the power to sub-delegate) and subject to any
restrictions as the Security Trustee may think fit in the
interests of the Finance Parties and it shall not be bound to
supervise, or be in any way responsible for any loss incurred by
reason of any misconduct or default on the part of any delegate or
sub-delegate.
27.28 ORDER OF APPLICATION
Subject to the terms of the Security Trust and Intercreditor Deed, all
monies from time to time received or recovered by the Security Trustee in
connection with the realisation or enforcement of all or any part of the
Transaction Security or recovered from the STID Security Trustee in
connection with the realisation or enforcement of the STID Transaction
Security shall be held by the Security Trustee on trust to apply them at
such times as the Security Trustee sees fit, to the extent permitted by
applicable law, in the following order of priority:
27.28.1 in discharging any sums owing to the Security Trustee (in its
capacity as Security Trustee);
-53-
27.28.2 in payment to the Agent, on behalf of the Secured Parties, for
application towards the discharge of all sums due and payable by
any Obligor under any of the Finance Documents in accordance with
Clause 30.5 (Partial payments).
27.28.3 if none of the Obligors is under any further actual or contingent
liability under any Finance Document, in payment to any person to
whom the Security Trustee is obliged to pay in priority to any
Obligor; and
27.28.4 the balance, if any, in payment to the relevant Obligor.
27.29 INVESTMENT OF PROCEEDS
Prior to the application of the proceeds of the Transaction Security in
accordance with Clause 27.28 (Order of Application) the Security Trustee
may, at its discretion, hold all or part of those proceeds in an interest
bearing suspense or impersonal account(s) in the name of the Security
Trustee or Agent with such financial institution (including itself) for so
long as the Security Trustee thinks fit (the interest being credited to
the relevant account) pending the application from time to time of those
monies at the Security Trustee's discretion in accordance with the
provisions of this Clause.
27.30 CURRENCY CONVERSION
27.30.1 For the purpose of or pending the discharge of any of the Secured
Obligations the Security Trustee may convert any monies received
or recovered by the Security Trustee from one currency to another,
at the spot rate at which the Security Trustee is able to purchase
the currency in which the Secured Obligations are due with the
amount received.
27.30.2 The obligations of any Obligor to pay in the due currency shall
only be satisfied to the extent of the amount of the due currency
purchased after deducting the costs of conversion.
27.31 PERMITTED DEDUCTIONS
The Security Trustee shall be entitled (a) to set aside by way of reserve
amounts required to meet and (b) to make and pay, any deductions and
withholdings (on account of Taxes or otherwise) which it is or may be
required by any applicable law to make from any distribution or payment
made by it under this Agreement, and to pay all Taxes which may be
assessed against it in respect of any of the property charged under the
Security Agreement, or as a consequence of performing its duties, or by
virtue of its capacity as Security Trustee under any of the Finance
Documents or otherwise (except in connection with its remuneration for
performing its duties under any Finance Document).
27.32 DISCHARGE OF SECURED OBLIGATIONS
27.32.1 Any payment to be made in respect of the Secured Obligations by
the Security Trustee may be made to the Agent on behalf of the
Banks and that payment shall be a good discharge to the extent of
that payment, to the Security Trustee.
27.32.2 The Security Trustee is under no obligation to make payment to the
Agent in the same currency as that in which any Unpaid Sum is
denominated.
-54-
28. CONDUCT OF BUSINESS BY THE FINANCE PARTIES
No provision of this Agreement will:
28.1.1 interfere with the right of any Finance Party to arrange its
affairs (tax or otherwise) in whatever manner it thinks fit;
28.1.2 oblige any Finance Party to investigate or claim any credit,
relief, remission or repayment available to it or the extent, order
and manner of any claim; or
28.1.3 oblige any Finance Party to disclose any information relating to
its affairs (tax or otherwise) or any computations in respect of
Tax.
29. SHARING AMONG THE FINANCE PARTIES
29.1 PAYMENTS TO FINANCE PARTIES
If a Finance Party (a "RECOVERING FINANCE PARTY") receives or recovers any
amount from an Obligor other than in accordance with Clause 30 (Payment
mechanics) and applies that amount to a payment due under the Finance
Documents then:
29.1.1 the Recovering Finance Party shall, within three Business Days,
notify details of the receipt or recovery, to the Agent;
29.1.2 the Agent shall determine whether the receipt or recovery is in
excess of the amount the Recovering Finance Party would have been
paid had the receipt or recovery been received or made by the Agent
and distributed in accordance with Clause 30 (Payment mechanics),
without taking account of any Tax which would be imposed on the
Agent in relation to the receipt, recovery or distribution; and
29.1.3 the Recovering Finance Party shall, within three Business Days of
demand by the Agent, pay to the Agent an amount (the "SHARING
PAYMENT") equal to such receipt or recovery less any amount which
the Agent determines may be retained by the Recovering Finance
Party as its share of any payment to be made, in accordance with
Clause 30.5 (Partial payments).
29.2 REDISTRIBUTION OF PAYMENTS
The Agent shall treat the Sharing Payment as if it had been paid by the
relevant Obligor and distribute it between the Finance Parties (other than
the Recovering Finance Party) in accordance with Clause 30.5 (Partial
payments).
29.3 RECOVERING FINANCE PARTY'S RIGHTS
29.3.1 On a distribution by the Agent under Clause 29.2 (Redistribution of
payments), the Recovering Finance Party will be subrogated to the
rights of the Finance Parties which have shared in the
redistribution.
29.3.2 If and to the extent that the Recovering Finance Party is not able
to rely on its rights under sub-clause 29.3.1 of this Clause 29.3,
the relevant Obligor shall be liable to the Recovering Finance
Party for a debt equal to the Sharing Payment which is immediately
due and payable.
-55-
29.4 REVERSAL OF REDISTRIBUTION
If any part of the Sharing Payment received or recovered by a Recovering
Finance Party becomes repayable and is repaid by that Recovering Finance
Party, then:
29.4.1 each Finance Party which has received a share of the relevant
Sharing Payment pursuant to Clause 29.2 (Redistribution of
payments) shall, upon request of the Agent, pay to the Agent for
account of that Recovering Finance Party an amount equal to the
appropriate part of its share of the Sharing Payment (together with
an amount as is necessary to reimburse that Recovering Finance
Party for its proportion of any interest on the Sharing Payment
which that Recovering Finance Party is required to pay); and
29.4.2 that Recovering Finance Party's rights of subrogation in respect of
any reimbursement shall be cancelled and the relevant Obligor will
be liable to the reimbursing Bank for the amount so reimbursed.
29.5 EXCEPTIONS
29.5.1 This Clause 29 shall not apply to the extent that the Recovering
Finance Party would not, after making any payment pursuant to this
Clause, have a valid and enforceable claim against the relevant
Obligor.
29.5.2 A Recovering Finance Party is not obliged to share with any other
Bank any amount which the Recovering Finance Party has received or
recovered as a result of taking legal or arbitration proceedings,
if:
(a) it notified that other Finance Party of the legal or
arbitration proceedings; and
(b) that other Finance Party had an opportunity to participate in
those legal or arbitration proceedings but did not do so as
soon as reasonably practicable having received notice and did
not take separate legal or arbitration proceedings.
30. PAYMENT MECHANICS
30.1 PAYMENTS TO THE AGENT OR SECURITY TRUSTEE
30.1.1 On each date on which an Obligor or a Bank is required to make a
payment under a Finance Document, that Obligor or Bank shall make
the same available to the Agent or Security Trustee (unless a
contrary indication appears in a Finance Document) for value on the
due date at the time and in such funds specified by the Agent or
Security Trustee as being customary at the time for settlement of
transactions in the relevant currency in the place of payment.
30.1.2 Payment shall be made to such account in the principal financial
centre of the country of that currency (or, in relation to euro, in
a principal financial centre in a Participating Member State or
London) with such bank as the Agent or Security Trustee specifies.
-56-
30.2 DISTRIBUTIONS BY THE AGENT
Each payment received by the Agent under the Finance Documents for another
Party shall, subject to Clause 30.3 (Distributions to an Obligor) and
Clause 30.4 (Clawback), be made available by the Agent as soon as
practicable after receipt to the Party entitled to receive payment in
accordance with this Agreement (in the case of a Bank, for the account of
its Facility Office), to such account as that Party may notify to the
Agent by not less than five Business Days' notice with a bank in the
principal financial centre of the country of that currency (or, in
relation to euro, in the principal financial centre of a Participating
Member State or London).
30.3 DISTRIBUTIONS TO AN OBLIGOR
The Agent or Security Trustee may (with the consent of the Obligor or in
accordance with Clause 31 (Set-off)) apply any amount received by it for
that Obligor in or towards payment (on the date and in the currency and
funds of receipt) of any amount due from that Obligor under the Finance
Documents or in or towards purchase of any amount of any currency to be so
applied.
30.4 CLAWBACK
30.4.1 Where a sum is to be paid to the Agent or Security Trustee under
the Finance Documents for another Party, the Agent or Security
Trustee is not obliged to pay that sum to that other Party (or to
enter into or perform any related exchange contract) until it has
been able to establish to its satisfaction that it has actually
received that sum.
30.4.2 If the Agent or Security Trustee pays an amount to another Party
and it proves to be the case that the Agent or Security Trustee had
not actually received that amount, then the Party to whom that
amount (or the proceeds of any related exchange contract) was paid
by the Agent or Security Trustee shall on demand refund the same to
the Agent or Security Trustee together with interest on that amount
from the date of payment to the date of receipt by the Agent or
Security Trustee, calculated by the Agent or Security Trustee to
reflect its cost of funds.
30.5 PARTIAL PAYMENTS
30.5.1 If the Agent receives a payment that is insufficient to discharge
all the amounts then due and payable by an Obligor under the
Finance Documents, the Agent shall apply that payment towards the
obligations of that Obligor under the Finance Documents in the
following order:
(a) FIRST, in or towards payment pro rata of any unpaid fees,
costs and expenses of the Agent and the Issuing Banks under
the Finance Documents;
(b) SECONDLY, in or towards payment pro rata of any accrued
interest, fee or commission due but unpaid under this
Agreement;
(c) THIRDLY, in or towards payment pro rata of any principal or
indemnity payment in respect of a Bond due but unpaid under
this Agreement; and
(d) FOURTHLY, in or towards payment pro rata of any other sum due
but unpaid under the Finance Documents.
-57-
30.5.2 The Agent shall, if so directed by the Majority Banks, vary the
order set out in sub-clause 30.5.1(b) to 30.5.1(d).
30.5.3 Sub-clause 30.5.1 and 30.5.2 of this Clause 30.5 will override any
appropriation made by an Obligor.
30.6 NO SET-OFF BY OBLIGORS
All payments to be made by an Obligor under the Finance Documents shall be
calculated and be made without (and free and clear of any deduction for)
set-off or counterclaim.
30.7 BUSINESS DAYS
30.7.1 Any payment which is due to be made on a day that is not a Business
Day shall be made on the next Business Day in the same calendar
month (if there is one) or the preceding Business Day (if there is
not).
30.7.2 During any extension of the due date for payment of any principal
or Unpaid Sum under this Agreement interest is payable on the
principal or Unpaid Sum at the rate payable on the original due
date.
30.8 CURRENCY OF ACCOUNT
30.8.1 Subject to sub-clauses 30.8.2 to 30.8.5 of this Clause 30.8, the
Base Currency is the currency of account and payment for any sum
due from an Obligor under any Finance Document.
30.8.2 Unless expressly indicated to the contrary, a repayment of a Bond
or Unpaid Sum or a part of a Bond or Unpaid Sum shall be made in
the currency in which that Bond or Unpaid Sum is denominated on its
due date.
30.8.3 Each payment of interest shall be made in the currency in which the
sum in respect of which the interest is payable was denominated
when that interest accrued.
30.8.4 Each payment in respect of costs, expenses or Taxes shall be made
in the currency in which the costs, expenses or Taxes are incurred.
30.8.5 Any amount expressed to be payable in a currency other than the
Base Currency shall be paid in that other currency.
30.9 CHANGE OF CURRENCY
30.9.1 Unless otherwise prohibited by law, if more than one currency or
currency unit are at the same time recognised by the central bank
of any country as the lawful currency of that country, then:
(a) any reference in the Finance Documents to, and any obligations
arising under the Finance Documents in, the currency of that
country shall be translated into, or paid in, the currency or
currency unit of that country designated by the Agent (after
consultation with the Company); and
(b) any translation from one currency or currency unit to another
shall be at the official rate of exchange recognised by the
central bank for the
-58-
conversion of that currency or currency unit into the other,
rounded up or down by the Agent (acting reasonably).
30.9.2 If a change in any currency of a country occurs, this Agreement
will, to the extent the Agent (acting reasonably and after
consultation with the Company) specifies to be necessary, be
amended to comply with any generally accepted conventions and
market practice in the Relevant Interbank Market and otherwise to
reflect the change in currency.
31. SET-OFF
A Finance Party may set off any matured obligation due from an Obligor
under the Finance Documents (to the extent beneficially owned by that
Finance Party) against any matured obligation owed by that Finance Party
to that Obligor, regardless of the place of payment, booking branch or
currency of either obligation. If the obligations are in different
currencies, the Finance Party may convert either obligation at a market
rate of exchange in its usual course of business for the purpose of the
set-off.
32. NOTICES
32.1 COMMUNICATIONS IN WRITING
Any communication to be made under or in connection with the Finance
Documents shall be made in writing and, unless otherwise stated, may be
made by fax or letter.
32.2 ADDRESSES
The address and fax number (and the department or officer, if any, for
whose attention the communication is to be made) of each Party for any
communication or document to be made or delivered under or in connection
with the Finance Documents is:
32.2.1 in the case of the Company or the Applicant, that identified with
its name below;
32.2.2 in the case of each Bank or any other Original Obligor, that
notified in writing to the Agent on or prior to the date on which
it becomes a Party; and
32.2.3 in the case of the Agent and the Security Trustee, that identified
with its name below,
or any substitute address or fax number or department or officer as the
Party may notify to the Agent (or the Agent may notify to the other
Parties, if a change is made by the Agent) by not less than five Business
Days' notice.
32.3 DELIVERY
32.3.1 Any communication or document made or delivered by one person to
another under or in connection with the Finance Documents will only
be effective:
(a) if by way of fax, when received in legible form; or
(b) if by way of letter, when it has been left at the relevant
address or five Business Days after being deposited in the
post postage prepaid in an envelope addressed to it at that
address,
-59-
and, if a particular department or officer is specified as part of
its address details provided under Clause 32.2 (Addresses), if
addressed to that department or officer.
32.3.2 Any communication or document to be made or delivered to the Agent
will be effective only when actually received by the Agent or
Security Trustee and then only if it is expressly marked for the
attention of the department or officer identified with the Agent's
or Security Trustee's signature below (or any substitute department
or officer as the Agent or Security Trustee shall specify for this
purpose).
32.3.3 All notices from or to an Obligor shall be sent through the Agent
or Security Trustee.
32.3.4 Any communication or document made or delivered to the Company in
accordance with this Clause will be deemed to have been made or
delivered to each of the Obligors.
32.4 NOTIFICATION OF ADDRESS OR FAX NUMBER
Promptly upon receipt of notification of an address or fax number or
change of address or fax number telex number pursuant to Clause 32.2
(Addresses) or changing its own address or fax number, the Agent shall
notify the other Parties.
32.5 ELECTRONIC COMMUNICATION
32.5.1 Any communication to be made between the Agent and a Bank under or
in connection with the Finance Documents may be made by electronic
mail or other electronic means, if the Agent and the relevant Bank:
(a) agree that, unless and until notified to the contrary, this is
to be an accepted form of communication;
(b) notify each other in writing of their electronic mail address
and/or any other information required to enable the sending
and receipt of information by that means; and
(c) notify each other of any change to their address or any other
such information supplied by them.
32.5.2 Any electronic communication made between the Agent and a Bank will
be effective only when actually received in readable form and in
the case of any electronic communication made by a Bank to the
Agent only if it is addressed in such a manner as the Agent shall
specify for this purpose.
32.6 ENGLISH LANGUAGE
32.6.1 Any notice given under or in connection with any Finance Document
must be in English.
32.6.2 All other documents provided under or in connection with any
Finance Document must be:
(a) in English; or
-60-
(b) if not in English, and if so required by the Agent,
accompanied by a certified English translation and, in this
case, the English translation will prevail unless the document
is a constitutional, statutory or other official document.
33. CALCULATIONS AND CERTIFICATES
33.1 ACCOUNTS
In any litigation or arbitration proceedings arising out of or in
connection with a Finance Document, the entries made in the accounts
maintained by a Finance Party are prima facie evidence of the matters to
which they relate.
33.2 CERTIFICATES AND DETERMINATIONS
Any certification or determination by a Finance Party of a rate or amount
under any Finance Document is, in the absence of manifest error,
conclusive evidence of the matters to which it relates.
33.3 DAY COUNT CONVENTION
Any interest, commission or fee accruing under a Finance Document will
accrue from day to day and is calculated on the basis of the actual number
of days elapsed and a year of 365 days or, in any case where the practice
in the Relevant Interbank Market differs, in accordance with that market
practice.
34. PARTIAL INVALIDITY
If, at any time, any provision of the Finance Documents is or becomes
illegal, invalid or unenforceable in any respect under any law of any
jurisdiction, neither the legality, validity or enforceability of the
remaining provisions nor the legality, validity or enforceability of such
provision under the law of any other jurisdiction will in any way be
affected or impaired.
35. REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of any
Finance Party, any right or remedy under the Finance Documents shall
operate as a waiver, nor shall any single or partial exercise of any right
or remedy prevent any further or other exercise or the exercise of any
other right or remedy. The rights and remedies provided in this Agreement
are cumulative and not exclusive of any rights or remedies provided by
law.
36. AMENDMENTS AND WAIVERS
36.1 REQUIRED CONSENTS
36.1.1 Subject to Clause 36.2 (Exceptions) any term of the Finance
Documents may be amended or waived only with the consent of the
Majority Banks and the Company and any such amendment or waiver
will be binding on all Parties.
36.1.2 The Agent may effect, on behalf of any Finance Party, any amendment
or waiver permitted by this Clause.
-61-
36.2 EXCEPTIONS
36.2.1 An amendment or waiver that has the effect of changing or which
relates to:
(a) the definition of "Majority Banks" in Clause 1.1
(Definitions);
(b) an extension to the date of payment of any amount under the
Finance Documents;
(c) a reduction in the amount of any payment of principal,
interest, fees or commission payable;
(d) an increase in or an extension of any Commitment;
(e) a change to the Obligors other than in accordance with Clause
26 (Changes to the Obligors);
(f) any provision which expressly requires the consent of all the
Banks;
(g) Clause 2.2 (Finance Parties' rights and obligations), Clause
22 (Security undertakings), Clause 25 (Changes to the Banks)
or this Clause 36,
shall not be made without the prior consent of all the Banks.
36.2.2 An amendment or waiver which relates to the rights or obligations
of the Agent, the Security Trustee or an Issuing Bank may not be
effected without the consent of the Agent, the Security Trustee or
that Issuing Bank.
37. COUNTERPARTS
Each Finance Document may be executed in any number of counterparts, and
this has the same effect as if the signatures on the counterparts were on
a single copy of the Finance Document.
38. GOVERNING LAW
This Agreement is governed by English law.
39. ENFORCEMENT
39.1 JURISDICTION
39.1.1 The courts of England have exclusive jurisdiction to settle any
dispute arising out of or in connection with this Agreement
(including a dispute regarding the existence, validity or
termination of this Agreement) (a "DISPUTE").
39.1.2 The Parties agree that the courts of England are the most
appropriate and convenient courts to settle Disputes and
accordingly no Party will argue to the contrary.
39.1.3 This Clause 39.1 is for the benefit of the Finance Parties only. As
a result, no Finance Party shall be prevented from taking
proceedings relating to a Dispute in any other courts with
jurisdiction. To the extent allowed by law, the Finance Parties may
take concurrent proceedings in any number of jurisdictions.
-62-
39.2 SERVICE OF PROCESS
Without prejudice to any other mode of service allowed under any relevant
law, each Obligor (other than an Obligor incorporated in England and
Wales):
39.2.1 irrevocably appoints the Company as its agent for service of
process in relation to any proceedings before the English courts in
connection with any Finance Document; and
39.2.2 agrees that failure by a process agent to notify the relevant
Obligor of the process will not invalidate the proceedings
concerned.
This Agreement has been entered into on the date stated at the beginning of this
Agreement.
-63-
SCHEDULE 1
THE ORIGINAL PARTIES
PART A
THE ORIGINAL ISSUING BANKS
HSBC Bank plc
XX Xxxxxx Xxxxx Bank
-64-
PART B
THE ORIGINAL BANKS
Name of Original Bank Commitment
[L]
HSBC Bank plc 25,000,000
XX Xxxxxx Chase Bank 25,000,000
-65-
PART C
THE ORIGINAL INDEMNIFYING COMPANIES
NAME OF ORIGINAL INDEMNIFYING COMPANIES COMPANY NO.
Marconi Corporation plc (in respect of the Scheme Expenses Bond only) 00067307
Albany Partnership Limited 03049168
GPT Special Project Management Limited 02984211
Marconi Communications China Limited 02956293
Marconi Communications GmbH HRB1563
Marconi Communications International Limited 00464439
Marconi Communications Ltd 00703317
Marconi Communications SpA 01168770996
Marconi International SpA 01201400999
Metapath Software International Limited 00000000
Marconi Mobile Access SpA 02008610301
Marconi Sud SpA 04159131004
-66-
SCHEDULE 2
CONDITIONS PRECEDENT
PART A
CONDITIONS PRECEDENT TO INITIAL UTILISATION
1. ORIGINAL OBLIGORS
(a) A copy of the constitutional documents of each Original Obligor.
(b) A copy of a resolution of the board of directors of each Original Obligor:
(i) approving the terms of, and the transactions contemplated by, the
Finance Documents to which it is a party and resolving that it
execute the Finance Documents to which it is a party;
(ii) authorising a specified person or persons to execute the Finance
Documents to which it is a party on its behalf; and
(iii) authorising a specified person or persons, on its behalf, to sign
and/or despatch all documents and notices (including, if relevant,
any Utilisation Request) to be signed and/or despatched by it under
or in connection with the Finance Documents to which it is a party.
(c) A specimen of the signature of each person authorised by the resolution
referred to in paragraph (b) above.
(d) A certificate of the Company (signed by a director) confirming that
guaranteeing the Total Commitments would not cause any borrowing,
guaranteeing or similar limit binding on the Company to be exceeded.
(e) A certificate of an authorised signatory of the relevant Original Obligor
certifying that each copy document relating to it specified in this Part A
of Schedule 2 is correct, complete and in full force and effect as at a
date no earlier than the date of this Agreement.
2. LEGAL OPINIONS
(a) A legal opinion of Xxxxxxxx Chance LLP, legal advisers to the Agent in
England, substantially in the form distributed to the Original Banks prior
to signing this Agreement.
(b) If an Original Obligor is incorporated in a jurisdiction other than
England and Wales, a legal opinion of the legal advisers to the Agent in
the relevant jurisdiction, substantially in the form distributed to the
Original Banks prior to signing this Agreement.
3. OTHER DOCUMENTS AND EVIDENCE
(a) Evidence that any process agent referred to in Clause 39.2 (Service of
process), if not an Original Obligor, has accepted its appointment.
-67-
(b) A copy of any other Authorisation or other document, opinion or assurance
which the Agent considers to be necessary or desirable (if it has notified
the Company accordingly) in connection with the entry into and performance
of the transactions contemplated by any Finance Document or for the
validity and enforceability of any Finance Document.
(c) Evidence that the fees, costs and expenses then due from the Company
pursuant to Clause 13 (Fees) and Clause 18 (Costs and expenses) have been
paid or will be paid by the first Utilisation Date.
(d) Evidence that the Effective Date has occurred.
(e) Executed original copies of all Finance Documents and of all documents to
be delivered thereunder.
(f) A copy, certified by an authorised signatory of the Applicant as being
correct, complete and in full force and effect of each of the Notes
Indentures.
-68-
PART B
CONDITIONS PRECEDENT REQUIRED TO BE
DELIVERED BY AN ADDITIONAL OBLIGOR
1. An Accession Letter, duly executed by the Additional Obligor and the
Company.
2. A copy of the constitutional documents of the Additional Obligor.
3. A copy of a resolution of the board of directors of the Additional
Obligor:
(a) approving the terms of, and the transactions contemplated by, the
Accession Letter and the Finance Documents and resolving that it
execute the Accession Letter;
(b) authorising a specified person or persons to execute the Accession
Letter on its behalf; and
(c) authorising a specified person or persons, on its behalf, to sign
and/or despatch all other documents and notices (including, in
relation to an Additional Borrower, any Utilisation Request) to be
signed and/or despatched by it under or in connection with the
Finance Documents.
4. A specimen of the signature of each person authorised by the
resolution referred to in paragraph 3 above.
5. A certificate of an authorised signatory of the Additional Obligor
certifying that each copy document listed in this Part B of Schedule 2 is
correct, complete and in full force and effect as at a date no earlier
than the date of the Accession Letter.
6. A copy of any other Authorisation or other document, opinion or assurance
which the Agent considers to be necessary or desirable in connection with
the entry into and performance of the transactions contemplated by the
Accession Letter or for the validity and enforceability of any Finance
Document.
7. A legal opinion of Xxxxxxxx Chance LLP, legal advisers to the Agent
in England.
8. If the Additional Obligor is incorporated in a jurisdiction other than
England and Wales, a legal opinion of the legal advisers to the Agent in
the jurisdiction in which the Additional Obligor is incorporated.
9. If the proposed Additional Obligor is incorporated in a jurisdiction other
than England and Wales, evidence that the process agent specified in
Clause 39.2 (Service of process), if not an Obligor, has accepted its
appointment in relation to the proposed Additional Obligor.
- 69 -
SCHEDULE 3
UTILISATION REQUEST
From: [Applicant]
To: [Agent]
Dated:
Dear Sirs
[COMPANY] - [ ] FACILITY AGREEMENT
DATED [ ] (THE "AGREEMENT")
1. We refer to the Agreement. This is a Utilisation Request. Terms
defined in the Agreement have the same meaning in this Utilisation
Request unless given a different meaning in this Utilisation Request.
2. We wish to arrange for a Bond to be issued by [-] as Issuing Bank on the
following terms:
Proposed Utilisation Date: [ ] (or, if that is not a
Business Day, the next Business Day)
Currency of Bond: [ ]
Amount: [ ] or, if less, the Available
Facility
Term: [ ]
Type of Bond: [ ]
Beneficiary of Bond: [ ]
[Correspondent Bank:](1)
3. The Bond is for a purpose specified in Clause 3.1 (Purpose) of the
Agreement and the relevant Indemnifying Company is [o].
4. We confirm that each condition specified in Clause 4.2 (Further conditions
precedent) is satisfied on the date of this Utilisation Request.
5. We attach a copy of the proposed Bond.
6. [We request that L[ ] of the Initial Cash Security provided for us in
respect of Discharged Bonds, which has not already been treated as Initial
Cash Security in respect of any other Bond, be counted towards the Initial
Cash Security to be provided by us in respect of the Bond requested
pursuant to the Utilisation Request.]
7. [We confirm that the form of/Beneficiary of/Optional Currency of/(if
relevant) the tenor of the proposed Bond has been previously approved
by the relevant Issuing Bank](2)
-------------
(1) Insert where relevant
(2) Only if relevant matter has been pre-approved.
- 70 -
8. The Bond is to be delivered to [-].
9. This Utilisation Request is irrevocable.
Yours faithfully
---------------------------------------
authorised signatory for
[Applicant]
- 71 -
SCHEDULE 4
MANDATORY COST FORMULAE
1. The Mandatory Cost is an addition to the interest rate to compensate Banks
for the cost of compliance with (a) the requirements of the Bank of
England and/or the Financial Services Authority (or, in either case, any
other authority which replaces all or any of its functions) or (b) the
requirements of the European Central Bank.
2. On the first day of each Interest Period (or as soon as possible
thereafter) the Agent shall calculate, as a percentage rate, a rate
(the "ADDITIONAL COST RATE") for each Bank, in accordance with the
paragraphs set out below. The Mandatory Cost will be calculated by
the Agent as a weighted average of the Banks' Additional Cost Rates
(weighted in proportion to the percentage participation of each Bank
in the relevant Loan) and will be expressed as a percentage rate per
annum.
3. The Additional Cost Rate for any Bank lending from a Facility Office
in a Participating Member State will be the percentage notified by
that Bank to the Agent. This percentage will be certified by that
Bank in its notice to the Agent to be its reasonable determination of
the cost (expressed as a percentage of that Bank's participation in
all Loans made from that Facility Office) of complying with the
minimum reserve requirements of the European Central Bank in respect
of loans made from that Facility Office.
4. The Additional Cost Rate for any Bank lending from a Facility Office in
the United Kingdom will be calculated by the Agent as follows:
(a) in relation to a sterling Loan:
AB + C(B - D) + E x 0.01
------------------------ per cent. per annum
100 - (A + C )
(b) in relation to a Loan in any currency other than sterling:
E x 0.01
----------------- per cent. per annum
300
Where:
A is the percentage of Eligible Liabilities (assuming these to be in
excess of any stated minimum) which that Bank is from time to time
required to maintain as an interest free cash ratio deposit with the
Bank of England to comply with cash ratio requirements.
B is the percentage rate of interest (excluding the Margin and the
Mandatory Cost and, if the Loan is an Unpaid Sum, the additional
rate of interest specified in sub-clause 10.1.1 of Clause 10.1
(Default Interest)) payable for the relevant Interest Period on the
Loan.
C is the percentage (if any) of Eligible Liabilities which that Bank
is required from time to time to maintain as interest bearing
Special Deposits with the Bank of England.
- 72 -
D is the percentage rate per annum payable by the Bank of England to
the Agent on interest bearing Special Deposits.
E is designed to compensate Banks for amounts payable under the Fees
Rules and is calculated by the Agent as being the average of the
most recent rates of charge supplied by the Reference Banks to the
Agent pursuant to paragraph 7 below and expressed in pounds per
L1,000,000.
5. For the purposes of this Schedule:
(a) "ELIGIBLE LIABILITIES" and "SPECIAL DEPOSITS" have the meanings
given to them from time to time under or pursuant to the Bank of
England Act 1998 or (as may be appropriate) by the Bank of England;
(b) "FEES RULES" means the rules on periodic fees contained in the FSA
Supervision Manual or such other law or regulation as may be in
force from time to time in respect of the payment of fees for the
acceptance of deposits;
(c) "FEE TARIFFS" means the fee tariffs specified in the Fees Rules
under the activity group A.1 Deposit acceptors (ignoring any minimum
fee or zero rated fee required pursuant to the Fees Rules but taking
into account any applicable discount rate); and
(d) "TARIFF BASE" has the meaning given to it in, and will be calculated
in accordance with, the Fees Rules.
6. In application of the above formulae, A, B, C and D will be included
in the formulae as percentages (i.e. 5 per cent. will be included in
the formula as 5 and not as 0.05). A negative result obtained by
subtracting D from B shall be taken as zero. The resulting figures
shall be rounded to four decimal places.
7. If requested by the Agent, each Reference Bank shall, as soon as
practicable after publication by the Financial Services Authority,
supply to the Agent, the rate of charge payable by that Reference
Bank to the Financial Services Authority pursuant to the Fees Rules
in respect of the relevant financial year of the Financial Services
Authority (calculated for this purpose by that Reference Bank as
being the average of the Fee Tariffs applicable to that Reference
Bank for that financial year) and expressed in pounds per L1,000,000
of the Tariff Base of that Reference Bank.
8. Each Bank shall supply any information required by the Agent for the
purpose of calculating its Additional Cost Rate. In particular, but
without limitation, each Bank shall supply the following information on or
prior to the date on which it becomes a Bank:
(a) the jurisdiction of its Facility Office; and
(b) any other information that the Agent may reasonably require for such
purpose.
Each Bank shall promptly notify the Agent of any change to the information
provided by it pursuant to this paragraph.
- 73 -
9. The percentages of each Bank for the purpose of A and C above and
the rates of charge of each Reference Bank for the purpose of E above
shall be determined by the Agent based upon the information supplied
to it pursuant to paragraphs 7 and 8 above and on the assumption
that, unless a Bank notifies the Agent to the contrary, each Bank's
obligations in relation to cash ratio deposits and Special Deposits
are the same as those of a typical bank from its jurisdiction of
incorporation with a Facility Office in the same jurisdiction as its
Facility Office.
10. The Agent shall have no liability to any person if such determination
results in an Additional Cost Rate which over or under compensates any
Bank and shall be entitled to assume that the information provided by any
Bank or Reference Bank pursuant to paragraphs 3, 7 and 8 above is true and
correct in all respects.
11. The Agent shall distribute the additional amounts received as a result of
the Mandatory Cost to the Banks on the basis of the Additional Cost Rate
for each Bank based on the information provided by each Bank and each
Reference Bank pursuant to paragraphs 3, 7 and 8 above.
12. Any determination by the Agent pursuant to this Schedule in relation to a
formula, the Mandatory Cost, an Additional Cost Rate or any amount payable
to a Bank shall, in the absence of manifest error, be conclusive and
binding on all Parties.
13. The Agent may from time to time, after consultation with the Parent
and the Banks, determine and notify to all Parties any amendments
which are required to be made to this Schedule in order to comply
with any change in law, regulation or any requirements from time to
time imposed by the Bank of England, the Financial Services Authority
or the European Central Bank (or, in any case, any other authority
which replaces all or any of its functions) and any such
determination shall, in the absence of manifest error, be conclusive
and binding on all Parties.
- 74 -
SCHEDULE 5
FORM OF TRANSFER CERTIFICATES
To: [ ] as Agent
From: [The Existing Bank] (the "EXISTING BANK") and [The New Bank] (the
"NEW BANK")
Dated:
[COMPANY] - [ ] FACILITY AGREEMENT
DATED [ ] (THE "AGREEMENT")
1. We refer to the Agreement. This is a Transfer Certificate. Terms
defined in the Agreement have the same meaning in this Transfer
Certificate unless given a different meaning in this Transfer
Certificate.
2. We refer to Clause 25.5 (Procedure for transfer):
(a) The Existing Bank and the New Bank agree to the Existing Bank
transferring to the New Bank by novation all or part of the Existing
Bank's Commitment, rights and obligations referred to in the
Schedule in accordance with Clause 25.5 (Procedure for transfer).
(b) The proposed Transfer Date is [ ].
(c) The Facility Office and address, fax number and attention details
for notices of the New Bank for the purposes of Clause 32.2
(Addresses) are set out in the Schedule.
3. The New Bank expressly acknowledges the limitations on the Existing Bank's
obligations set out in sub-clause 25.4.3 of Clause 25.4 (Limitation of
responsibility of Existing Banks).
4. This Transfer Certificate may be executed in any number of counterparts
and this has the same effect as if the signatures on the counterparts were
on a single copy of this Transfer Certificate.
5. This Transfer Certificate is governed by English law.
- 75 -
THE SCHEDULE
COMMITMENT/RIGHTS AND OBLIGATIONS TO BE TRANSFERRED
[insert relevant details]
[Facility Office address, fax number and attention details for notices and
account details for payments,]
[Existing Bank] [New Bank]
By: By:
This Transfer Certificate is accepted by the Agent and the Transfer
Date is confirmed as [ ].
[Agent]
By:
- 76 -
SCHEDULE 6
FORM OF ACCESSION LETTER
To: [ ] as Agent
From: [Subsidiary] and [Company]
Dated:
Dear Sirs
[COMPANY] - [ ] FACILITY AGREEMENT
DATED [ ] (THE "AGREEMENT")
1. We refer to the Agreement. This is an Accession Letter. Terms
defined in the Agreement have the same meaning in this Accession
Letter unless given a different meaning in this Accession Letter.
2. [Subsidiary] agrees to become an Additional Indemnifying Company and to be
bound by the terms of the Agreement as an Additional Indemnifying Company
pursuant to Clause 26.2 (Additional Indemnifying Companies) of the
Agreement. [Subsidiary] is a company duly incorporated under the laws of
[name of relevant jurisdiction].
3. [Subsidiary's] administrative details are as follows:
Address:
Fax No:
Attention:
4. This Accession Letter is governed by English law.
[Company] [Subsidiary]
- 77 -
SCHEDULE 7
TIMETABLES
SPECIFIED TIME
--------------
Agent notifies the Application if a D - 4
currency is approved as an Optional 11.00 am
Currency in accordance with Clause
4.3 (Conditions relating to Optional
Currencies)
Delivery of a duly completed D - 3
Utilisation Request (Clause 5.1) 11.00 am
(Delivery of a Utilisation Request
for Bonds)
Agent notifies the Application if D - 1
the form, beneficiary or tenor of 11.00 am
the Bond is not approved in
accordance with sub-clause 5.2.3 of
Clause 5.2 (Completion of a
Utilisation Request)
Agent determines (in relation to a D - 1
Utilisation) the Base Currency Noon
Amount of the Bond, if required
under Clause 5.4 (Issue of Bonds)
and notifies the Issuing Bank and
the Banks of the Bond in accordance
with Clause 5.4 (Issue of Bonds)
D = Utilisation Date
D-x = Business Days prior to Utilisation Date
- 78 -
SCHEDULE 8
FORM OF LMA CONFIDENTIALITY UNDERTAKING
[LETTERHEAD OF EXISTING BANK]
To:
[insert name of Potential
New Bank]
Re: THE AGREEMENT
APPLICANT: Marconi Bonding Limited
DATE: [ ] 2003
AMOUNT: L50,000,000
AGENT: HSBC Bank plc
Dear Sirs
We understand that you are considering acquiring an interest in the Agreement
(the "ACQUISITION"). In consideration of us agreeing to make available to you
certain information, by your signature of a copy of this letter you agree as
follows:
1. CONFIDENTIALITY UNDERTAKING
You 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 your 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 you pass any Confidential Information (unless disclosed
under paragraph 2(c) 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 Acquisition.
2. PERMITTED DISCLOSURE
We agree that you 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;
- 79 -
(b) subject to the requirements of the Agreement, to any person to (or
through) whom you assign or transfer (or may potentially assign or
transfer) all or any of the rights, benefits and obligations which
you may acquire under the Agreement or with (or through) whom you
enter into (or may potentially enter into) any sub-participation in
relation to, or any other transaction under which payments are to be
made by reference to, the Agreement or the Borrower or any member of
the Group in each case so long as that person has delivered a letter
to you in equivalent form to this letter; and
(c) (i) where requested or required by any court of competent
jurisdiction or any competent judicial, governmental, supervisory or
regulatory body, (ii) where required by the rules of any stock
exchange on which the shares or other securities of any member of
the 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
You agree (to the extent permitted by law) to inform us of the full
circumstances of any disclosure under paragraph 2(c) or upon becoming
aware that Confidential Information has been disclosed in breach of this
letter.
4. RETURN OF COPIES
If we so request in writing, you shall return all Confidential Information
supplied to you by us and destroy or permanently erase all copies of
Confidential Information made by you and use all reasonable endeavours to
ensure that anyone to whom you have supplied any Confidential Information
destroys or permanently erases such Confidential Information and any
copies made by them, in each case save to the extent that you or the
recipients are required to retain any such Confidential Information by any
applicable law, rule or regulation or by any competent judicial,
governmental, supervisory or regulatory body or in accordance with
internal policy, or where the Confidential Information has been disclosed
under paragraph 2(c) 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 you become a party to or otherwise acquire (by
assignment or sub-participation) an interest, direct or indirect, in the
Agreement or (b) twelve months after you have returned all Confidential
Information supplied to you by us and destroyed or permanently erased all
copies of Confidential Information made by you (other than any such
Confidential Information or copies which have been disclosed under
paragraph 2 above (other than sub-paragraph 2(a)) or which, pursuant to
paragraph 4 above, are not required to be returned or destroyed).
6. NO REPRESENTATION; CONSEQUENCES OF BREACH, ETC
You acknowledge and agree that:
- 80 -
(a) neither we, nor any member of the Group nor any of our or their
respective officers, employees or advisers (each a "RELEVANT
PERSON") (i) make any representation or warranty, express or
implied, as to, or assume any responsibility for, the accuracy,
reliability or completeness of any of the Confidential Information
or any other information supplied by us or the assumptions on which
it is based or (ii) shall be under any obligation to update or
correct any inaccuracy in the Confidential Information or any other
information supplied by us or be otherwise liable to you or any
other person in respect to the Confidential Information or any such
information; and
(b) we or members of the Group may be irreparably harmed by the breach
of the terms 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 you.
7. NO WAIVER; AMENDMENTS, ETC
This letter sets out the full extent of your obligations of
confidentiality owed to us in relation to the information the subject of
this letter. No failure or delay in exercising any right, power or
privilege 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 your obligations hereunder may
only be amended or modified by written agreement between us.
8. INSIDE INFORMATION
You acknowledge that some or all of the Confidential Information is or may
be price-sensitive information and that the use of such information may be
regulated or prohibited by applicable legislation relating to insider
dealing and you undertake not to use any Confidential Information for any
unlawful purpose.
9. NATURE OF UNDERTAKINGS
The undertakings given by you under this letter are given to us and
(without implying any fiduciary obligations on our part) are also given
for the benefit of the Borrower and each other member of the Group.
10. THIRD PARTY RIGHTS
(a) Subject to this paragraph 10 and to paragraphs 6 and 9, a person who
is not a party to this letter has no right under the Contracts
(Rights of Third Parties) Act 1999 (the "THIRD PARTIES ACT") to
enforce or to enjoy the benefit of any term of this letter.
(b) The Relevant Persons may enjoy the benefit of the terms of
paragraphs 6 and 9 subject to and in accordance with this paragraph
10 and the provisions of the Third Parties Act.
- 81 -
(c) The parties to this letter do not require the consent of the
Relevant Persons to rescind or vary this letter at any time.
11. GOVERNING LAW AND JURISDICTION
(a) This letter (including the agreement constituted by your
acknowledgement of its terms) is governed by English law.
(b) The parties submit to the non-exclusive jurisdiction of the English
courts.
12. DEFINITIONS
In this letter (including the acknowledgement set out below) terms defined
in the Agreement shall, unless the context otherwise requires, have the
same meaning and:
"CONFIDENTIAL INFORMATION" means any information relating to the Borrower,
the Group, the Agreement and/or the Acquisition provided to you by us or
any of our 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 you before the date the
information is disclosed to you by us or any of our affiliates or advisers
or is lawfully obtained by you thereafter, other than from a source which
is connected with the Group and which, in either case, as far as you are
aware, has not been obtained in violation of, and is not otherwise subject
to, any obligation of confidentiality;
"GROUP" means the Borrower and each of its holding companies and
subsidiaries and each subsidiary of each of its holding companies (as each
such term is defined in the Companies Act 1985);
"PERMITTED PURPOSE" means considering and evaluating whether to enter
into the Acquisition; and
"PURCHASER GROUP" means you, each of your holding companies and
subsidiaries and each subsidiary of each of your holding companies (as
each such term is defined in the Companies Act 1985).
Please acknowledge your agreement to the above by signing and returning
the enclosed copy.
Yours faithfully
-----------------------------------
For and on behalf of
[Existing Bank]
To: [Existing Bank ]
- 82 -
and the Applicant
We acknowledge and agree to the above:
-----------------------------------
For and on behalf of
[POTENTIAL NEW BANK]
- 83 -
SCHEDULE 9
DRAFT INDENTURE TERMS
- 84 -
SCHEDULE 10
FORM OF SCHEME EXPENSES BOND
- 85 -
SIGNATURES
THE APPLICANT
MARCONI BONDING LIMITED
By: XXXXXX XXXXXXX XXXXXX XXXXXXXX
Address: Xxx Xxxxxxx Xxxx
X.X. Xxx 00
Xxxxxxxx XX0 0XX
Fax: 000 0000 0000
THE COMPANY
MARCONI CORPORATION PLC
By: XXXX XXXXXX XXXXXX
Address: 00 Xxxxxxxxx Xxxx
Xxxxxx X00 0XX
THE ORIGINAL ISSUING BANKS
HSBC BANK PLC
By: XXX XxXXXXXX
Address: 0 Xxxxxx Xxxxxx
Xxxxxx X00 0XX
Fax: 000 0000 0000
XX XXXXXX XXXXX BANK
By: XXXX XXXXXXX
Address: 000 Xxxxxx Xxxx
Xxxxxx XX0X 0XX
Fax: 000 0000 0000
- 86 -
THE ORIGINAL BANKS
HSBC BANK PLC
By: XXX XxXXXXXX
Address: 0 Xxxxxx Xxxxxx
Xxxxxx X00 0XX
Fax: 000 0000 0000
XX XXXXXX CHASE BANK
By: XXXX XXXXXXX
Address: 000 Xxxxxx Xxxx
Xxxxxx XX0X 0XX
Fax: 000 0000 0000
THE AGENT
HSBC BANK PLC
By: XXXX XXXXXXXXXXX
Address: 0 Xxxxxx Xxxxxx
Xxxxxx X00 0XX
Fax: 000 0000 0000
THE SECURITY TRUSTEE
HSBC BANK PLC
By: XXXX XXXXXXXXXXX
Address: 0 Xxxxxx Xxxxxx
Xxxxxx X00 0XX
Fax: 000 0000 0000
ORIGINAL INDEMNIFYING COMPANIES
- 87 -
MARCONI CORPORATION PLC
By: XXXX XXXXXX XXXXXX
Address: 00 Xxxxxxxxx Xxxx
Xxxxxx X00 0XX
ALBANY PARTNERSHIP LIMITED
By: XXXXXX XXXXXXX XXXXXX XXXXXXXX
Address: Xxx Xxxxxxx Xxxx
X.X. Xxx 00
Xxxxxxxx XX0 0XX
Fax: 000 0000 0000
GPT SPECIAL PROJECT MANAGEMENT LIMITED
By: XXXXXX XXXXXXX XXXXXX XXXXXXXX
Address: Xxx Xxxxxxx Xxxx
X.X. Xxx 00
Xxxxxxxx XX0 0XX
Fax: 000 0000 0000
MARCONI COMMUNICATIONS CHINA LIMITED
By: XXXXXX XXXXXXX XXXXXX XXXXXXXX
Address: Xxx Xxxxxxx Xxxx
X.X. Xxx 00
Xxxxxxxx XX0 0XX
Fax: 000 0000 0000
- 88 -
MARCONI COMMUNICATIONS GMBH
By: XXXXXXX XXXXXXX AND XXXXXXX XXXX
Address: Xxxxxxxxxxxx 00
00000 Xxxxxxxx,
Xxxxxxx
Fax: + 00 0000 00 0000
MARCONI COMMUNICATIONS INTERNATIONAL LIMITED
By: XXXXXX XXXXXXX XXXXXX XXXXXXXX
Address: Xxx Xxxxxxx Xxxx
X.X. Xxx 00
Xxxxxxxx XX0 0XX
Fax: 000 0000 0000
MARCONI COMMUNICATIONS LTD
By: XXXXXX XXXXXXX XXXXXX XXXXXXXX
Address: Xxx Xxxxxxx Xxxx
X.X. Xxx 00
Xxxxxxxx XX0 0XX
Fax: 000 0000 0000
MARCONI COMMUNICATIONS SPA
By: XXXX XXXXXX XXXXXX
Address: 00 Xxxxxxxxx Xxxx
Xxxxxx X00 0XX
MARCONI INTERNATIONAL SPA
By: XXXX XXXXXX XXXXXX
Address: 00 Xxxxxxxxx Xxxx
Xxxxxx X00 0XX
- 89 -
METAPATH SOFTWARE INTERNATIONAL LIMITED
By: XXXXXX XXXXXXX XXXXXX XXXXXXXX
Address: Xxx Xxxxxxx Xxxx
X.X. Xxx 00
Xxxxxxxx XX0 0XX
Fax: 000 0000 0000
MARCONI MOBILE ACCESS SPA
By: XXXX XXXXXX XXXXXX
Address: 00 Xxxxxxxxx Xxxx
Xxxxxx X00 0XX
MARCONI SUD SPA
By: XXXX XXXXXX XXXXXX
Address: 00 Xxxxxxxxx Xxxx
Xxxxxx X00 0XX
- 90 -
CONFORMED COPY
HSBC BANK PLC
AS SECURITY TRUSTEE
AND
MARCONI BONDING LIMITED
AS COMPANY
SECURITY OVER CASH AGREEMENT
CONTENTS
CLAUSE PAGE
1. Definitions And Interpretation............................................ 1
2. Charge.................................................................... 2
3. Accounts And Deposits..................................................... 2
4. Effectiveness Of Security................................................. 5
5. Company's Rights And Undertakings......................................... 6
6. Further Assurance......................................................... 7
7. Power Of Attorney......................................................... 7
8. Subsequent Interests...................................................... 7
9. Miscellaneous Clauses..................................................... 7
SECURITY OVER CASH AGREEMENT
THIS AGREEMENT is made on 27 March 2003
BETWEEN
(1) HSBC BANK PLC (the "SECURITY TRUSTEE") of Poultry, Xxxxxx XX0X 0XX and
fax number 000 0000 0000; and
(2) MARCONI BONDING LIMITED (the "APPLICANT") of New Coventry Park, XX Xxx
00, Xxxxxxxx, Xxxxxxxxxxxx XX0 0XX and fax number 0000 000 0000
(registered number 3818628).
WHEREAS
(A) Pursuant to the terms of the Bonding Facility Agreement (as defined
below) and at the request of the Applicant, the Issuing Banks have
agreed to grant the Applicant a revolving bonding facility.
(B) The Applicant has agreed to indemnify the Issuing Banks in respect of
any liability which the Issuing Banks incur under the Bonding Facility
Agreement.
(C) As security for its obligations under the Finance Documents, the
Applicant has agreed to place cash deposits with the Security Trustee
as trustee for and on behalf of the Issuing Banks and the Banks.
IT IS HEREBY AGREED that the cash deposits placed by the Applicant with the
Security Trustee shall be held pursuant and subject to the following terms and
conditions:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement, terms defined in, and the principles of
interpretation set out in, the Bonding Facility Agreement shall, unless
otherwise provided herein, apply to this Agreement.
1.2 In this Agreement:
"ACCOUNTS" means each account of the Applicant with the Security
Trustee and designated as a "Cash Collateral Security Account" by the
Security Trustee (together with any substitute, replacement or
sub-account in relation to such designated account).
"ACCOUNT BALANCE" means, in relation to an Account, the total sum
standing to the credit of such Account (including all amounts in
respect of earnings on such Account which have been credited thereto).
"BONDING FACILITY AGREEMENT" means the L50,000,000 committed
multicurrency revolving bonding facility agreement of even date entered
into between (inter alios) HSBC Bank plc and the Applicant.
"COLLATERAL RIGHTS" means all rights, powers and remedies of the
Security Trustee provided by or pursuant to this Agreement or by law.
-1-
"DEPOSIT" means each sum from time to time standing to the credit of an
Account (including all amounts in respect of earnings on such Account
which have been credited thereto).
"ESCROW BANK" means the financial institution appointed as escrow bank
in respect of the accounts to be operated pursuant to the Escrow
Agreement.
"MANDATORY REDEMPTION ESCROW ACCOUNT" has the meaning given thereto in
the Escrow Agreement.
"SECURED OBLIGATIONS" means all obligations owing to the Finance
Parties (in their capacity as such) by the Applicant under or pursuant
to the Finance Documents whether present or future, actual or
contingent, as principal or as surety.
1.3 In this Agreement, any reference to (a) a "Clause" is, unless otherwise
stated, a reference to a Clause hereof and (b) "this Agreement", "the
Finance Document " or the "Bonding Facility Agreement" is a reference
to this Agreement, the Finance Document or the Bonding Facility
Agreement (as applicable) as amended, varied or supplemented from time
to time. Clause headings are for ease of reference only.
2. CHARGE
2.1 The Applicant charges the Accounts and the Deposits, with full title
guarantee, by way of first fixed charge, in favour of the Security
Trustee (as trustee for and on behalf of all the Finance Parties on the
terms set out in the Bonding Facility Agreement) for the payment and
discharge of all of the Secured Obligations.
2.2 This Agreement shall constitute notice to the Security Trustee of the
charge referred to in Clause 2.1.
3. ACCOUNTS AND DEPOSITS
3.1 If all or any part of the Secured Obligations are due and payable but
unpaid, the Security Trustee shall be entitled (but shall, to the
extent reasonably practicable, give prior notice of the same to the
Applicant) to set-off or transfer all or part of the Account Balances
(or any of them) in or towards satisfaction of such amount which has
become due and payable PROVIDED THAT when discharging any part of the
Secured Obligations pursuant to this Clause 3.1, such liability shall
be set off against or transferred from:
3.1.1 firstly, the Account Balance (if any) of the Account
denominated in the currency of the relevant Secured
Obligation; and
3.1.2 thereafter, against the Account Balance of any other Account
(applying such commercial rate of exchange as the Security
Trustee shall reasonably determine).
-2-
3.2 Subject to Clause 3.3, except with the Security Trustee's prior written
consent, each Deposit in an Account shall be maintained on the terms
that it shall mature on (but not before) the earlier of:
3.2.1 the first time at which the Security Trustee reasonably
determines (and the Security Trustee shall make such
determination promptly upon a request by the Applicant) that
(a) there are no outstanding Secured Obligations and (b) no
Finance Party is under any obligation or liability (whether
actual or contingent) under the Finance Documents or the
Bonds;
3.2.2 the close of business in London on the date on which all or
any part of any Secured Obligations shall have become due and
payable and shall not have been paid upon becoming so due and
payable, but in any case where only part of the Secured
Obligations have become due and payable, then only such part
of the Deposits as corresponds to the amount of the Secured
Obligations as have become due and payable shall so mature;
3.2.3 the close of business in London on the last day of the
Availability Period, PROVIDED THAT (a) all Long Dated Bonds
have been repaid in accordance with clause 7.1 or clause 7.2
of the Bonding Facility Agreement and (b) no Finance Party is
under any other obligation or liability (whether actual or
contingent) under the Finance Documents or the Bonds which has
not been fully collateralised by the provision of cash cover
(as defined in the Bonding Facility Agreement), in which case
such amount of the relevant Deposits as is equal to the amount
of all Deposits then held by the Security Trustee LESS (i) the
amount of the Deposits as corresponds to the face value of all
Long Dated Bonds which have been prepaid in accordance with
clause 7.1 of the Bonding Facility by the provision of cash
cover (as defined in the New Bonding Agreement) and (ii) the
amount of Deposits held as collateral in respect of any other
obligations or liabilities (actual or contingent) under the
Finance Documents or the Bonds shall so mature;
3.2.4 in circumstances where, after the expiry of the Availability
Period, the relevant Issuing Bank is satisfied that it has no
further liability under or in respect of a Long Dated Bond
which has been repaid in accordance with clause 7.1 of the
Bonding Facility by the provision of cash cover (as defined in
the Bonding Facility Agreement) (a "TERMINATED BOND"), and
provided that (a) all other Long Dated Bonds have been repaid
in accordance with clause 7.1 or 7.2 of the Bonding Facility
Agreement and (b) no Finance Party is under any other
obligation or liability (whether actual or contingent) under
the Finance Documents or the Bonds which has not been fully
collateralised by the provision of cash cover (as defined in
the Bonding Facility Agreement), the close of business in
London on the day on which such Long Dated Bond becomes a
Terminated Bond, in which case only such amount of the
relevant Deposits as corresponds to the face value of the
relevant Long Dated Bond shall so mature;
-3-
3.2.5 at any other time, PROVIDED THAT the aggregate Base Currency
amount of all cash security provided pursuant to clause 22
(Security Undertakings) of the Bonding Facility Agreement and
all other cash cover (as defined in the Bonding Facility
Agreement) provided generally pursuant to the terms of the
Bonding Facility Agreement standing to the credit of the
Accounts and any other account held with the Security Trustee
(as referred to in paragraph (j) of sub-clause 1.2.1 of Clause
1.2 (Construction) of the Bonding Facility Agreement),
together with all interest earned on and credited to the
Accounts and/or those account, exceeds the lesser of (i)
L50,000,000 or (ii) the Total Commitments under the Bonding
Facility Agreement (such excess amount being a "COLLATERAL
EXCESS"), in which case only the amount of such Collateral
Excess shall so mature,
so that, at such time as such Deposit (or the relevant part thereof)
shall mature (or at any time thereafter), it (or the relevant part
thereof) shall become repayable to the Applicant subject to (a) any
rights of set-off, combination or consolidation in respect of such
Deposit which the Security Trustee may be entitled to exercise either
under this Agreement or at law and (b) the provisions of Clause 3.6.
In any case where any Deposit or any part thereof is to mature in
accordance with sub-Clauses 3.2.3 or 3.2.4, the Deposit or Deposits (or
part or parts thereof) which shall so mature shall first be those on
the Account or Accounts denominated in the currency of the relevant
Long Dated Bond and, thereafter, to the extent that there are
insufficient Deposits in such Account or Accounts or if there is no
such Account, on any other Account (applying such commercial rate of
exchange as the Security Trustee shall reasonably determine).
3.3 Notwithstanding Clauses 3.1 and 3.2, in circumstances where the
Applicant is entitled to request a roll-over of the Initial Cash
Security provided in respect of a Discharged Bond pursuant to, and in
accordance with the provisions of clause 22.3 (Roll-over of Initial
Cash Security) of the Bonding Facility Agreement, but subject to any
rights of set off or transfer which the Security Trustee has already
exercised or is entitled to exercise pursuant to Clause 3.1, the
relevant amount of the relevant Deposit or Account Balance (as
appropriate) in the relevant Account shall be capable of being and may
be transferred to another Account to stand as security in respect of
another Bond to be issued pursuant to the Bonding Facility Agreement,
(and for this purpose, the Security Trustee is authorised to any enter
into any currency exchange transactions as may be necessary).
3.4 If the Applicant fails to fulfil its indemnity obligations under clause
8 of the Bonding Facility Agreement by close of business in London on
the day upon which such indemnity obligations are required to be
fulfilled in any case where only part of the Secured Obligations have
become due and payable then only so much of the relevant Deposit shall
mature as equals the amount to be indemnified by the Applicant pursuant
to clause 8 of the Bonding Facility Agreement.
3.5 Save for any second ranking security granted pursuant to the terms of
the Notes Indentures for the benefit of the holders of the Notes, as
contemplated pursuant to the terms of the Security Trust and
Intercreditor Deed or the Escrow Agreement or (otherwise) with the
Security Trustee's prior written consent, no right, title or interest
in
-4-
relation to any Account or any Deposit or to this Agreement shall be
(a) capable of assignment or other disposal or (b) the subject of (and
the Applicant shall not permit to exist) any security or other third
party interest other than the security created pursuant to this
Agreement.
3.6 To the extent that the Company is under any obligation pursuant to the
terms of the Escrow Agreement and/or the Notes Indentures to procure
that any Deposit (or any part thereof) is upon maturity to be deposited
into the Mandatory Redemption Escrow Account, the Applicant hereby
authorises the Security Trustee (but without imposing any obligation
upon the Security Trustee) to pay over the amount of such Deposit (or
the relevant part thereof) to the Escrow Bank to be so deposited into
the Mandatory Redemption Escrow Account and any such payment by the
Security Trustee shall constitute a good discharge towards the
Applicant in respect of such Deposit (or the relevant part thereof).
4. EFFECTIVENESS OF SECURITY
4.1 The security constituted and the rights, powers and remedies provided
by this Agreement shall be cumulative, in addition to and independent
of every other security which the Security Trustee may at any time hold
for the Secured Obligations or any rights, powers and remedies of the
Security Trustee provided by law (each such right, power and remedy
under this Agreement and at law being a "COLLATERAL RIGHT").
4.2 This Agreement shall remain in full force and effect as a continuing
arrangement unless and until the Security Trustee discharges it. Upon
the maturity of all Deposits pursuant to sub-clause 3.2.1 and PROVIDED
THAT (a) there are no outstanding Secured Obligations and (b) no
Finance Party is under any obligation or liability (whether actual or
contingent) under the Finance Documents or the Bonds, the Security
Trustee shall, on the Applicant's request, release the Applicant from
its obligations under the Finance Documents and release the charge
created pursuant to Clause 2.1.
4.3 No failure on the part of the Security Trustee to exercise, or delay on
its part in exercising, any Collateral Right shall operate as a waiver
thereof, nor shall any single or partial exercise of a Collateral Right
preclude any further or other exercise of that or any other Collateral
Right.
4.4 The obligations of the Applicant under this Agreement and the
Collateral Rights shall not be discharged, impaired or otherwise
affected by:
4.4.1 any lack of validity, legality, effectiveness or
enforceability of (a) the Finance Documents or the Bonds or
any agreement or instrument relating thereto (collectively,
the "RELATED DOCUMENTS") or (b) any obligation under any
Related Document;
4.4.2 any amendment or waiver of or any consent to departure from or
any release of any of the obligations of any party under all
or any of the Related Documents other than in accordance with
and to the extent expressly stated in any written amendment,
waiver, consent or release (and subject to the conditions
thereof)
-5-
(and "written" shall include, for the avoidance of doubt, any
communication by electronic mail);
4.4.3 the existence of any claim, set-off, defence or other right
which the Applicant or any Obligor may have at any time
against the Security Trustee or any other person or entity,
whether in connection with the transactions contemplated in
the Related Documents, or any unrelated transaction or the
attachment (or similar order of court) of any payment under
the Related Documents;
4.4.4 any winding-up, dissolution, administration or re-organisation
of or other change in the Applicant, any Obligor or any other
company, corporation, partnership or other person;
4.4.5 any time or other indulgence being granted to the Applicant,
any Obligor or any other company, corporation, partnership or
other person other than in accordance with and to the extent
expressly stated in any written document (including, for the
avoidance of doubt, any communication by electronic mail)
referring to such indulgence;
4.4.6 any failure to take or failure to realise the value of any
collateral in respect of the obligations of the Applicant
under the Related Documents or any release, discharge,
exchange or substitution of any such collateral other than in
accordance with and to the extent expressly stated in any
written document (including, for the avoidance of doubt, any
communication by electronic mail) referring to such release,
discharge, exchange or substitution;
4.4.7 any other act, event or omission which but for this provision
would or might operate to impair, discharge or otherwise
affect the obligations of the Applicant hereunder.
4.5 Neither the Security Trustee nor any other Finance Party shall be
obliged to make any demand on the Applicant or any Obligor on whose
behalf a Bond was issued, to take any action or obtain judgment in any
court against any such party or to make or file any proof or claim in a
liquidation or insolvency of any such party or to enforce or seek to
enforce any security held in respect of the obligations of the
Applicant under the Finance Documents before exercising any Collateral
Right.
5. COMPANY'S RIGHTS AND UNDERTAKINGS
5.1 Any settlement or discharge hereunder shall be conditional upon no
payment to the Finance Parties by or on behalf of the Applicant being
avoided or reduced by virtue of any bankruptcy, insolvency, liquidation
or similar laws of general application and shall in those circumstances
be void.
5.2 The Applicant hereby represents and warrants to the Security Trustee
and undertakes during the subsistence of this Agreement that:
5.2.1 it is and will be the sole, lawful and beneficial owner of
each Account and each Deposit free from any security interest
or third party right except the security
-6-
and other rights granted to the Security Trustee under the
Finance Documents and the second ranking security referred to
in Clause 3.5; and
5.2.2 save as provided in the Finance Documents, it will not sell or
dispose of the benefit of all or any of its rights, title and
interest in any Account or any Deposit.
6. FURTHER ASSURANCE
The Applicant shall promptly upon notice from the Security Trustee
execute all documents and do all things that the Security Trustee may
reasonably specify for the purpose of (a) exercising the Collateral
Rights or (b) securing and perfecting its security over or title to all
or any part of the Accounts and the Deposits.
7. POWER OF ATTORNEY
The Applicant, by way of security, irrevocably appoints the Security
Trustee to be its attorney and in its name, on its behalf and as its
act and deed to execute, deliver and perfect all documents and do all
things that the Security Trustee may consider to be requisite for (a)
carrying out any obligation imposed on the Applicant under this
Agreement or (b) exercising any of the Collateral Rights. The Applicant
shall ratify and confirm all things done and all documents executed by
the Security Trustee in the proper exercise of that power of attorney.
8. SUBSEQUENT INTERESTS
If the Security Trustee at any time receives notice of any subsequent
mortgage, assignment, charge or other interest affecting all or any
part of any Account and/or any Deposit, all payments thereafter made by
the Applicant to the Security Trustee or the other Finance Documents
shall be treated as having been credited to a new account of the
Applicant and not as having been applied in reduction of the Secured
Obligations as at the time when the Security Trustee received notice.
9. MISCELLANEOUS CLAUSES
The provisions of clauses 37 (Governing Law) and 38 (Jurisdiction) of
the Bonding Facility Agreement shall apply mutatis mutandis as if set
out here in full.
IN WITNESS WHEREOF this Agreement has been signed on behalf of the Security
Trustee and executed as a deed by the Applicant and is intended to be and is
hereby delivered by it as a deed on the date specified above.
-7-
EXECUTION PAGE
THE SECURITY TRUSTEE
HSBC Bank plc
By: XXXX XXXXXXXXXXX
Title: MANAGER
THE APPLICANT
EXECUTED as a DEED
by Marconi Bonding Limited
XXXXX XXXXX XXXXX
Director
X X XXXXXXXXX
Director
