1
EXHIBIT (b)
CONFORMED COPY
AGREEMENT
DATED 29th November, 1995-
US$1,500,000,000
REVOLVING CREDIT FACILITY
FOR
XXXXX plc
ARRANGED BY
BANKERS TRUST COMPANY
NATWEST CAPITAL MARKETS LIMITED
AND
SBC XXXXXXX
XXXXX & OVERY
London
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INDEX
CLAUSE PAGE
------ ----
1. INTERPRETATION.................................................................................................2
2. THE FACILITY..................................................................................................14
3 PURPOSE........................................................................................................14
4. CONDITIONS PRECEDENT..........................................................................................15
5. DRAWDOWN......................................................................................................16
6. REPAYMENT.....................................................................................................18
7. PREPAYMENT AND CANCELLATION...................................................................................18
8. INTEREST......................................................................................................20
9. OPTIONAL CURRENCIES...........................................................................................21
10. PAYMENTS.....................................................................................................24
11. TAXES........................................................................................................26
17. UNDERTAKINGS.................................................................................................39
18. DEFAULT......................................................................................................52
19. THE AGENT AND THE ARRANGERS..................................................................................56
26. CHANGES TO THE PARTIES.......................................................................................66
27. DISCLOSURE OF INFORMATION....................................................................................70
28. SET-OFF......................................................................................................71
29. PRO RATA SHARING.............................................................................................71
30. SEVERABILITY.................................................................................................73
31. COUNTERPARTS.................................................................................................73
32. NOTICES......................................................................................................73
33. LANGUAGE.....................................................................................................74
34. JURISDICTION.................................................................................................74
35. GOVERNING LAW................................................................................................76
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SCHEDULES
1 Banks and Commitments.....................................................
2 Condtions Precedent Documents.............................................
Part I -- To be delivered before the first Loan................................
Part II -- To be delivered by an Additional Borrower...........................
3 Calculation of the MA Cost................................................
4 Form of Request...........................................................
5 Form of accession documents...............................................
Part I -- Form of Novation Certificate.........................................
Part II -- Borrower Accession Agreement........................................
Part III -- Borrower Cessation Notice..........................................
6 Timetable.................................................................
7 Facility Offices..........................................................
Signatories....................................................................
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THIS AGREEMENT is dated 29th November, 1995 between:
(1) XXXXX plc (incorporated in England and Wales, registered no. 166023)
(the "COMPANY");
(2) XXXXX INC. (incorporated in the State of Delaware, U.S.A.) and
DEUTSCHE XXXXX GmbH (incorporated in Germany) as original borrowers
(the "ORIGINAL BORROWERS");
(3) BANKERS TRUST COMPANY, NATWEST CAPITAL MARKETS LIMITED
and SBC WARBURG, a division of SWISS BANK CORPORATION, as arrangers
(in this capacity the "ARRANGERS");
(4) THE FINANCIAL INSTITUTIONS listed in Schedule 1 as banks (the "BANKS");
and
(5) SWISS BANK CORPORATION as agent (in this capacity the "AGENT").
IT IS AGREED as follows:
1. INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"ADDITIONAL BORROWER"
means a member of the Group which becomes a Borrower in accordance with
Clause 26.4 (Additional Borrowers).
"AFFILIATE"
means a Subsidiary or a Holding Company (as defined in Section 736 of
the Companies Act 1985) of a person and any other Subsidiary of that
Holding Company.
"AGENT'S SPOT RATE OF EXCHANGE"
means the Agent's spot rate of exchange for the purchase of the
relevant Optional Currency in the London foreign exchange market with
Dollars at or about 11.00 a.m. on a particular day.
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"BALANCE SHEET"
means, at any time, the latest published audited consolidated balance
sheet of the Group.
"BORROWER"
means any of the Company, an Original Borrower or an Additional
Borrower (and "BORROWERS" shall mean all of them).
"BORROWER ACCESSION AGREEMENT"
means a letter substantially in the form of Part 11 of Schedule 5 with
such amendments as the Agent may approve or reasonably require.
"BORROWER CESSATION NOTICE"
means a notice substantially in the form set out in Part III of
Schedule 5 with such amendments as the Agent may approve or reasonably
require.
"BORROWINGS"
means:
(a) all items which are of a type which would be accounted for as
borrowings in accordance with the accounting principles
applied in connection with the Original Group Accounts; and
(b) (without double counting) all guarantees, indemnities or other
forms of assurance against financial loss in respect of any
such item in paragraph (a) above of any person.
"BUSINESS DAY"
means a day (other than a Saturday or a Sunday) on which banks are open
for business in London and New York City and (in relation to a
transaction involving ECUs) Paris and Brussels and (in relation to a
transaction involving any other Optional Currency) the principal
financial centre of the country of that Optional Currency.
"CANADIAN DOLLARS"
means the lawful currency for the time being of Canada.
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"COMMITMENT"
means, subject to Clause 26.2 (Transfers by Banks), the amount in
Dollars set opposite the name of a Bank in Schedule 1, to the extent
not cancelled, transferred or reduced under this Agreement.
"DEFAULT"
means an Event of Default or an event which, with the giving of notice
and/or expiry of any grace period, would constitute an Event of
Default.
"DEUTSCHMARKS"
means the lawful currency for the time being of Germany.
"DOLLARS" OR "US$"
means the lawful currency for the time being of the United States of
America.
"DOUBLE TAXATION TREATY"
means any convention between a government of the jurisdiction of
incorporation of a Borrower and any other government for the avoidance
of double taxation and the prevention of fiscal evasion with respect to
taxes on income and capital gains.
"DRAWDOWN DATE"
means the date of the advance of a Loan.
"ECU"
means the European Currency Unit used in the European Monetary System.
"EVENT OF DEFAULT"
means an event specified as such in Clause 18.1 (Events of Default).
"EXISTING FACILITIES"
means:
(a) the Company's syndicated revolving credit facility dated 25th
July, 1994 arranged by NatWest Capital Markets Limited and
X.X. Xxxxxxx & Co. Ltd; and
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(b) Xxxxx Inc.'s secured facility dated 27th July, 1990 arranged
by Bankers Trust Company.
"FACILITY"
means the facility referred to in Clause 2.1 (Facility).
"FACILITY OFFICE"
means, in relation to a Bank, the office(s) notified by a Bank to the
Agent:
(a) on or before the date it becomes a Bank; or
(b) by not less than 5 Business Days' notice,
as the office(s) through which it will perform all or any of its
obligations under this Agreement being, at the date of this Agreement,
the addresses set out in Schedule 7.
"FEE LETTERS"
means the letters dated the date of this Agreement between the Company
and, respectively, the Agent and the Arrangers setting out the amount
of various fees referred to in Clause 20 (Fees).
"FINAL REPAYMENT DATE"
means the fifth anniversary of the date of this Agreement.
"FINANCE DOCUMENT"
means this Agreement, the Fee Letters, a Novation Certificate or any
other document designated in writing as such by the Agent and the
Company.
"FINANCE PARTY"
means an Arranger, a Bank or the Agent.
"FINANCIAL INDEBTEDNESS"
means any indebtedness in respect of:
(a) moneys borrowed and debit balances at banks; or
(b) any debenture, bond, note, loan stock or other security (other
than equity which is not a mechanism for borrowing): or
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(c) any acceptance or documentary credit, except for any such
credit opened in the ordinary course of trade the term of
which is 180 days or less; or
(d) recourse in respect of receivables sold or discounted in the
event that these receivables cannot be collected; or
(e) the acquisition cost of any asset (other than any asset
obtained on normal commercial terms in the ordinary course of
trading) to the extent payable before or after the time of
acquisition or possession by the party liable where the
advance or deferred payment is arranged primarily as a method
of raising finance or financing the acquisition of that asset;
or
(f) leases (whether in respect of land, machinery, equipment or
otherwise) entered into primarily as a method of raising
finance or financing the acquisition of the asset leased; or
(g) currency or interest swap, cap or collar arrangements; or
(h) any guarantee or indemnity given in respect of indebtedness of
a type referred to in sub-paragraphs (a) to (g) above,
"FRENCH FRANCS"
means the lawful currency for the time being of France.
"GROUP"
means the Company and its Subsidiaries.
"LOAN"
means a loan made by the Banks under the Facility or the principal
amount outstanding of that loan.
"LIBOR"
means, in relation to a Loan:
(a) the arithmetic mean (rounded upward to the nearest four
decimal places) of the offered quotations for deposits in the
currency of that Loan for a period comparable to its Term
which appear on the relevant Page (if any) of the Reuters
Screen at or about 11.00 a.m. on the applicable Rate Fixing
Date; or
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(b) if one only or no such offered quotation appears on the
relevant Page of the Reuters Screen or there is no relevant
Page, the rate per annum of the offered quotation for deposits
in the currency of that Loan for a period comparable to its
Term which appears on Telerate Page 3750 or Telerate Page 3740
(as appropriate) at or about 12.00 noon (showing the rate as
at 11.00 am.) on the applicable Rate Fixing Date; or
(c) if one only or no such offered quotation appears on the
relevant Page of the Reuters Screen or there is no relevant
Page and no such offered quotation appears on the relevant
Telerate Page by 12 noon, the arithmetic mean (rounded upward
to the nearest four decimal places) of the rates, as supplied
to the Agent at its request, quoted by each Reference Bank to
leading banks in the London interbank market at or about 11.00
a.m. on the applicable Rate Fixing Date for the offering of
deposits in the currency of that Loan for a period equal or
comparable to its Term.
For the purposes of this definition, "TELERATE PAGE 3750" or "TELERATE
PAGE 3740" means the display designated as "Page 3750" or "Page 3740"
on the Telerate Service (or such other page as may replace Page 3750 or
Page 3740 on that service) or such other service as may be nominated by
the British Bankers' Association as the information vendor for the
purpose of displaying British Bankers' Association Interest Settlement
Rates.
"MAJORITY BANKS"
means, at any time, Banks whose Commitments:
(a) then aggregate more than 67 per cent. of the Total
Commitments; or
(b) if the Total Commitments have been reduced to zero, aggregated
more than 67 per cent. of the Total Commitments immediately
before the reduction.
"MARGIN"
means 0.2 per cent. per annum.
"MATERIAL SUBSIDIARY"
means, at any time:
(a) a Borrower; or
(b) a Subsidiary of the Company the gross assets or profit before
tax and exceptional items and extraordinary items (in both
cases, shown as such in
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its most recently audited accounts) of which (consolidated in
the case of a Subsidiary which itself has Subsidiaries) amount
to 5 per cent. or more of the consolidated gross assets or
profits before tax and exceptional items and extraordinary
items (shown as such in the Balance Sheet or the Profit and
Loss Account) of the Group (all as calculated by reference to
the latest audited consolidated accounts of the Group); or
(c) a Subsidiary of the Company to which has been transferred
(whether by one transaction or a series of transactions,
related or not) the whole or substantially the whole of the
assets of a Subsidiary which immediately prior to such
transactions was a Material Subsidiary.
For the purposes of this definition:
(i) if a Subsidiary of the Borrower becomes a Material Subsidiary
under paragraph (c) above, then the Material Subsidiary from
which the relevant transfer was made shall, subject to
paragraph (b) above, cease to be a Material Subsidiary; and
(ii) if a Subsidiary is acquired by the Company after the end of
the financial period to which the latest audited consolidated
accounts relate, those accounts shall be adjusted as if that
Subsidiary had been shown in them by reference to its then
latest audited accounts (consolidated if appropriate) until
consolidated accounts of the Group for the financial period in
which the acquisition is made have been prepared and audited.
"MLA COST"
means the cost imputed to the Banks of compliance with the mandatory
liquid assets requirements of the Bank of England during the Term of a
Loan denominated in Sterling, determined in accordance with Schedule 3.
"NOVATION CERTIFICATE"
has the meaning given to it in Clause 26.3 (Procedure for novations).
"OPTIONAL CURRENCY"
means Sterling, Canadian Dollars, French Francs, Yen, Deutschmarks,
Swiss Francs or ECUs or any other currency (other than Dollars) which
the Agent certifies is readily available and freely transferable in the
London interbank market.
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"ORIGINAL DOLLAR AMOUNT"
means:
(a) the principal amount of a Loan denominated in Dollars; or
(b) the principal amount of a Loan denominated in an Optional
Currency, translated into Dollars on the basis of the Agent's
Spot Rate of Exchange on the date of receipt by the Agent of
the Request for that Loan.
"ORIGINAL GROUP ACCOUNTS"
means the audited consolidated accounts of the Group for the year ended
1st April, 1995.
"PARTICIPATION DATE"
means:
(a) in relation to a Bank which is an original Party, the date of
this Agreement; and
(b) in relation to any other Bank, the date on which it becomes a
Party.
"PARTY"
means a party to this Agreement.
"PRESCRIBED TIME"
means the time set opposite the number of a sub-Clause or paragraph
under the heading "TIME" in Schedule 6.
"PROFIT AND LOSS ACCOUNT"
means, at any time, the latest published audited consolidated profit
and loss account of the Group.
"QUALIFYING LENDER"
means a bank or financial institution which either:
(a) for a Loan to a Borrower incorporated in the U.K.
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(i) is recognised by the Inland Revenue as a bank
carrying on a bona fide banking business in the U.K.
for the purpose of Section 349 of the Income and
Corporation Taxes Act 1988 and takes any interest
received by it under this Agreement into account as a
trading receipt of such a business; or
(ii) is a Treaty Bank; or
(b) for a Loan to a U.S. Borrower:
(i) is either not a foreign person for U.S. federal
income tax purposes or payments of principal,
interest, fees and other amounts under the Finance
Documents are effectively connected with the conduct
of a trade or business in the United States of
America; or
(ii) is a Treaty Bank.
"RATE FIXING DATE"
means:
(a) the Drawdown Date for a Loan denominated in Sterling; or
(b) the second Business Day before the Drawdown Date for a Loan
denominated in Dollars or an Optional Currency other than
Sterling.
"REFERENCE BANKS"
means, subject to Clause 26.5 (Reference Banks), the principal London
offices of National Westminster Bank Plc, Swiss Bank Corporation and
Bankers Trust Company.
"REGULATION D COSTS"
means, in relation to any Loan made to a US Borrower (or deposits
maintained by a Bank to fund such a Loan), the amount (if any)
certified by a Bank to be the cost to it of complying with Regulation D
of the Board of Governors of the United States Federal Reserve System
(or any similar reserve requirements) in respect of that Loan or those
deposits.
"REPAYMENT DATE"
means the last day of the Term of a Loan.
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"REQUEST"
means a request made by a Borrower for a Loan, substantially in the
form of Schedule 4.
"ROLLOVER LOAN"
means a Loan which:
(a) is being borrowed solely to refinance an outstanding Loan; and
(b) is in the same currency as and is in an amount equal to or
less than that outstanding Loan.
"SECURITY INTEREST"
means any mortgage, pledge, lien, charge, assignment operating by way
of security, hypothecation or security interest, or, in relation to a
jurisdiction other than England and Wales, any other equivalent or
analogous agreement or arrangement having the effect of conferring
security, but excludes, for the avoidance of doubt, set off rights
enjoyed by or against any bank or financial institution which do not
amount to a cash management scheme.
"STERLING" OR "(POUND)"
means the lawful currency for the time being of the U.K.
"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. "Swiss
Francs" means the lawful currency for the time being of Switzerland.
"SWISS FRANCS"
means the lawful currency for the time being of Switzerland.
"TERM"
means, in relation to a Loan, the period for which the Loan is
borrowed, as selected by a Borrower in the Request relevant to that
Loan.
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"TOTAL COMMITMENTS"
means the aggregate for the time being of the Commitments being
US$1,500,000,000 at the date of this Agreement
"TREATY BANK"
means a bank or financial institution which is entitled at its
Participation Date to the benefit of a provision in a Double Taxation
Treaty giving exemption from withholding or deduction in respect of
taxation on interest by a Borrower and which does not carry on business
in the jurisdiction of incorporation of that Borrower through a
permanent establishment with which the indebtedness under the Finance
Documents in respect of which the interest is paid is effectively
connected.
"U.K."
means the United Kingdom of Great Britain and Northern Ireland.
"US BORROWER"
means Xxxxx Inc. or a Borrower that is incorporated or organised under
the laws of any of the United States of America or the District of
Columbia.
"U.S. FACILITY"
means the US$150,000,000 11.22% Senior Secured Notes due 2001 issued by
Xxxxx Inc.
YEN"
means the lawful currency for the time being of Japan.
1.2 CONSTRUCTION
(a) In this Agreement, unless the contrary intention appears, a reference
to:
(i) "ASSETS" includes properties, revenues and rights of every
description;
an "AUTHORISATION" includes an authorisation, consent,
approval, resolution, licence, exemption, filing, registration
and notarisation;
a "MONTH" is a reference to a period starting on one day in a
calendar month and ending on the numerically corresponding day
in the next calendar month, except that:
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(A) if there is no numerically corresponding day in the
month in which that period ends, that period shall
end on the last Business Day in that calendar month;
and
(B) if a Term for a Loan commences on the last Business
Day of a calendar month, that Term shall end on the
last Business Day in the month in which it is to end;
a "REGULATION" includes any regulation, rule, official
directive, request or guideline (whether or not having the
force of law, but if not having the force of law, only if
compliance with the regulation is in accordance with
the general practice of persons to whom the regulation is
intended to apply) of any governmental body, agency,
department or regulatory, self-regulating or other authority
or organisation;
(ii) a provision of a law is a reference to that provision
as amended or re-enacted;
(iii) a Clause or a Schedule is a reference to a clause of
or a schedule to this Agreement;
(iv) a person includes its successors and assigns;
(v) a Finance Document or another document (other than
the U.S. Facility) is a reference to that Finance
Document or that other document as amended, novated
or supplemented;
(vi) a time of day is a reference to London time; and
(vii) a Bank is a reference to a Bank and any of its
successors and permitted assigns and any other bank
or financial institution which becomes a Bank whether
by way of Novation Certificate or otherwise.
(b) NatWest Capital Markets Limited in its capacity as an Arranger
is a Party as agent for National Westminster Bank Plc a member
of IMRO. All references to NatWest Capital Markets Limited as
an Arranger include National Westminster Bank Plc unless the
context otherwise requires. This paragraph does not affect the
rights or obligations of National Westminster Bank Plc under
this Agreement.
(c) Unless the contrary intention appears, a term used in any
other Finance Document or in any notice given under or in
connection with any Finance
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Document has the same meaning in that Finance Document or
notice as in this Agreement.
(d) The index to and the headings in this Agreement are for
convenience only and are to be ignored in construing this
Agreement.
2. THE FACILITY
2.1 FACILITY
Subject to the terms of this Agreement, the Xxxxx xxxxx to the
Borrowers a commited revolving multicurrency advance facility under
which the Banks shall, when requested by a Borrower, make to that
Borrower Loans up to an aggregate Original Dollar Amount not exceeding,
at any time, the Total Commitments at that time. No Bank is obliged to
lend more than its Commitment.
2.2 NUMBER OF REQUESTS AND DRAWDOWNS
No more than one Loan with a Term of 7 days and no more than 30 other
Loans may be outstanding at any time. Subject to the above, up to 10
Requests may be delivered on the same day and up to 10 Loans may be
requested with the same Drawdown Date, whether or not the currencies
and Terms requested are similar.
2.3 NATURE OF A FINANCE PARTY'S RIGHTS AND OBLIGATIONS
(a) The obligations of a Finance Party under the Finance Documents are
several. Failure of a Finance Party to carry out those obligations does
not relieve any other Party of its obligations under the Finance
Documents. No Finance Party is responsible for the obligations of any
other Finance Party under the Finance Documents.
(b) The rights of a Finance Party under the Finance Documents are divided
rights. A Finance Party may, except as otherwise stated in the Finance
Documents, separately enforce those rights.
3 PURPOSE
(a) Each Borrower shall apply each Loan towards its general corporate
purposes, including refinancing the Existing Facilities.
(b) Without affecting the obligations of any Borrower in any way, no
Finance Party is bound to monitor or verify the application of any
Loan.
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4. CONDITIONS PRECEDENT
4.1 DOCUMENTARY CONDITIONS PRECEDENT
The obligations of each Finance Party to a Borrower under this
Agreement are subject to the condition precedent that the Agent has
notified the Company and the Banks that it has received all of the
documents set out in Part I of Schedule 2 relevant to that Borrower and
the Company in form and substance satisfactory to the Agent. The Agent
shall use all reasonable endeavours to give that notification promptly
after receiving all of those documents.
4.2 CONDITION PRECEDENT TO THE FIRST LOAN
The obligations of each Bank to participate in the first Loan are
subject to the further condition precedent that the Agent has notified
the Banks that it has received confirmation from the Company that the
proceeds of the first Loan will be utilised in repaying or prepaying
the Existng Facilities in whole and that all commitments under the
Existing Facilities have been, or will be, cancelled in full on or
before the first Drawdown Date.
4.3 FURTHER CONDITIONS PRECEDENT
The obligations of each Bank to participate in a Loan are subject to
the further conditions precedent that on both the date of the Request
and the Drawdown Date for that Loan:
(a) the representations and warranties in Clause 16
(Representations and warranties) to be repeated on those dates
in accordance with Clause 16.14 (Times for making
representations and warranties) are correct (other than those
which have been expressly waived in accordance with this
Agreement) and will be correct immediately after the Loan is
made;
(b) (in the case of any Loan other than a Rollover Loan) no
Default is outstanding or will result from the making of the
Loan (which has not been waived in accordance with this
Agreement); and
(c) the borrowing of the Loan will not cause the aggregate of:
(i) the Original Dollar Amount of all outstanding Loans
(but, for the purpose of this sub-paragraph (c) only,
disregarding any outstanding Loan which falls to be
repaid on or before, and including any Loan which is
scheduled to be made prior to or on, the Drawdown
Date of that Loan); and
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(ii) the Original Dollar Amount of that Loan,
to exceed the Total Commitments at that time.
if an Event of Default is outstanding (which has not been waived in
accordance with this Agreement) or will result from the making of a
rollover Loan, the Borrower must not select a Term of more than one
month.
5. DRAWDOWN
5.1 RECEIPT OF REQUESTS
A Borrower may utilise the Facility if the Agent receives, not later
than the Prescribed Time, a duly completed Request.
5.2 COMPLETION OF REQUESTS
A Request will not be regarded as having been duly completed unless:
(a) the Drawdown Date is a Business Day;
(b) only one currency is specified and the principal amount of the
Loan is for an amount equal to the aggregate of the then
undrawn Commitments or, if less, is:
(i) if the currency is Dollars, a minimum of US$5,000,000
and an integral multiple of US$ 1,000,000; or
(ii) if the currency is Sterling, a minimum of
(pound)5,000,000 and an integral multiple of
(pound)1,000,000; or
(iii) if the currency is an Optional Currency other than
Sterling, a minimum and integral multiple of the
amounts agreed between the relevant Borrower and the
Agent before the delivery of that Request or failing
agreement, the equivalent in the Optional Currency of
a minimum amount of US$2,000,000 and an integral
multiple of US$1,000,000 calculated at the Agent's
Spot Rate of Exchange at the Prescribed Time referred
to in Clause 5.1 (Receipt of Requests) rounded on
such basis as may be reasonably determined by the
Agent and notified to that Borrower; or
(iv) such other amount as the Agent and the relevant
Borrower may agree;
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(c) only one Term is specified which:
(i) does not overrun the Final Repayment Date; and
(ii) is a period of an approved duration or of an optional
duration;
and
(d) the payment instructions comply with Clause 10 (Payments).
In this Agreement:
"APPROVED DURATION" means a period of 7 days or 1, 2, 3 or 6 months;
and
"OPTIONAL DURATION" means a period of 12 months or such other period as
the Borrower and the Banks may agree,
5.3 AMOUNT OF EACH BANK'S PARTICIPATION IN THE LOAN
The amount of a Bank's participation in the Loan will be the proportion
of the Loan which its Commitment bears to the Total Commitments on the
date of receipt of the relevant Request.
5.4 NOTIFICATION OF THE BANKS
The Agent shall, not later than the Prescribed Time, notify each Bank
of the details of the requested Loan and the amount of its
participation in the Loan.
5.5 SELECTION OF AN OPTIONAL DURATION
(a) If a Borrower selects a Term of an optional duration, it may also
select in the relevant Request a Term of an approved duration to apply
if the selection of a Term of in optional duration becomes ineffective
in accordance with paragraph (b) below.
(b) If:
(i) a Borrower requests a Term of an optional duration; and
(ii) the Agent receives notice from a Bank not later than the
Prescribed Time that it does not agree to the request,
the Term for the proposed Loan shall be of the alternative approved
duration specified in the relevant Request or, in the absence of any
alternative selection, 6 months.
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(c) If the Agent receives a notice from a Bank under paragraph (b) above,
it shall notify the relevant Borrower and the Banks of the new Term for
the proposed Loan by not later than the Prescribed Time.
5.6 PAYMENT OF PROCEEDS
Subject to the terms of this Agreement, each Bank shall make its
participation in the Loan available to the Agent for the relevant
Borrower on the relevant Drawdown Date.
6. REPAYMENT
Each Borrower shall repay each Loan made to it in full on its Repayment
Date to the Agent for the Banks. Amounts repaid may, in accordance with
the terms of this Agreement, be reborrowed.
7. PREPAYMENT AND CANCELLATION
7.1 AUTOMATIC CANCELLATION OF THE TOTAL COMMITMENTS
The Commitment of each Bank shall be automatically cancelled at close
of business on the Final Repayment Date.
7.2 VOLUNTARY CANCELLATION
The Company may, by giving not less than 14 days' prior notice to the
Agent, cancel the unutilised portion of the Total Commitments in whole
or in part (but, if in part, in minimum amounts of US$20,000,000 and
integral multiples of US$10,000,000 thereafter) without premium or
penalty. Any cancellation in part shall be applied against the
Commitment of each Bank pro rata.
7.3 VOLUNTARY PREPAYMENT
A Borrower may, by giving not less than 14 days' prior notice to the
Agent, prepay any Loan, or any part of it which is of a minimum amount
or a higher integral multiple of the amounts in the relevant currency
specified in Clause 5.2(b) (Completion of Requests).
7.4 MANDATORY PREPAYMENT
If any single person, or group of persons acting in concert (as defined
in the City Code on Take-Overs and Mergers), acquires control (as
defined in Section 416 of the Income and Corporation Taxes Act 1988) of
the Company, the Company shall notify the Agent promptly after becoming
aware of the relevant event. The Agent
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(on behalf of and after consultation with the Banks) shall negotiate
with the Company with a view to agreeing terms and conditions
acceptable to the Banks for continuing the Facility. Any terms and
conditions agreed in writing by the Agent (on behalf of and with the
consent of all the Banks) and the Company within 30 days of the
occurrence of the event in question shall take effect in accordance
with its terms. If no such agreement is reached within that 30 day
period, then, if so instructed by the Majority Banks at any time
thereafter, the Agent shall by notice to the Company:
(a) cancel the Total Commitments; and/or
(b) demand that all or part of the Loans, together with accrued
interest and all other amounts accrued under this Agreement be
immediately due and payable, whereupon they shall become
immediately due and payable.
7.5 ADDITIONAL RIGHT OF PREPAYMENT AND CANCELLATION
If any Borrower is required to pay any amount to a Bank under Clause 11
(Taxes) or Clause 13 (Increased Costs), the Company may, whilst the
circumstances giving rise to the requirement continue, serve a notice
of prepayment and cancellation on that Bank through the Agent. In that
event:
(a) each Borrower shall prepay that Bank's participation in all
the Loans made to that Borrower on the date falling 5 Business
Days after the date of service of the notice together with all
other amounts payable by it to that Bank under this Agreement;
and
(b) the Bank's Commitment shall be cancelled on the date of
service of the notice.
7.6 MITIGATION
If any circumstances arise which result, or would on the giving of
notice (or the like) result, in a Borrower having to make a payment to
or for the account of a Bank under Clause 11 (Taxes), 13 (Increased
costs) or 14 (Illegality), then, without in any way limiting, reducing
or otherwise qualifying any of the obligations of any Borrower under
those Clauses, the Bank shall promptly notify that Borrower and
negotiate in good faith and shall take such steps as are reasonably
open to it and as are acceptable to that Borrower to mitigate or remove
those circumstances, including (without limitation) change of its
Facility Office, restructuring of its participation in the Facility or
the transfer of its obligations to an Affiliate or other person
acceptable to that Borrower. Nothing in this Clause requires a Bank to
take any action which, in its sole opinion, might be in any way
prejudicial to it or
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conflict with its banking policies or to disclose any information
regarding its or its Affiliates' tax affairs.
7.7 MISCELLANEOUS PROVISIONS
(a) Any notice of prepayment and/or cancellation under this Agreement is
irrevocable. The Agent shall notify the Banks promptly of receipt of
any such notice.
(b) All prepayments under this Agreement shall be made together with
accrued interest on the amount prepaid.
(c) No prepayment or cancellation is permitted except in accordance with
the express terms of this Agreement.
(d) Without prejudice to the right of a Borrower, subject to the term of
this Agreement, to re-borrow Loans repaid in accordance with Clause 6
(Repayment) or prepaid in accordance with Clause 7.3 (Voluntary
prepayment), no amounts prepaid under this Agreement (other than
pursuant to Clause 7.3 (Voluntary prepayment)) may be reborrowed. No
amount of the Total Commitments cancelled under this Agreement may
subsequently be reinstated.
8. INTEREST
8.1 INTEREST RATE
The rate of interest on each Loan for its Term is the rate per annum
determined by the Agent to be the aggregate of the applicable:
(a) Margin;
(b) LIBOR; and
(c) in the case of Loans denominated in Sterling, MLA Cost.
8.2 DUE DATES
Except as otherwise provided in this Agreement, accrued interest on
each Loan is payable by the relevant Borrower on its Repayment Date and
also, in the case of a Loan with a Term longer than 6 months, on the
dates falling at 6 monthly intervals after its Drawdown Date.
8.3 DEFAULT INTEREST
(a) If a Borrower fails to pay any amount payable by it under this
Agreement, it shall forthwith on demand by the Agent pay interest on
the overdue amount from the
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due date up to the date of actual payment, as well after as before
judgment, at a rate (the "DEFAULT RATE") determined by the Agent to be
1 per cent. per annum above the rate which would have been payable if
the overdue amount had, during the period of non-payment, constituted a
Loan in the currency of the overdue amount for such successive Terms of
such duration as the Agent may determine (each a "DESIGNATED TERM").
(b) The default rate will be determined on each Business Day or the first
day of, or two Business Days before the first day of, the relevant
Designated Term, as appropriate.
(c) If the Agent determines that deposits in the currency of the overdue
amount are not at the relevant time being made available by the
Reference Banks to leading banks in the London interbank market, the
default rate will be determined by reference to the cost of funds to
the Agent from whatever sources it reasonably selects.
(d) Default interest will be compounded at the end of each Designated
Term.
8.4 NOTIFICATION OF RATES OF INTEREST
The Agent shall promptly notify each relevant Party of the
determination of a rate of interest under this Agreement.
9. OPTIONAL CURRENCIES
9.1 CHANGE OF CURRENCY
If, before 9.30 a.m. on the Rate Fixing Date of a Loan to be
denominated in an Optional Currency, the Agent receives notice from a
Bank that:
(a) it is impracticable for the Bank to fund its participation in
the Loan for its Term in that Optional Currency in the ordinary course
of business in the London interbank market; or
(b) the use of the proposed Optional Currency might contravene any
law or regulation,
then:
(i) the Agent shall promptly and in any event before 10.30 a.m. on
that Rate Fixing Date notify the relevant Borrower and the
Banks;
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(ii) if the Agent receives notice from the relevant Borrower
specifying the Loan should not be made by 11.00 a.m. on the
relevant Rate Fixing Date, the Loan shall not be made;
(iii) if the Agent does not receive any notice under sub-paragraph
(ii) above, the Loan will be denominated instead in Dollars
(unless the Agent receives notice under sub-paragraph (iv)
below) in an amount equal to its Original Dollar Amount, and
there shall be substituted in the definition of "LIBOR"
(insofar as it applies to that Loan in Dollars) in Clause 1.1
(Definitions) the times "l.00 p.m." and "2.00 p.m." for,
respectively, the times "11.00 a.m." and "12.00 noon"; and
(iv) if the Agent receives notice from the relevant Borrower
specifying the Loan shall be made in Sterling by 11.00 a.m. on
the relevant Rate Fixing Date, the Loan shall be made in
Sterling.
9.2 NOTIFICATION OF RATES AND AMOUNTS
The Agent shall notify each relevant Party of any applicable Agent's
Spot Rate of Exchange or Original Dollar Amount promptly after it is
ascertained.
9.3 ECU
(a) If, at any time:-
(i) the ECU ceases to be utilised as the basic accounting unit of
the European Union;
(ii) the ECU ceases to be used in the European Monetary System;
(iii) it becomes illegal, impossible or impracticable for payments
to be made under this Agreement in ECU; or
(iv) the Agent determines that any event mentioned in sub-paragraph
(i) to (iii) above is likely to occur before the Final
Repayment Date.
then:-
(1) the Agent shall notify the Company and the Banks promptly upon
becoming aware of the event;
(2) the Banks shall not be obliged to make any Loans denominated
in ECU on or after the date of that notification; and
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(3) subsequently each amount which would otherwise have been
payable by the relevant Borrower under this Agreement in ECU
shall be paid by that Borrower in Dollars or any component
currency of the ECU or any other currency acceptable to all of
the Banks (the "REPLACEMENT CURRENCY") and the amount of
replacement currency so payable will be determined in
accordance with paragraph (b) below.
(b) (i) The equivalent in replacement currency of the Loan in ECU for
the purposes of paragraph (a) above will be calculated by the
Agent as the sum of the equivalent in replacement currency of
the components of the ECU;
(ii) the components of the ECU for this purpose will be the
currency amounts that were components of the ECU when the ECU
was most recently used in the European Monetary System, except
that, if the ECU is being used for the settlement of
transactions by public institutions of or within the European
Community, or was so used after its most recent use in the
European Monetary System, the components will be:-
(1) the currency amounts that are components of the ECU
as so used on the day the calculation of the amount
of replacement currency is to be made (the "DAY OF
VALUATION"); or
(2) the currency amounts that were components of the ECU
when it was most recently so used, as appropriate;
(iii) the rates to be used by the Agent for the above purposes will
be its rates for the purchase in the London foreign exchange
market of replacement currency with each of the components at
or about 11.00 a.rn. on the day of valuation for value on the
day the relevant payment in replacement currency is due; and
(iv) the day of valuation will be the day determined by the Agent
for the purposes of calculating the equivalent in replacement
currency of any amount in ECU and, unless the Agent considers
it inappropriate, will be the day two Business Days before the
relevant payment in replacement currency is due.
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26
10. PAYMENTS
10.1 PLACE
All payments by a Borrower or a Bank under this Agreement shall be made
to the Agent or to its account at such office or bank as it may notify
to that Borrower or Bank for this purpose.
10.2 FUNDS
Payments under this Agreement to the Agent shall be made for value on
the due date at such times and in such funds as the Agent may specify
to the Party concerned as being customary at the time for the
settlement of transactions in the relevant currency in the place for
payment.
10.3 DISTRIBUTION
(a) Each payment received by the Agent under this Agreement for another
Party shall, subject to paragraphs (b) and (c) below, be made available
by the Agent to that Party by payment (on the date and in the currency
and funds of receipt) to its account with such bank in the principal
financial centre of the country of the relevant currency (or, in the
case of ECU, a principal financial centre selected by the relevant
Party in which payments in ECU may be cleared) as it may notify to the
Agent for this purpose by not less than 1 Business Day's prior notice.
(b) The Agent shall apply any amount received by it for a Borrower in any
currency (the "FIRST CURRENCY") in or towards:
(i) payment (on the date and in the currency and funds of receipt)
of any amount in the first currency due from that Borrower
under this Agreement; or
(ii) if that Borrower and the Agent so agree, the purchase of any
amount of any other currency (the "SECOND CURRENCY") to be
applied in payment of any amount in the second currency due
from that Borrower under this Agreement; the resultant amount
shall be deemed to be the amount received by the Agent after
allowing for costs of conversion.
Nothing in this Clause 10.3(b) shall be effective to create a charge.
(c) Where a sum is to be paid under this Agreement to the Agent for the
account of another Party, the Agent is not obliged to pay that sum to
that Party until it has established that it has actually received that
sum. The Agent may, however, assume that the sum has been paid to it in
accordance with this Agreement and, in
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27
reliance on that assumption, make available to that Party a
corresponding amount. If the sum has not been made available but the
Agent has paid a corresponding amount to another Party, that Party
shall forthwith on demand refund the corresponding amount to the Agent
together with interest on that amount from the date of payment to the
date of receipt, calculated at a rate determined by the Agent to
reflect its cost of funds.
10.4 CURRENCY
(a) A repayment or prepayment of a Loan is payable in the currency in which
the Loan is denominated.
(b) Interest is payable in the currency in which the relevant amount in
respect of which it is payable is denominated.
(c) Amounts payable in respect of costs, expenses, taxes and the like are
payable in the currency in which they are incurred.
(d) Any other amount payable under this Agreement is, except as otherwise
provided in this Agreement, payable in Dollars.
10.5 SET-OFF AND COUNTERCLAIM
All payments made by a Borrower under this Agreernent shall be made
without set-off or counterclaim.
10.6 NON-BUSINESS DAYS
(a) If a payment under this Agreement is due on a day which is not a
Business Day, the due date for that payment shall instead be the next
Business Day in the same calendar month (if there is one) or the
preceding Business Day (if there is not).
(b) During any extension of the due date for payment of any principal under
this Agreement interest is payable on the principal at the rate payable
on the original due date.
10.7 PARTIAL PAYMENTS
(a) If the Agent receives a payment insufficient to discharge all the
amounts then due and payable by a Borrower under this Agreement, the
Agent shall apply that payment towards the obligations of that Borrower
under this Agreement in the following order:
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(i) FIRST, in or towards payment of any unpaid costs and
reasonable expenses of the Agent under this Agreement;
(ii) SECONDLY, in or towards payment pro rata of any accrued fees
due but unpaid by that Borrower under Clause 20.2 (Commitment
fee);
(iii) THIRDLY, in or towards payment pro rata of any accrued
interest due but unpaid by that Borrower under this Agreement;
(iv) FOURTHLY, in or towards payment pro rata of any principal due
but unpaid by that Borrower under this Agreement; and
(v) FIFTHLY, in or towards payment pro rata of any other sum due
but unpaid by that Borrower under this Agreement.
(b) The Agent shall, if so directed by all the Banks, vary the order set
out in sub-paragraphs (a)(ii) to (v) above.
(c) Paragraphs (a) and (b) above shall override any appropriation made by a
Borrower.
11. TAXES
11.1 GROSS-UP
Subject to Clause 11.5 (Exceptions to Gross-up), all payments by a
Borrower under the Finance Documents shall be made without any
deductions and free and clear of and without deduction for or on
account of any taxes, except to the extent that the Borrower is
required by law to make payment subject to any taxes. Subject to Clause
11.5 (Exceptions to Gross-up), if any tax or amounts in respect of tax
must be deducted, or any other deductions must be made, from any
amounts payable or paid by a Borrower, or paid or payable by the Agent
to a Bank, under the Finance Documents, the Borrower shall pay such
additional amounts as may be necessary to ensure that the relevant Bank
receives a net amount equal to the full amount which it would have
received had payment not been made subject to tax or any such other
deduction. This Clause shall only apply to taxes imposed, levied or
assessed by or on behalf of the United Kingdom or the jurisdiction of
incorporation of a Borrower or any other jurisdiction from or through
which a Borrower may choose to make any payment under this Agreement
(or any federation or organisation of which the United Kingdom or any
such other jurisdiction is a member) or any political sub-division or
authority of any of the foregoing.
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29
11.2 TAX RECEIPTS
All taxes required by law to be deducted or withheld by a Borrower from
any amounts paid or payable under this Agreement shall be paid by that
Borrower when due and that Borrower shall, within 30 days of the
payment being made, deliver to the Agent for the relevant Bank evidence
satisfactory to that Bank (including any relevant tax receipts) that
the payment has been duly remitted to the appropriate authority.
11.3 US TAX FORMS
(a) Each Bank (other than any that is organised under the federal laws of,
or the laws of any of, the United States of America or the District of
Columbia) shall, subject to paragraph (c) below, deliver to each US
Borrower and the Agent as soon as practicable and in any case within 30
days of the later of its Participation Date and the date on which the
US Borrower becomes a Party (and prior to the expiry of any such form
previously provided), the appropriate number of copies of duly executed
US Internal Revenue Service Form 1001 or 4224, whichever is applicable
(in each case together with a Form W-8, if required) or any successor
to such relevant form allowing the US Borrower to make payments to that
Bank without deduction or withholding in respect of taxes in the United
States of America.
(b) Each Bank that is organised under the federal laws of, or the laws of
any of, the United States of America of the District of Columbia shall,
subject to paragraph (c) below, deliver to each US Borrower and the
Agent as soon as practicable and in any case within 30 days of its
Participation Date (and prior to the expiry of any such form previously
provided) the appropriate number of copies of duly executed US Internal
Revenue Service Form W-9 or any successor to such form.
(c) No Bank is obliged to deliver any form(s) under paragraph (a) or (b)
above to the extent that the Bank is unable to do so, or it would be
inappropriate for it to do so, as a result of the introduction of or
any change in, or in the interpretation or application by any relevant
authority of, any law or regulation or any practice or concession of
the US Internal Revenue Service after the date of this Agreement.
11.4 OTHER TAX FORMS
(a) Each Bank shall, so far as it is able, promptly (in respect of the
Company) and (in respect of any Additional Borrower) promptly on
request by the relevant Borrower, provide any applicable information or
documentation to the appropriate tax authority in the jurisdiction of
incorporation of that Borrower and (if applicable) the jurisdiction in
which the Facility Office of that Bank is situated with a view to
ensuring that, by virtue of the application of any Double Taxation
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30
Treaty or otherwise, that Borrower is enabled to make payments to that
Bank without deduction or withholding in respect of taxes in the
jurisdiction of incorporation of that Borrower.
(b) Each Bank shall, so far as it is able, promptly complete and file with
the relevant tax authorities all applicable forms required by that
Borrower and shall use reasonable endeavours to procure that the
applicable forms are lodged with the appropriate tax authority in the
jurisdiction of incorporation of that Borrower and (if applicable) the
jurisdiction in which the Facility Office of that Bank is situated as
soon as reasonably practicable.
11.5 EXCEPTIONS TO GROSS-UP
(a) If, otherwise than as a result of the introduction of, change in, or
general change in the official interpretation, administration or
application of, any law or regulation or any practice or concession of
the appropriate tax authority in the jurisdiction of incorporation of a
Borrower or the relevant Double Taxation Treaty on or after its
Participation Date, a Bank is not or ceases to be a Qualifying Lender,
that Borrower is not liable to pay to that Bank under Clause 11.1
(Gross-up) any amount in respect of taxes levied or imposed by the
jurisdiction of incorporation of that Borrower or any taxing authority
thereof or therein in excess of the amount it would have been obliged
to pay if that Bank had not ceased to be a Qualifying Lender.
(b) For a Treaty Bank Clause 11.1 (Gross-up) shall not apply to the extent
that deduction or withholding on account of the relevant taxes could
have been avoided by obtaining the appropriate direction or regulation
from the appropriate tax authority in the jurisdiction of incorporation
of a Borrower to make a payment gross prior to the relevant payment,
and the failure to obtain such a direction results solely from the
relevant Bank failing to comply with its obligations under Clause 11.4
(Other tax forms).
(c) If a Bank fails to perform its obligations under Clause 11.3 (U.S. Tax
forms), a US Borrower is not liable to pay that Bank under Clause 11.1
(Gross-up) any amount in respect of taxes levied or imposed by the
United States of America or any taxing authority thereof or therein in
excess of the amount it would have been obliged to pay if that Bank had
performed its obligations under Clause 11.3 (U.S. Tax forms).
11.6 WARRANTY BY EACH BANK
Each Bank warrants to the Company that:
(a) it is a Qualifying Lender;
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(b) it is in compliance with its obligations under Clause 11.4
(Other tax forms); and
(c) for a Loan to a US Borrower, it is in compliance with its
obligations under Clause 11.3 (US tax forms).
Those warranties will be deemed to be repeated by each Bank from its
Participation Date and on the due date of each payment of interest to
that Bank on a Loan, unless that Bank is not able to make them on that
date as a result of the introduction of, change in, or general change
in the official interpretation, administration or application of, any
relevant law or any relevant practice or concession of the appropriate
tax authority in the jurisdiction of incorporation of a Borrower the
relevant Double Taxation Treaty after the date of this Agreement. If at
any time after the date of this Agreement any Bank is aware that it is,
or will become, unable to make those warranties (for whatever reason),
it shall promptly notify the Company.
11.7 REFUND OF TAX CREDITS
If a Borrower makes a payment under Clause 11.1 (a "TAX PAYMENT") in
respect of a payment to the Agent or a Bank under this Agreement and
the Agent or Bank determines in its discretion that it has obtained a
refund of tax or obtained and used a credit against tax on its overall
net income (a "TAX CREDIT") which the Agent or Bank is able to identify
as attributable to that Tax Payment, then the Agent or Bank shall
reimburse that Borrower such amount as the Agent or Bank determines to
be such proportion of that Tax Credit as will leave the Agent or Bank
(after that reimbursement) in no better or worse position in respect of
its worldwide tax liabilities than it would have been in if no Tax
Payment had been required. That Bank or the Agent shall not be obliged
to disclose any information regarding its tax affairs and computations.
12. MARKET DISRUPTION
(a) Where paragraph (c) of the definition of LIBOR applies, if a Reference
Bank does not supply an offered rate by 12.30 p.m. (or, where Clause
9.1 (Change of Currency) applies, 2.30 p.m.) on a Rate Fixing Date, the
applicable LIBOR shall, subject to paragraph (b) below, be determined
on the basis of the quotations of the remaining Reference Banks.
(b) If, in relation to any proposed Loan:
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(i) where paragraph (c) of the definition of LIBOR applies, no, or
only one, Reference Bank supplies a rate for the purposes of
determining the applicable LIBOR; or
(ii) the Agent receives notification from Banks whose
participations in a Loan exceed 50 per cent. of that Loan
that, in their opinion:
(A) matching deposits are not reasonably likely to be
available to them in the London interbank market in
the ordinary course of business to fund their
participations in that Loan for the relevant Term; or
(B) the cost to them of matching deposits in the London
interbank market would be in excess of the relevant
LIBOR.
the Agent shall promptly notify the relevant Borrower and the relevant
Banks of the fact and that this Clause 12 is in operation.
(c) After any notification under paragraph (b) above
(i) unless the relevant Borrower notifies the Agent before close
of business in London on the day it receives notification
under paragraph (b) above that it no longer wishes the Loan to
be made (in which case the Loan shall not be made) the Loan
shall be made;
(ii) within 5 Business Days of receipt of the notification, that
Borrower, the Company and the Agent shall enter into
negotiations for a period of not more than 30 days with a view
to agreeing a substitute basis for determining the rate of
interest and/or funding applicable to that Loan and any future
Loan to be denominated in the currency of the affected Loan;
(iii) any substitute basis agreed under sub-paragraph (ii) above
shall be, with the prior consent of all the Banks, binding on
all the Parties;
(iv) if no alternative basis is agreed under sub-paragraph
(ii) above, each Bank (through the Agent) shall certify on or
before the last day of the Term to which the notification
relates an alternative basis for maintaining its participation
in that Loan;
(v) any alternative basis referred to in sub-paragraph (iv) above
may include an alternative method of fixing the interest rate,
alternative Terms or alternative currencies but it must
reflect the cost to the Bank of funding its participation in
the Loan from whatever sources it may reasonably select plus
the Margin plus any applicable MLA Cost; and
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33
(vi) each alternative basis so certified shall be binding on the
relevant Borrower and the certifying Bank and treated as part
of this Agreement.
13. INCREASED COSTS
13.1 INCREASED COSTS
(a) Subject to Clause 13.2 (Exceptions), the Company shall forthwith on
demand by a Finance Party pay that Finance Party the amount of any
increased cost incurred by it or its Holding Company as a result of the
introduction of or any change in or change in the interpretation or
application of any law or regulation (including any relating to
taxation or reserve asset, special deposit, cash ratio, liquidity or
capital adequacy requirements or any other form of banking or monetary
control).
(b) In this Agreement "INCREASED COST" means:
(i) an additional cost incurred by a Finance Party or its Holding
Company as a result of the Finance Party having entered into,
or performing, maintaining or funding its obligations under,
this Agreement;
(ii) that portion of an additional cost incurred by a Finance Party
or its Holding Company in the Finance Party making, funding or
maintaining all or any advances comprised in a class of
advances formed by or including the participations in the
Loans made or to be made under this Agreement as is
attributable to it making, funding or maintaining those
participations; or
(iii) a reduction in any amount payable to a Finance Party or the
effective return to a Finance Party or its Holding Company
under this Agreement or on its capital; or
(iv) the amount of any payment made by a Finance Party or its
Holding Company, or the amount of interest or other return
foregone by a Finance Party or its Holding Company, calculated
by reference to any amount received or receivable by a Finance
Party from any other Party under this Agreement.
(c) When calculating an increased cost, the Finance Party
concerned may allocate or spread costs, liabilities and losses
to or across its liabilities or assets, or any class of
liabilities or assets, and on such basis, as it reasonably
considers fair and appropriate. At the same time as it makes a
demand under (a) above, the Finance Party shall supply a
certificate of its increased costs containing reasonable
details of the amount and basis of its claim. No
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34
Finance Party is under an obligation to disclose information
which it reasonably considers to be confidential.
13.2 EXCEPTIONS
Clause 13.1 (Increased costs) does not apply to any increased cost:
(a) compensated for by the payment of the MLA Cost;
(b) compensated for by the operation of Clause 11 (Taxes) or which
would be so compensated but for Clause 11.5 (Exceptions to
Gross-up);
(c) on account of tax on the overall net income of a Bank (or the
overall net income of a division or branch of the Bank)
imposed in the jurisdiction in which its principal office or
Facility Office is situate; or
(d) which results from the implementation, as contemplated as at
the signing of this Agreement, of the matters set out in the
July 1988 report of the Basle Committee on Banking Regulations
and Supervisory Practices entitled "International Convergence
of Capital Measurement and Capital Standards", the Directive
of the Council of the European Communities on a Solvency Ratio
for Credit Institutions (89/647/EEC of 18th December, 1989)
and/or the Directive of the Council of the European
Communities on Own Funds of Credit Institutions (89/299/EEC of
l7th April, 1989) in each case as amended prior to the date of
this Agreement) unless it results from any change in, or in
the interpretation or application of, these matters after the
signing of this Agreement.
13.3 REGULATION D COSTS
Each US Borrower shall, promptly upon demand by any Bank (through the
Agent), pay to that Bank the amount of any Regulation D Costs actually
incurred by that Bank in respect of any Loans made by it to that US
Borrower. Any such demand shall contain reasonable details of the
calculation of the relevant Regulation D Costs.
14. ILLEGALITY
If it becomes unlawful in any jurisdiction for a Bank to give effect to
any of its obligations as contemplated by this Agreement or to fund or
maintain its participation in any Loan, then:
(a) the Bank may notify the Company through the Agent accordingly;
and
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35
(b) (i) each Borrower shall forthwith prepay that Bank's
participation in all the Loans to that Borrower,
together with all other amounts payable by it to that
Bank under this Agreement; and
(ii) the Bank's Commitment shall be cancelled.
15. GUARANTEE
15.1 GUARANTEE
The Company irrevocably and unconditionally:
(a) as principal obligor, guarantees to each Finance Party the due
and punctual payment within 3 Business Days of demand of any
and every sum or sums of money which any Borrower (other than
the Company) under the Finance Documents shall at any time be
liable to pay to each Finance Party and which have not been
paid at the time such demand is made; and
(b) indemnifies each Finance Party within 3 Business Days of
demand against any loss or liability suffered by it if any
obligation guaranteed by the Company is or becomes
unenforceable, invalid or illegal the amount of such loss or
liability being the amount which the Party suffering the same
would otherwise have been entitled to recover from the Company
under this Clause 15 (Guarantee).
15.2 CONTINUING GUARANTEE
This guarantee is a continuing guarantee and will extend to the
ultimate balance of all sums payable by the Borrowers under the Finance
Documents, regardless of any intermediate payment or discharge in whole
or in part.
15.3 REINSTATEMENT
(a) Where any discharge (whether in respect of the obligations of any
Borrower or any security for those obligations or otherwise) is made in
whole or in part or any arrangement is made on the faith of any
payment, security or other disposition which is avoided or must be
restored on insolvency, liquidation or otherwise without limitation,
the liability of the Company under this Clause 15 (Guarantee) shall
continue as if the discharge or arrangement had not occurred.
(b) Each Finance Party may concede or compromise any claim that any
payment, security or other disposition is liable to avoidance or
restoration.
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15.4 WAIVER OF DEFENCES
The obligations of the Company under this Clause 15 (Guarantee) will
not be affected by any act, omission, matter or thing which, but for
this provision, would reduce, release or prejudice any of its
obligations under this Clause 15 (Guarantee) or prejudice or diminish
those obligations in whole or in part, including (whether or not known
to it or any Finance Party):
(a) any time or waiver granted to, or composition with, any
Borrower or other person;
(b) the taking, variation, compromise, exchange, renewal or
release of, or refusal or neglect to perfect, take up or
enforce, any rights against, or security over assets of, any
Borrower or other person or any non-presentation or
non-observance of any formality or other requirement of any
security;
(c) any incapacity or lack of powers, authority or legal
personality of or dissolution or change in the members or
status of a Borrower or any other person;
(d) any variation (however fundamental) or replacement of a
Finance Document or any other document or security so that
references to that Finance Document in this Clause 15
(Guarantee) shall include each variation or replacement;
(e) any unenforceability, illegality or invalidity of any
obligation of any person under any Finance Document or any
other document or security, to the intent that the Company's
obligations under this Clause 15 (Guarantee) shall remain in
full force and its guarantee be construed accordingly, as if
there were no unenforceability, illegality or invalidity;
(f) any postponement, discharge, reduction, non-provability or
other similar circumstances affecting any obligation of any
Borrower under a Finance Document resulting from any
insolvency, liquidation or dissolution proceedings or from any
law, regulation or order so that each such obligation shall
for the purposes of the Company's obligations under this
Clause 15 (Guarantee) be construed as if there were no such
circumstance.
15.5 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
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security or claim payment from any person before claiming from the
Company under this Clause 15 (Guarantee).
15.6 APPROPRIATIONS
Until all amounts which may be or become payable by the Borrowers under
or in connection with the Finance Documents have been irrevocably paid
in full, each finance Party (or any trustee or agent on its behalf)
may:
(a) refrain from applying or enforcing any other moneys, security
or rights held or received by that Finance Party (or any
trustee or agent on its behalf) in respect of those amounts,
or apply and enforce the same in such manner and order as it
sees fit (whether against those amounts or otherwise) and the
Company shall not be entitled to the benefit of the same; and
(b) hold in an interest bearing suspense account any moneys
received from the Company or on account of the Company's
liability under this Clause 15 (Guarantee).
15.7 NON-COMPETITION
Until all amounts which may be or become payable by the Borrowers under
or in connection with the Finance Documents have been irrevocably paid
in full, the Company shall not, after a claim has been made or by
virtue of any payment or performance by it under this Clause 15
(Guarantee):
(a) be subrogated to any rights, security or moneys held, received
or receivable by any Finance Party (or any trustee or agent on
its behalf) or be entitled to any right of contribution or
indemnity in respect of any payment made or moneys received on
account of the Company's liability under this Clause 15
(Guarantee);
(b) claim, rank, prove or vote as a creditor of any Borrower or
its estate in competition with any Finance Party (or any
trustee or agent on its behalf); or
(c) receive, claim or have the benefit of any payment,
distribution or security from or on account of any Borrower,
or exercise any right of set-off as against any Borrower.
The Company shall hold in trust for and forthwith pay or transfer to
the Agent for the Finance Parties any payment or distribution or
benefit of security received by it
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contrary to this Clause 15.7 (Non-competition). Nothing in this Clause
15.7 (Non-competition) shall be effective to create a Security
Interest.
15.8 ADDITIONAL SECURITY
This guarantee is in addition to and is not in any way prejudiced by
any other security now or hereafter held by any Finance Party.
16. REPRESENTATIONS AND WARRANTIES
16.1 REPRESENTATIONS AND WARRANTIES
(a) Each Borrower (other than the Company) makes, in respect of itself, the
representations and warranties set out in this Clause 16
(Representations and warranties) to each Finance Party; and
(b) the Company, in respect of itself and each Material Subsidiary, makes
the representations and warranties set out in this Clause 16
(Representations and warranties) to each Finance Party.
16.2 STATUS
(a) It is a limited liability company, duly incorporated and validly
existing under the laws of the jurisdiction of its incorporation and,
in the case of a US Borrower, is in good standing under such laws; and
(b) it and each of the Material Subsidiaries has the power to own its
assets and carry on its business as it is being conducted.
16.3 POWERS AND AUTHORITY
It has the power to enter into and perform, and has taken all necessary
action to authorise the entry into, performance and delivery of, the
Finance Documents to which it is or will be a party and the
transactions contemplated by those Finance Documents.
16.4 LEGAL VALIDITY
Each Finance Document to which it is or will be a party constitutes, or
when executed in accordance with its terms will constitute, its legal,
valid and binding obligation enforceable in accordance with its terms
(subject to the qualifications as to matters of law only contained in
any legal opinion delivered to the Agent under Schedule 2).
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16.5 NON-CONFLICT
The entry into and performance by it of, and the transactions
contemplated by, the Finance Documents do not and will not:
(a) conflict in any respect with any law or regulation or judicial
or official order to which it is subject; or
(b) conflict with its constitutional documents; or
(c) conflict in any material respect with any material document
which is binding upon it or any of the Material Subsidiaries
or any of its assets or the assets of any of the Material
Subsidiaries.
16.6 NO DEFAULT
(a) No Event of Default is outstanding or will result from the making of
any Loan; and
(b) no other event is outstanding which constitutes a material default
under any document which is binding on it or any of the Material
Subsidiaries or any asset of it or any of the Material Subsidiaries to
an extent or in a manner which would be reasonably likely to have a
material adverse effect on the ability of the Company to perform its
obligations under this Agreement.
16.7 AUTHORISATIONS
All necessary authorisations in connection with the entry into,
performance, validity and enforceability of, and the transactions
contemplated by, the Finance Documents have been obtained or effected
(as appropriate) and are in full force and effect.
16.8 ACCOUNTS
In the case of the Company only, the audited consolidated accounts of
the Group most recently delivered to the Agent (which, at the date of
this Agreement, are the Original Group Accounts):
(a) have been prepared in accordance with accounting principles
and practices generally accepted in the United Kingdom
consistently applied; and
(b) present a true and fair view of the consolidated financial
condition of the Group as at the date to which they were drawn
up.
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16.9 LITIGATION
No litigation, arbitration or administrative proceedings are current
or, to its knowledge, pending or threatened in which it is reasonably
likely that there will be a determination adverse to the Company and
which would, if adversely determined, have a material adverse effect on
the ability of the Company to perform its obligations under this
Agreement.
16.10 CERTAIN US GOVERNMENTAL REGULATION
In the case of a US Borrower only, no US Borrower is subject to
regulation under the United States Public Utility Holding Company Act
of 1935, the United States Federal Power Act or the United States
Investment Company Act of 1940 or to any United States federal or state
statute or regulation limiting its ability to incur indebtedness.
16.11 SECURITIES ACTIVITIES
In the case of a US Borrower only, no US Borrower is engaged
principally, or as one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying any margin
stock (within the meaning of Regulation U of the Board of Governors of
the United States Federal Reserve System).
16.12 SOLVENCY
In the case of a US Borrower only, each US Borrower:
(a) owns assets the fair saleable value of which is greater than
the amount that will be required to pay its probable liability
on its existing debts as they mature;
(b) has capital that is not unreasonably small in relation to its
business as presently conducted or any contemplated or
undertaken transaction; and
(c) does not intend to incur and does not believe that it will
incur debts beyond its ability to pay such debts as they
become due.
16.13 OWNERSHIP OF BORROWERS
(a) Each Borrower (other than the Company) is, on the, date of this
Agreement, a wholly-owned Subsidiary of the Company;
(b) each Borrower (other than the Company) is a Subsidiary of the Company;
and
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41
(c) the Company owns in excess of 50 per cent. of the share capital of
each Borrower (other than the Company).
16.14 TIMES FOR MAKING REPRESENTATIONS AND WARRANTIES
The representations and warranties set out in this Clause 16
(Representations and warranties):
(a) (i) in the case of a Borrower which is a Party on the
date of this Agreement, are made on the date of this
Agreement; and
(ii) in the case of an Additional Borrower, will be deemed
to be made by that Additional Borrower on the date it
executes a Borrower Accession Agreement; and
(b) (other than Clauses 16.6(b) (No default), 16.9 (Litigation)
and 16.13(a) (Ownership of Borrowers) and, in the case of a
Rollover Loan only, Clause 16.6(a) (No default)) are deemed to
be repeated by the Company and a Borrower on the date of each
Request by that Borrower, on each Drawdown Date for a Loan to
that Borrower and, by the Company, on the date of a Borrower
Accession Agreement with reference to the facts and
circumstances then existing.
17. UNDERTAKINGS
17.1 DURATION
The undertakings in this Clause 17 (Undertakings) remain in force from
the date of this Agreement for so long as any amount is or may be
outstanding under this Agreement or any Commitment is in force.
17.2 FINANCIAL INFORMATION
The Company shall supply to the Agent in sufficient copies for all the
Banks:
(a) as soon as the same are available (and in any event within 135
days (or, in the case of Deutsche Xxxxx GmbH, 180 days) of the
end of each of its financial years), its audited consolidated
accounts and the audited financial statements for each
Borrower (other than the Company) for that financial year;
(b) as soon as the same are available (and in any event within 90
days of the end of the first half-year of each of its
financial years) its interim report; and
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42
(c) (i) together with the accounts specified in paragraph (a)
above, a certificate signed by two of its directors
(without personal liability) on its behalf setting
out in reasonable detail computations establishing
compliance with Clause 17.12 (Financial covenants);
and
(ii) together with the accounts specified in paragraph (b)
above, a certificate signed by two of its directors
(without personal liability) on its behalf setting
out in reasonable detail computations establishing
compliance with Clause 17.12 (Financial covenants) as
at the date to which those accounts were drawn-up.
17.3 INFORMATION - MISCELLANEOUS
Each Borrower shall supply to the Agent in sufficient copies for all of
the Banks, if the Agent so requests:
(a) (in the case of the Company) all documents despatched by it to
its shareholders (or any class of them) or its creditors (or
any class of them) at the same time as they are despatched;
(b) promptly upon becoming aware of them, details of any
litigation, arbitration or administrative proceedings which
are current, threatened or pending, and which might, if
adversely determined. have a material adverse effect on the
ability of the Company to perform its obligations under this
Agreement; and
(c) (in the case of the Company) promptly, such further
information in the possession or control of any member of the
Group regarding its financial condition as the Majority Banks
may reasonably request and which the Company is at liberty to
disclose without breaching the rules or legal requirements of
the London Stock Exchange, any other applicable laws or any
duties of confidentiality owed to parties other than any
member of the Group.
17.4 NOTIFICATION OF DEFAULT
Each Borrower shall notify the Agent of any Default (and the steps, if
any, being taken to remedy it) promptly upon becoming aware of its
occurrence.
17.5 COMPLIANCE CERTIFICATES
The Company shall supply to the Agent:
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43
(a) together with the accounts specified in Clause 17.2(a) and (b)
(Financial Information); and
(b) promptly at any other time, if the Agent so requests
(provided that the Agent may not make more than three such
requests during any financial year of the Company unless at
the date of the request a Default is outstanding),
a certificate signed by two of its directors (without personal
liability) on its behalf certifying that no Default is outstanding or,
if a Default is outstanding, specifying the Default and the steps, if
any, being taken to remedy it.
17.6 AUTHORISATIONS
Each Borrower shall promptly:
(a) obtain, maintain and comply with the terms of; and
(b) supply certified copies to the Agent of,
any authorisation required under any law or regulation to enable it to
perform its obligations under, or for the validity or enforceability
of, any Finance Document.
17.7 PARI PASSU RANKING
Each of the Company and each other Borrower shall procure that its
obligations under the Finance Documents do and will rank at least pari
passu with all its other present and future unsecured obligations,
except for those obligations which are mandatorily preferred by law
applying to companies generally.
17.8 NEGATIVE PLEDGE
(a) The Company shall not, and shall procure that none of its Material
Subsidiaries will, create or permit to subsist any Security Interest on
any of its assets unless at the same time the Company or, as the case
may be, that Material Subsidiary creates a Security Interest in favour
of the Banks securing all the obligations of the Borrowers under this
Agreement upon the same assets, ranking at least pari passu with the
other obligations secured on those assets.
(b) Paragraph (a) does not apply to:
(i) any lien arising by operation of law (or by an agreement
evidencing the same) in the ordinary course of business and
securing amounts not more
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44
than 30 days overdue or which is being contested in good faith
and by appropriate means;
(ii) Security Interests created by Xxxxx Inc. and/or any of its
Subsidiaries (whether on, before or (but only if in accordance
with the existing terms of the U.S. Facility) after the date
of this Agreement) to secure:
(A) the U.S. Facility; or
(B) the secured facility dated 27th July, 1990 for Xxxxx
Inc. arranged by Bankers Trust Company, until the
date on which that facility is to be repaid or
prepaid in accordance with Clause 4.2 (Condition
precedent to the first Loan),
provided that the principal amount of Financial Indebtedness secured
thereby is not increased except, for the facility referred to in
sub-paragraph (B) above only, by reason of any fluctuation in the
amount outstanding under that facility and within the limits and in
accordance with the terms of that facility; and
(iii) any Security Interests existing at the date of this Agreement
(which Security Interests secure a principal amount of
indebtedness incurred or committed to be lent not exceeding in
aggregate US$35.000,000 or its equivalent in other
currencies);
(iv) any Security Interest in respect of the refinancing, renewal
or extension of any indebtedness incurred or committed to be
lent and secured by any Security Interest referred to in
sub-paragraph (iii) above, provided that the principal amount
of any such secured indebtedness is not increased except to
the extent permitted by paragraph (xi) below:
(v) any Security Interest arising out of any rights of
consolidation, combination or set-off over any clearing or
current or deposit account in connection with a cash
management scheme operated by a member of the Group at its
clearing bank;
(vi) any Security Interest created by the Company or a Material
Subsidiary in respect of goods, the related documents of title
and/or other related documents arising or created in the
ordinary course of its business as security only for
indebtedness to a bank or financial institution relating to
the goods or documents on or over which that Security Interest
exists;
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(vii) any Security Interest arising out of title retention
provisions in a supplier's standard conditions of supply of
goods acquired by the relevant person in the ordinary course
of business,
(viii) any Security Interest existing at the time of acquisition on
or over any asset acquired by the Company or a Material
Subsidiary after the date of this Agreement and not created in
contemplation of or in connection with that acquisition and
any Security Interest created in respect of the refinancing or
renewal of the indebtedness to which that Security Interest
relates, provided that the principal amount of that
indebtedness is not increased after the date of the
acquisition;
(ix) in the case of any company which becomes a Subsidiary after
the date of this Agreement, any Security Interest existing on
or over its assets when it becomes a Subsidiary and not
created in contemplation of or in connection with it becoming
a Subsidiary and any Security Interest created in respect of
the refinancing or renewal of the indebtedness to which that
Security Interest relates, provided that the principal amount
of that indebtedness is not increased after the date of that
company becoming a Subsidiary;
(x) any Security Interest on credit balances with a bank or
similar financial institution as security for back-to-back or
similar finance to be provided to a member of the Group;
(xi) any Security Interest created or outstanding on or over assets
of the Company or any Material Subsidiary, provided that the
aggregate outstanding principal, capital or nominal amount
secured by all Security Interests created or outstanding under
this exception (including any indebtedness which exceeds the
limit referred to in paragraph (id) above) on or over assets
of the Company or any Material Subsidiary must not at any time
exceed 10 per cent. of the Tangible Consolidated Net Worth (as
defined in Clause 17.12 (Financial covenants)) in aggregate or
its equivalent (as reasonably determined by the Agent); and
(xii) any Security Interest not otherwise permitted by the above
provisions which is created or subsists with the prior written
consent of the Majority Banks.
17.9 TRANSACTIONS SIMILAR TO SECURITY
(a) Subject to paragraph (b) below, the Company shall not, and the Company
shall procure that none of its Material Subsidiaries will:
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46
(i) sell, transfer or otherwise dispose of any of its assets on
terms whereby it is or may be leased to or re-acquired or
acquired by a member of the Group or any of its related
entities; or
(ii) sell, transfer or otherwise dispose of any of its receivables
on terms which provide for recourse to the Company or any
Material Subsidiary in the event that such a receivable is
uncollectable, except for the discounting of bills or notes in
the ordinary course of trading,
in circumstances where the transaction is entered into primarily as a
method of raising finance or of financing the acquisition of an asset.
(b) Paragraph (a) does not apply to:
(i) any such transaction that may be entered into:
(A) with the prior consent of the Majority Banks; or
(B) where that transaction (together with all other such
transactions, whether related or not) would
constitute a disposal which is not substantial in
relation to the assets of the Group as a whole; and
(ii) a sale, transfer or disposal of assets on arm's length terms
(on terms whereby it is or may be so leased or re-acquired)
within 180 days of the purchase, transfer or acquisition of
those assets by the Company or any Material Subsidiary, as the
case may be.
17.10 DISPOSALS
(a) The Company shall not, and the Company shall procure that no other
member of the Group will, either in a single transaction or in a series
of transactions, whether related or not and whether voluntarily or
involuntarily, sell, transfer, grant or lease or otherwise dispose of
all or any substantial part of its assets.
(b) Paragraph (a) does not apply to:
(i) disposals made in the ordinary course of business of the
disposing entity; or
(ii) disposals of assets in exchange for, or for cash proceeds
which are used within 3 months of that disposal to acquire,
other assets comparable or superior as to type, value and
quality; or
(iii) disposals made with prior consent of the Majority Banks; or
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47
(iv) disposals which are not substantial in the context of the
Group taken as a whole; or
(v) disposals by one member of the Group to the Company or to
another member of the Group in circumstances where the direct
or indirect shareholding or other interest of the Company in
that other member of the Group acquiring the asset in question
is equal to or greater than the direct or indirect
shareholding or other interest of the Company in the member of
the Group disposing of that asset; or
(vi) disposals by a member of the Group to another member of the
Group where the Company's direct or indirect shareholding or
other interest in the member of the Group acquiring the asset
is less than its direct or indirect shareholding or other
interest in the member of the Group disposing of that asset,
provided that the disposal is on arm's length terms for market
value and for a consideration to be satisfied in full at the
time of the disposal; or
(vii) disposals on normal commercial terms on an arm's length basis
of obsolete assets or assets no longer required for the
purpose of the relevant person's business; or
(viii) the payment of cash as consideration for the acquisition of
any asset on normal commercial terms on an arm's length basis;
or
(ix) the temporary application of funds not immediately required in
the relevant person's business in the purchase or making of
investments or the realisation of those investments; or
(x) the application of the proceeds of an issue of securities
(whether equity or debt) for the purpose stated in the
prospectus or other offering document relating to that issue.
17.11 CHANGE OF BUSINESS
The Company shall procure that no substantial change is made to the
general nature or scope of the business of the Company or the Group
from that carried on at the date of this Agreement. An extension or
commencement of business to include allied, related or similar
activities does not constitute a change of business for this purpose.
17.12 FINANCIAL COVENANTS
(a) In this Clause 17.12:
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48
"EXCLUDED CASH"
means, in respect of any member of the Group, the amount (if any) of
any cash in hand or cash at bank or other form of deposit, in each
case, of that member held outside the U.K. which or the proceeds of
which, in accordance with all applicable foreign exchange laws or other
laws, is or are not permitted at that time to be applied to meet any
indebtedness included in the calculation of Total Consolidated
Borrowings or to be remitted to the U.K.
"INTEREST PAYABLE"
means all interest, acceptance commission and all other continuing,
regular or periodic costs, charges and expenses in the nature of
interest (whether paid, payable or capitalized) incurred by the Group
in effecting, servicing or maintaining Total Consolidated Borrowings
during a financial year of the Group.
"INVESTMENTS"
means:
(a) the then current market value of marketable debt securities
issued or guaranteed by any OECD member government;
(b) short term deposits and money at call with a recognized bank,
building society or financial institution incorporated or
established in the OECD, except to the extent they constitute
Excluded Cash;
(c) the then current market value of any certificate of deposit
the term of which has 12 months or less remaining to maturity
issued by a recognised bank, building society or financial
institution incorporated or established in the OECD;
(d) the then current market value of any commercial paper and any
other negotiable money market instrument with a maximum
maturity of 12 months or less with ratings of Al granted by
Standard & Poor's Ratings Group and PI granted by Xxxxx'x
Investors Service, Inc. respectively (or, if a rating is
granted by only one of these agencies either A1 granted by
Standard & Poor's Ratings Group or P1 granted by Xxxxx'x
Investors Service, Inc.) or is issued or guaranteed by a
recognised bank or building society incorporated or
established in the OECD; and
(e) any cash in hand or cash at bank, except to the extent they
constitute Excluded Cash.
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49
"NET INTEREST"
means Interest Payable less any interest or amounts in the nature of
interest receivable by any member of the Group during the relevant
financial year or, if not remittable to the UK, is receivable in an
OECD country or is off-settable in the relevant jurisdiction against
any Interest Payable.
"OPERATING PROFIT"
means the consolidated profits before tax (after adding back Interest
Payable and any exceptional item shown as such in the Profit and Loss
Account) of The Group for a financial year of the Group (before taking
into account any extraordinary items; shown as such in the Profit and
Loss Account).
"TANGIBLE CONSOLIDATED NET WORTH"
means at any time the aggregate of,
(i) the amount paid up or credited as paid up on the issued share
capital of the Company; and
(ii) the amount standing to the credit of the consolidated capital
and revenue reserves of the Group;
based on the Balance Sheet but adjusted by:
(A) adding any amount standing to the credit of the profit and
loss account for the Group for the period ending on the date
of the Balance Sheet, to the extent not included in
sub-paragraph (ii) above and to the extent the amount is not
attributable to any dividend or other distribution declared,
recommended or made by any member of the Group;
(B) deducting (to the extent not already reflected in the
reserves) any amount standing to the debit of the profit and
loss account for the Group for the period ending on the date
of the Balance Sheet;
(C) deducting any amount attributable to goodwill or any other
intangible asset except that any goodwill or any other
intangible asset arising on the acquisition of companies and
businesses made after the date of the Agreement will not be
deducted or (to the extent already deducted or written off)
will be added back;
(D) deducting (so far as not otherwise excluded as attributable to
minority interests) any amount attributable to an upward
revaluation of assets of any member
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of the Group after 1st April, 1995 or, in the case of assets
of a company which becomes a member of the Group after that
date, the date on which that company becomes a member of the
Group, save where the upward revaluation is made pursuant to
SSAP 14;
(E) reflecting any variation in the amount of the issued share
capital of the Company and the consolidated capital and
revenue reserves of the Group after the date of the Balance
Sheet;
(F) reflecting any variation in the interest of the Company in any
other member of the Group since the date of the Balance Sheet;
(G) excluding any amount attributable to deferred taxation (other
than deferred taxation insofar as standing to the credit of
reserves in accordance with SSAP 15);
(H) excluding any amount attributable to minority interests; and
(I) eliminating inconsistencies between the accounting principles
applied in connection with the Balance Sheet and those applied
in connection with the Original Group Accounts.
"TOTAL CONSOLIDATED BORROWINGS"
means at any time the aggregate (without double counting) of the following:
(i) the outstanding principal amount of any moneys borrowed by any
member of the Group and any outstanding overdraft debit
balance of any member of the Group;
(ii) the outstanding principal amount of any debenture, bond, note,
loan stock or other security (other than equity which is not a
mechanism for borrowing) of any member of the Group;
(iii) the outstanding principal amount of any acceptance under any
acceptance credit opened by a bank or other financial
institution in favour of any member of the Group, except for
any such acceptance credit opened in the ordinary course of
trade the term of which is 180 days or less;
(iv) the outstanding principal amount of all moneys owing by a
member of the Group in connection with the sale or discounting
of receivables (otherwise than on a nonrecourse basis);
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51
(v) the outstanding principal amount of any indebtedness of any
member of the Group arising from any advance or deferred
payment agreements arranged primarily as a method of raising
finance or financing the acquisition of an asset (other than
any asset obtained on normal commercial terms in the ordinary
course of trading);
(vi) the capitalised element of indebtedness of any member of the
Group in respect of a lease entered into primarily as a method
of raising finance or financing the acquisition of the asset
leased;
(vii) any fixed or minimum premium payable on the repayment or
redemption at maturity of any instrument referred to in
sub-paragraph (ii) above; and
(viii) the outstanding principal amount of any indebtedness of any
person of a type referred to in sub-paragraphs (i) - (vii)
above which is the subject of a guarantee or indemnity by any
member of the Group,
other than any Financial Indebtedness owed by one member of the Group
to another member of the Group.
Any amount outstanding in a currency other than Sterling is to be taken
into account at the relevant rate of exchange used in the preparation
of the financial statement in question, but if there is no such
financial statement, at its Sterling equivalent calculated on the basis
of the Agent's spot rate of exchange for the purchase of that currency
in the London foreign exchange market with Sterling at or about 11.00
a.m. on the day the relevant amount falls to be calculated.
"TOTAL CONSOLIDATED NET BORROWINGS"
means at any time Total Consolidated Borrowings at that time less
Investments at that time of any member of the Group.
(b) All the terms used in paragraph (a) above are to be calculated in
accordance with the accounting principles applied in connection with
the Original Group Accounts.
(c) The Company shall procure that:
(i) Tangible Consolidated Net Worth is not at any time less than
(pound)525,000,000;
(ii) the ratio of Total Consolidated Net Borrowings to Tangible
Consolidated Net Worth is not at any time more than 1.25:1;
and
(III) the ratio of Operating Profit to Net Interest is not, at the
end of each financial year of the Group, less than 3.00:1.
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17.13 SUBSIDIARY BORROWINGS
No Borrower other than the Company shall, and the Company shall procure
that no Material Subsidiary will, incur any Borrowings other than:
(a) Borrowings under this Agreement;
(b) Borrowings under the U.S. Facility or any refinancing of the
U.S. Facility but, except with the prior written consent of
the Majority Banks, the principal amount of that facility may
not be increased except by reason of any fluctuation in the
amount outstanding under that facility in accordance with its
terms;
(c) Borrowings from
(i) the Company, or
(ii) another Material Subsidiary; or
(iii) any other Subsidiary (other than the Company or a
Material Subsidiary), except to the extent that the
Borrowings are funded by that Subsidiary from
Borrowings from outside the Group;
(d) in the case of a company that becomes a Subsidiary after the
date of this Agreement, any Borrowings of that Subsidiary
existing when it becomes a Subsidiary and not incurred in
connection with it becoming a Subsidiary or any Borrowings
incurred to refinance those Borrowings, provided that:
(i) the principal amount of the Borrowings are not
increased after the date of that company becoming a
Subsidiary; and
(ii) the borrowings are not guaranteed by the Company or
any Material Subsidiary; and
(e) any Borrowings (other than Borrowings set out in
sub-paragraphs (a) to (d) (inclusive) above) of Material
Subsidiaries which do not exceed in aggregate USS350,000,000
(or its equivalent in any other currency or currencies).
17.14 GUARANTEES
The Company shall procure that no guarantee or indemnity or other
similar assurance against financial loss is granted by any of the
Material Subsidiaries in respect of any Financial Indebtedness of the
Company, unless a similar guarantee,
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indemnity or other assurance has been granted in favour of the
Banks in respect of the Company's obligations under the
Finance Documents, except that Material Subsidiaries
incorporated in the UK may grant guarantees, in the ordinary
course of their business, to secure the Company's indebtedness
in respect of debit balances of members of the Group with the
Group's UK clearing banks (being currently Barclays Bank PLC,
National Westminster Bank Plc, Royal Bank of Scotland p1c,
Lloyds Bank Plc and Standard Chartered Bank) if:
(a) the bank to whom the guarantee is granted (the "BENEFICIARY")
is. at the time of granting the guarantee, providing group
overdraft limits to the Company and one or more of its UK
subsidiaries;
(b) the relevant guarantee extends only to cover debit
balances on accounts of members of the Group with the
Beneficiary included in the cash management scheme provided by
that Beneficiary; and
(c) the liability of each Material Subsidiary under any guarantee
provided by it under this exception is limited in amount to
the amount (if any) of the credit balance(s) on that Material
Subsidiary's account(s) with the Beneficiary which are part of
the cash management scheme provided by that Beneficiary.
17.15 COMPLIANCE WITH ERISA
(a) No US Borrower shall, and the Company shall procure that no other
member of the Group incorporated in the United States will, establish
any new employee benefit plan or amend any existing employee benefit
plan if the liability or increased liability resulting from such
establishment or amendment would be reasonably likely to have a
material adverse effect on the ability of the Company to perform its
obligations under the Finance Documents.
(b) Each US Borrower shall, and the Company shall procure that each US
Borrower will, establish, maintain and operate each employee benefit
plan maintained by each US Borrower and each person (an "ERISA
AFFILIATE") which is a member of a group which is under common control
with that US Borrower within the meaning of Section 414(b) and (c) of
the United States Internal Revenue Code (the "IRC") for the benefit of
any of the employers of that US Borrower or an ERISA affiliate in
compliance in all material respects with the provisions of the United
States Employee Retirement Income Security Act of 1974 ("ERISA"), the
IRC and all other applicable laws and regulations except where failure
to comply would not be reasonably likely to have a material adverse
effect on the ability of the Company to perform its obligations under
the Finance Documents, and shall not
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permit any accumulated funding deficiency (as specified in the IRC) to
occur with respect to any such employee benefit plan by more than an
amount which would be reasonably likely to have a material adverse
effect on the ability of the Company to perform its obligations under
the Finance Documents.
18. DEFAULT
18.1 EVENTS OF DEFAULT
Each of the events set out in Clauses 18.2 (Non-Payment) to 18.14
(Material adverse change) (inclusive) is an Event of Default (whether
or not caused by any reason whatsoever outside the control of any
Borrower or any other person).
18.2 NON-PAYMENT
Any Borrower does not pay within 3 Business Days of the due date any
amount payable by it under the Finance Documents at the place at and in
the currency in which it is expressed to be payable.
18.3 BREACH OF OTHER OBLIGATIONS
Any Borrower does not comply with any provision of the Finance
Documents (other than those referred to in Clause 18.2 (Non-payment))
and, except in the case of a breach of Clause 17.12 (Financial
covenants), if that default is capable of remedy, it is not remedied
within 30 days after notice of that default is given to the Company by
the Agent.
18.4 MISREPRESENTATION
A representation, warranty or statement made or repeated in or in
connection with any Finance Document or in any document delivered by or
on behalf of any Borrower under or in connection with any Finance
Document is incorrect in any material respect when made or deemed to be
made or repeated.
18.5 CROSS-DEFAULT
(a) Any Financial Indebtedtness of the Company or any Material Subsidiary
is not paid when due or within any applicable grace period; or
(b) an event of default howsoever described occurs under any document
relating to Financial Indebtedness of the Company or any Material
Subsidiary, unless the event of default:
(i) is not material; and
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(ii) is remedied or unconditionally waived within 21 days of the
Company or the relevant Material Subsidiary becoming aware of
its occurrence without any lender concerned taking any action
to improve its position; or
(c) any Financial Indebtedness of the Company or any Material Subsidiary
becomes prematurely due and payable or is placed on demand, in either
case as a result of an event of default (howsoever described) under the
document relating to that Financial Indebtedness; or
(d) any commitment for, or underwriting of, any Financial Indebtedness of
the Company or any Material Subsidiary is cancelled or suspended as a
result of an event of default (howsoever described) under the document
relating to that Financial Indebtedness,
provided that the aggregate amount of any such Financial Indebtedness
referred to in paragraphs (a) to (d) above is equal to or exceeds
US$10,000,000 or its equivalent in other currencies.
18.6 INSOLVENCY
(a) The Company or any Material Subsidiary is, or is deemed for the
purposes of any law (other than Section 123(i)(a) of the Insolvency act
1986, in circumstances where the sum claimed in the statutory demand is
being contested by the Company or the relevant Material Subsidiary in
good faith and the Company or the relevant Material Subsidiary is able
to show, to the reasonable satisfaction of the Agent, that the contest
will succeed) to be, unable to pay its debts as they fall due or to be
insolvent, or admits inability to pay its debts as they fall due; or
(b) the Company or any Material Subsidiary suspends making payments on all
or any class of its debts or announce, an intention to do so, or a
moratorium is declared in respect of any of its indebtedness; or
(c) the Company or any Material Subsidiary by reason of financial
difficulties, begins negotiations with one or more of its creditors
with a view to the readjustment or rescheduling or any of its
indebtedness.
18.7 WINDING-UP AND OTHER PROCEEDINGS
(a) Any step (including petition, proposal or convening a meeting)
is taken by the Company or any Material Subsidiary with a view
to a composition, assignment or arrangement with any creditors
of the Company or any Material Subsidiary; or
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(b) a meeting of the Company or any Material Subsidiary is
convened by the Company or any Material Subsidiary for the
purpose of considering any resolution for (or to petition for)
its winding-up of its administration or any such resolution is
passed; or
(c) any person presents a petition for the winding-up or for the
administration of the Company or any Material Subsidiary and,
in the case of a petition for the winding-up of the Company or
any Material Subsidiary, that petition is not withdrawn within
30 days of the Company or the relevant Material Subsidiary
becoming aware of the same or the Company or the relevant
Material Subsidiary is contesting the petition in good faith
and is able to show, to the reasonable satisfaction of the
Agent, that the petition for winding-up will be struck out or
dismissed; or
(d) any order for the winding-up or administration of the Company
or any Material Subsidiary is made,
save for (i) the purposes of a reconstruction, amalgamation,
reorganisation, merger or consolidation of the Company or the relevant
Material Subsidiary on terms approved in advance by the Majority Banks
(such approval, in the case of a Material Subsidiary (other than a
Borrower), not to be unreasonably withheld) and (ii) the voluntary
solvent winding-up of a Material Subsidiary (other than a Borrower).
18.8 APPOINTMENT OF RECEIVERS AND MANAGERS
(a) Any liquidator, trustee in bankruptcy, judicial custodian, compulsory
manager, receiver, administrative receiver, administrator or the like
is appointed in respect of the Company or any Material Subsidiary or
any part of its assets, save for (i) the purposes of a reconstruction,
amalgamation, reorganisation, merger or consolidation of the Company or
the relevant Material Subsidiary on terms approved in advance by the
Majority Banks (such approval, in the case of a Material Subsidiary
(other than a Borrower), not to be unreasonably withheld) and (ii) the
voluntary solvent winding-up of a Material Subsidiary (other than a
Borrower); or
(b) the directors of the Company or any Material Subsidiary request the
appointment of a liquidator, trustee in bankruptcy, judicial custodian,
compulsory manager, receiver, administrative receiver, administrator or
the like, save for (i) the purposes of a reconstruction, amalgamation,
reorganisation, merger or consolidation of the Company or the relevant
Material Subsidiary on terms approved in advance by the Majority Banks
(such approval, in the case of a Material Subsidiary (other than a
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Borrower), not to be unreasonably withheld) and (ii) the voluntary
solvent winding-up of a Material Subsidiary (other than a Borrower).
18.9 CREDITORS' PROCESS
Any attachment, sequestration, distress or execution affects any asset
of the Company or any Material Subsidiary and is not discharged within
21 days of such action, unless being contested in good faith by
appropriate means.
18.10 ANALOGOUS PROCEEDINGS
There occurs, in relation to the Company or any Material Subsidiary,
any event anywhere which, in the opinion of the Majority Banks,
corresponds with any of those mentioned in Clauses 18.6 (Insolvency) to
18.9 (Creditors' process) (inclusive).
18.11 CESSATION OF BUSINESS
The Company or any Material Subsidiary ceases, or threatens to cease,
to carry on all or a substantial part of its business save for (i) the
purposes of a reconstruction, amalgamation, reorganisation, merger or
consolidation of the Company or the relevant Material Subsidiary on
terms approved in advance by the Majority Banks (such approval, in the
case of a Material Subsidiary (other than a Borrower), not to be
unreasonably withheld) and (ii) the voluntary solvent winding-up of a
Material Subsidiary (other than a Borrower).
18.12 UNLAWFULNESS
It is or becomes unlawful for a Borrower to perform any of its material
obligations under the Finance Documents.
18.13 GUARANTEE
The guarantee of the Company is not effective or is alleged by the
Company to be ineffective for any reason.
18.14 MATERIAL ADVERSE CHANGE
Any event or series of events occurs which, in the reasonable opinion
of the Majority Banks, would have a material and adverse effect on the
ability of the Company to comply with its obligations under the Finance
Documents and each of the relevant Banks (through the Agent) shall
promptly (but without prejudice to the rights of the Banks under this
Agreement) provide the Company with a certificate
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setting out in reasonable detail the event or series of events in
question and the reasons for such an opinion.
18.15 ACCELERATION
On and at any time after the occurrence of an Event of Default if such
Event of Default is continuing the Agent may, and shall if so directed
by the Majority Banks, by notice to the Company:
(a) cancel the Total Commitments; and/or
(b) demand that all or part of the Loans, together with accrued
interest, and all other amounts accrued under this Agreement
be immediately due and payable, whereupon they shall become
immediately due and payable; and/or
(c) demand that all or part of the Loans be payable on demand,
whereupon they shall immediately become payable on demand.
19. THE AGENT AND THE ARRANGERS
19.1 APPOINTMENT AND DUTIES OF THE AGENT
Each Finance Party (other than the Agent) irrevocably appoints the
Agent to act as its agent under and in connection with the Finance
Documents, and irrevocably authorises the Agent on its behalf to
perform the duties and to exercise the rights, powers and discretions
that are specifically delegated to it under or in connection with the
Finance Documents, together with any other incidental rights, powers
and discretions. The Agent shall have only those duties which are
expressly specified in this Agreement. Those duties are solely of a
mechanical and administrative nature.
19.2 ROLE OF THE ARRANGERS
Except as otherwise provided in this Agreement, no Arranger has any
obligations of any kind to any other Party under or in connection with
any Finance Document.
19.3 RELATIONSHIP
The relationship between the Agent and the other Finance Parties is
that of agent and principal only. Nothing in this Agreement constitutes
the Agent as trustee or fiduciary for any other Party or any other
person and the Agent need not hold in trust any moneys paid to it for a
Party or be liable to account for interest on those moneys.
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19.4 MAJORITY BANKS' DIRECTIONS
The Agent will be fully protected if it acts in accordance with the
instructions of the Majority Banks in connection with the exercise of
any right, power or discretion or any matter not expressly provided for
in the Finance Documents. Any such instructions given by the Majority
Banks will be binding on all the Banks. In the absence of such
instructions the Agent may act as it reasonably considers to be in the
best interests of all the Banks, provided that the Agent may not start
any legal proceedings on behalf of a Finance Party without that Finance
Party's prior consent.
19.5 DELEGATION
The Agent may act under the Finance Documents through its personnel and
agents.
19.6 RESPONSIBILITY FOR DOCUMENTATION
Neither the Agent nor any Arranger is responsible to any other Party
for:
(a) the execution, genuineness, validity, enforceability or
sufficiency of any Finance Document or any other document; or
(b) the collectability of amounts payable under any Finance
Document; or
(c) the accuracy of any statements (whether written or oral) made
in or in connection with any Finance Document.
19.7 DEFAULT
(a) The Agent is not obliged to monitor or enquire as to whether or not a
Default has occurred. The Agent will not be deemed to have knowledge of
the occurrence of a Default. However, if the Agent receives notice from
a Party referring to this Agreement, describing the Default and stating
that the event is a Default, it shall promptly notify the Banks.
(b) The Agent may require the receipt of security satisfactory to it
whether by way of payment in advance or otherwise, against any
liability or loss which it will or may incur in taking any proceedings
or action arising out of or in connection with any Finance Document
before it commences these proceedings or takes that action.
19.8 EXONERATION
(a) Without limiting paragraph (b) below, the Agent will not be liable to
any other Party for any action taken or not taken by it under or in
connection with any
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Finance Document, unless directly caused by its gross negligence or
wilful misconduct.
(b) No Party may take any proceedings against any officer, employee or
agent of the Agent in respect of any claim it might have against the
Agent or in respect of any act or omission of any kind (including
negligence or wilful misconduct) by that officer, employee or agent in
relation to any Finance Document.
19.9 RELIANCE
The Agent may:
(a) rely on any notice or document believed by it to be genuine
and correct and to have been signed by, or with the authority
of, the proper person;
(b) rely on any statement made by a director or employee of any
person regarding any matters which may reasonably be assumed
to be within his knowledge or within his power to verify; and
(c) engage, pay for and rely on legal or other professional
advisers selected by it (including those in the Agent's
employment and those representing a Party other than the
Agent).
19.10 CREDIT APPROVAL AND APPRAISAL
Without affecting the responsibility of the Company for information
supplied by it or on its behalf in connection with any Finance
Document, each Bank confirms that it:
(a) his made its own independent investigation and assessment of
the financial condition and affairs of the Company and its
related entities in connection with its participation in this
Agreement and has not relied exclusively on any information
provided to it by the Agent or an Arranger in connection with
any Finance Document; and
(b) will continue to make its own independent appraisal of the
creditworthiness of the Company and its related entities while
any amount is or may be outstanding under the Finance
Documents or any Commitment is in force.
19.11 INFORMATION
(a) The Agent shall promptly forward to the person concerned the original
or a copy of any document which is delivered to the Agent by a Party
for that person.
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(b) The Agent shall promptly supply a Bank with a copy of each document
received by the Agent under Clause 4 (Conditions Precedent) upon the
request and at the expense of that Bank.
(c) Except where this Agreement specifically provides otherwise, the Agent
is not obliged to review or check the accuracy or completeness of any
document it forwards to another Party.
(d) Except as provided above, the Agent has no duty:
(i) either initially or on a continuing basis to provide any Bank
with any credit or other information concerning the financial
condition or affairs of the Company or any related entity of
the Company whether coming into its possession or that of any
of its related entities before, on or after the date of this
Agreement; or
(ii) unless specifically requested to do so by a Bank in accordance
with this Agreement, to request any certificates or other
documents from any Borrower.
19.12 THE AGENT AND THE ARRANGERS INDIVIDUALLY
(a) If it is also a Bank, each of the Agent and the Arrangers has the same
rights and powers under this Agreement as any other Bank and may
exercise those rights and powers as though it were not the Agent or an
Arranger.
(b) If it is also a Bank or an Arranger, any reference in the Finance
Documents to the Agent means the agency department of the Agent
specifically responsible for acting as Agent under and in connection
with the Finance Documents, as referred to in Clause 32 (Notices). In
acting as Agent, the agency department will be treated as a separate
entity from any other department or division of the Bank or Arranger
concerned. Without limiting the above, the Agent will not be deemed to
have notice of a document, information, fact, matter or thing in the
possession or knowledge of any other department or division of that
Bank or Arranger.
(c) Each of the Agent and the Arrangers may:
(i) carry on any business with the Company or its related
entities;
(ii) act as agent or trustee for, or in relation to any financing
involving, the Company or its related entities; and
(iii) retain any profits or remuneration in connection with its
activities under this Agreement or in relation to any of the
foregoing.
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19.13 INDEMNITIES
(a) Without limiting the liability of the Borrowers under the Finance
Documents, each Bank shall, within 2 Business Days of demand, indemnify
the Agent for its proportion of any liability or loss incurred by the
Agent in any way relating to or arising out of its acting as the Agent,
except to the extent that the liability or loss arises directly from
the Agent's gross negligence or wilful misconduct.
(b) A Bank's proportion of the liability or loss set out in paragraph (a)
above is the proportion which its participation in the Loans (if any)
bear to all the Loans on the date of the demand. If, however, there are
no Loans outstanding on the date of demand, then the proportion will be
the proportion which its Commitment bears to the Total Commitments at
the date of demand or, if the Total Commitments have been cancelled,
bore to the Total Commitments immediately before being cancelled.
19.14 COMPLIANCE
(a) The Agent may refrain from doing anything which might, in its opinion,
constitute a breach of any law or regulation or be otherwise actionable
at the suit of any person, and may do anything which, in its opinion,
is necessary or desirable to comply with any law or regulation of any
jurisdiction.
(b) Without limiting paragraph (a) above, the Agent need not disclose any
information relating to the Company or any of its related entities if
the disclosure might, in the opinion of the Agent, constitute a breach
of any law or regulation or any duty of secrecy or confidentiality or
be otherwise actionable at the suit of any person.
19.15 RESIGNATION OF AGENT
(a) Notwithstanding its irrevocable appointment, the Agent may resign by
giving notice to the Banks and the Company, in which case the Agent may
forthwith appoint one of its Affiliates as successor Agent or, failing
that, the Majority Banks may after consultation with the Company
appoint a successor Agent.
(b) If the appointment of a successor Agent is to be made by the Majority
Banks but they have not, within 30 days after notice of resignation,
appointed a successor Agent which accepts the appointment, the retiring
Agent may after consultation with the Company appoint a successor
Agent.
(c) The resignation of the retiring Agent and the appointment of any
successor Agent will both become effective only upon the successor
Agent notifying all the Parties that it accepts the appointment. On
giving the notification, the successor Agent
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will succeed to the position of the retiring Agent and the term "AGENT"
will mean the successor Agent.
(d) The retiring Agent shall, at its own cost, make available to the
successor Agent such documents and records and provide such assistance
as the successor Agent may reasonably request for the purposes of
performing its functions as the Agent under this Agreement.
(e) Upon its resignation becoming effective, this Clause 19 (The Agent and
the Arrangers) shall continue to benefit the retiring Agent in respect
of any action taken or not taken by it under or in connection with the
Finance Documents while it was the Agent, and, subject to paragraph (d)
above, it shall have no further obligation under any Finance Document.
(f) The Majority Banks may, at any time, with the prior consent of the
Company (such consent not to be unreasonably withheld) direct the Agent
to resign, whereupon the Agent shall resign but may not appoint its
successor. If the Majority Banks direct the Agent to resign, they may,
with the prior consent of the Company (such consent not to be
unreasonably withheld), appoint a successor Agent.
19.16 BANKS
The Agent may treat each Bank as a Bank, entitled to payments under
this Agreement and as acting through its Facility Office(s) until it
has received notice from the Bank to the contrary not less than 5
Business Days prior to the relevant payment.
20. FEES
20.1 FRONT-END FEE
The Company shall pay to the Agent for the Arrangers within three
Business Days of the date of this Agreement a front-end fee in the
amount agreed in the Fee Letter between the Arrangers and the Company.
The front-end fee shall be distributed by the Agent, on behalf of the
Arrangers, among the Banks in the proportions agreed between the
Arrangers and the Banks prior to the date of this Agreement.
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20.2 COMMITMENT FEE
(a) The Company shall pay to the Agent for each Bank a commitment fee
computed at the rate of 0.1 per cent. per annum on the undrawn,
uncancelled amount of that Bank's Commitment during the period from the
date of this Agreement up to and including the Final Repayment Date.
For this purpose, Loans are taken at their Original Dollar Amount.
(b) Accrued commitment fee is payable semi-annually in arrears on the
average unutilised portion of the Commitment. Accrued commitment fee is
also payable to the Agent for the relevant Bank(s) on the cancelled
amount of its Commitment at the time the cancellation takes effect.
20.3 AGENT'S FEE
The Company shall pay to the Agent for its own account an agency fee in
the amount agreed in the Fee Letter between the Agent and the Company.
The agency fee is payable annually in advance. The first payment of
this fee is payable within three Business Days of the date of this
Agreement and each subsequent payment is payable on each anniversary of
the date of this Agreement for so long as any amount is or may be
outstanding under this Agreement or any Commitment is in force.
20.4 VAT
Any fee referred to in this Clause 20 (Fees) is exclusive of any value
added tax or any other tax which might be chargeable in connection with
that fee. If any value added tax or other tax is so chargeable, it
shall to the extent that such value added tax is irrecoverable by the
Agent or the Bank, as the case may be, be paid by the Company at the
same time as it pays the relevant fee.
21. EXPENSES
21.1 INITIAL AND SPECIAL COSTS
The Company shall within 2 Business Days of demand pay the Agent the
amount of all reasonable costs and expenses (including legal fees)
itemised in reasonable detail incurred by it in connection with:
(a) the negotiation, preparation, printing and execution of:
(i) this Agreement;
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(ii) any other Finance Document (other than a Novation
Certificate) executed after the date of this
Agreement; and
(b) any amendment, waiver, consent or suspension of rights (or any
proposal for any of the foregoing) requested by or on behalf
of the Company and relating to a Finance Document.
21.2 ENFORCEMENT COSTS
The Company shall within 2 Business Days of demand pay to each Finance
Party the amount of all reasonable costs and expenses (including legal
fees) incurred by it in connection with the enforcement of, or the
preservation of any rights under, any Finance Document.
22. STAMP DUTIES
The Company shall pay and, within 2 Business Days of demand indemnify
each Finance Party against any liability it incurs in respect of:
(a) any United Kingdom stamp, registration and similar tax which
is or becomes payable in connection with the entry into or,
performance of any Finance Document; and
(b) any stamp, registration and similar tax which is or becomes
payable in connection with the enforcement of any Finance
Document in any jurisdiction,
other than any such tax payable in connection with any assignment or
transfer by any Bank of any of its rights and/or obligations under this
Agreement on the entering into of a Novation Certificate.
23. INDEMNITIES
23.1 CURRENCY INDEMNITY
(a) If a Finance Party receives an amount in respect of a Borrower's
liability under the Finance Documents or if that liability is converted
into a claim, proof, judgment or order in a currency other than the
currency (the "CONTRACTUAL CURRENCY") in which the amount is expressed
to be payable under the relevant Finance Document:
(i) that Borrower shall indemnify that Finance Party as an
independent obligation against any loss or liability arising
out of or as a result of the conversion;
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(ii) if the amount received by that Finance Party, when converted
into the contractual currency at a market rate in the usual
course of its business, is less than the amount owed in the
contractual currency, that Borrower shall within 2 Business
Days of demand pay to that Finance Party an amount in the
contractual currency equal to the deficit; and
(iii) that Borrower shall pay to the Finance Party concerned on
demand any exchange costs, and taxes payable in connection
with any such conversion.
(b) Each Borrower waives any right it may have in any jurisdiction to pay
any amount under the Finance Documents in a currency other than that in
which it is expressed to be payable.
23.2 OTHER INDEMNITIES
The Company shall within 2 Business Days of demand indemnify each
Finance Party against any loss or liability which that Finance Party
incurs as a consequence of:
(a) the occurrence of any Event of Default;
(b) the operation of Clause 18.15 (Acceleration) or Clause 29 (Pro
rata sharing);
(c) any payment of principal or an overdue amount being received
from any source otherwise than on its Repayment Date and, for
the purposes of this paragraph (c), the Repayment Date of an
overdue amount is the last day of each Designated Term (as
defined in Clause 8.3 (Default interest)); or
(d) (other than by reason of negligence or default by a Finance
Party) a Loan not being made after a Borrower has delivered a
Request for that Loan.
The Company's liability in each case includes any loss of margin or
other loss or expense on account of funds borrowed, contracted for or
utilized to fund any amount payable under any Finance Document, any
amount repaid or prepaid or any Loan. At the same time it makes demand,
the Finance Party shall supply a certificate of loss or liability
containing reasonable details of the amount and basis of the claim.
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24. EVIDENCE AND CALCULATIONS
24.1 ACCOUNTS
Accounts maintained by a Finance Party in connection with this
Agreement are prima facie evidence of the matters to which they relate.
24.2 CERTIFICATES AND DETERMINATIONS
Any certification or determination by a Finance Party of a rate or
amount under this Agreement is, in the absence of manifest error,
conclusive evidence of the matters to which it relates.
24.3 CALCULATIONS
Interest and the fee payable under Clause 20.2 (Commitment fee) accrue
from day to day and are calculated on the basis of the actual number of
days elapsed and a year of 360 days, or, in the case of interest
(including any applicable MLA Cost) payable on an amount denominated in
Sterling only, 365 days.
25. AMENDMENTS AND WAIVERS
25.1 PROCEDURE
(a) Subject to Clause 25.2 (Exceptions), any term of the Finance
Documents may be amended or waived with the agreement of the
Company and the Majority Banks. The Agent may effect, on
behalf of the Banks, an amendment to which they or the
Majority Banks have agreed.
(b) The Agent shall promptly notify the other Parties of any
amendment or waiver effected under paragraph (a) above, and
any such amendment or waiver shall be binding on all the
Parties.
25.2 EXCEPTIONS
(a) An amendment or waiver which relates to:
(i) the definition of "Majority Banks" in Clause 1.1
(Interpretation);
(ii) an extension of the date for, or a decrease in an amount or a
change in the currency of, any payment under the Finance
Documents; or
(iii) an increase in a Bank's Commitment; or
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(iv) the incorporation of additional borrowers otherwise than in
accordance with Clause 26.4 (Additional Borrowers); or
(v) a term of a Finance Document which expressly requires the
consent of each Bank; or
(vi) Clause 15 (Guarantee), Clause 17.7 (Pari passu ranking),
Clause 29 (Pro rata sharing) or this Clause 25 (Amendments and
waivers),
may not be effected without the consent of each Bank.
(b) An amendment or waiver which relates to the rights and/or obligations
of the Agent may not be effected without the consent of the Agent.
25.3 WAIVERS AND REMEDIES CUMULATIVE
The rights of each Finance Party under the Finance Documents:
(a) may be exercised as often as necessary;
(b) are cumulative and not exclusive of its rights under the
general law; and
(c) may be waived only in writing and specifically.
Delay in exercising or non-exercise of any such right is not a waiver
of that right.
26. CHANGES TO THE PARTIES
26.1 TRANSFERS BY THE BORROWERS
Neither the Company nor any other Borrower may assign, transfer,
novate, or dispose of any of, or any interest in, its rights and/or
obligations under this Agreement.
26.2 TRANSFERS BY BANKS
(a) A Bank (the ("EXISTING BANK") may at any time assign, transfer or
novate any of its rights and/or obligations under this Agreement and/or
its Commitment to another bank or financial institution (the "NEW
BANK") which is a Qualifying Lender and which complies with its
obligations under Clause 11.3 (US tax forms) and Clause 11.4 (Other tax
forms). If an Existing Bank transfers, assigns or novates its rights
and obligations in respect of less than all its Commitment, the portion
to which such transfer, assignment or novation relates must be equal to
or greater than US$10,000,000. The prior consent of the Company is
required for any such assignment, transfer or novation, unless:
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(i) the New Bank is another Bank or an Affiliate of a Bank; or
(ii) an Event of Default is outstanding.
However, the prior consent of the Company must not be unreasonably
withheld or delayed and will be deemed to have been given if, within 14
days of receipt by the Company of an application for consent, it has
not been expressly refused.
(b) A transfer of obligations will be effective only if either:
(i) the obligations are novated in accordance with Clause 26.3
(Procedure for novations); or
(ii) the New Bank confirms to the Agent and the Company that it
undertakes to be bound by the terms of this Agreement as a
Bank in form and substance satisfactory to the Agent. On the
transfer becoming effective in this manner the Existing Bank
shall be relieved of its obligations under this Agreement to
the extent that they are transferred to the New Bank.
(c) Nothing in this Agreement restricts the ability of a Bank to
sub-contract an obligation if that Bank remains liable under this
Agreement for that obligation.
(d) On each occasion an Existing Bank assigns, transfers or novates any of
its rights and/or obligations under this Agreement, the New Bank shall,
on the date the assignment, transfer and/or novation takes effect, pay
to the Agent for its own account a fee of (pound)750.
(e) An Existing Bank is not responsible to a New Bank for:
(i) the execution genuineness, validity, enforceability or
sufficiency of any Finance Document or any other document;
(ii) the collectability of amounts payable under any Finance
Document; or
(iii) the accuracy of any statements (whether written or oral) made
in or in connection with any Finance Document.
(f) Each New Bank confirms to the Existing Bank and the other Finance
Parties that it:
(i) has made its own independent investigation and assessment of
the financial condition and affairs of the Company and its
related entities in connection with its participation in this
Agreement and has not relied exclusively on
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any information provided to it by the Existing Bank in
connection with any Finance Document; and
(ii) will continue to make its own independent appraisal of the
creditworthiness of the Company and its related entities while
any amount is or may be outstanding under this Agreement or
any Commitment is in force.
(g) Nothing in any Finance Document obliges an Existing Bank to:
(i) accept a re-transfer from a New Bank of any of the rights
and/or obligations assigned, transferred or novated under this
Clause; or
(ii) support any losses incurred by the New Bank by reason of the
non-performance by the Company of its obligations under this
Agreement or otherwise.
(h) Any reference in this Agreement to a Bank includes a New Bank, but
excludes a Bank if no amount is or may be owed to or by that Bank under
this Agreement and its Commitment has been cancelled or reduced to nil.
(i) If, at the time of any transfer, novation or assignment by a Bank or of
any change of Facility Office, circumstances exist which would oblige a
Borrower to pay to the New Bank or assignee (or, in the case of a
change of Facility Office, the relevant Bank) under Clause 11 (Taxes),
13 (Increased costs) or 14 (illegality) any sum in excess of the sum
(if any) which it would have been obliged to pay to that Bank under the
relevant Clause in the absence of that transfer, novation, assignment
or change, that Borrower shall not be obliged to pay that excess.
26.3 PROCEDURE FOR NOVATIONS
(a) A novation is effected if:
(i) the Existing Bank and the New Bank deliver to the Agent a duly
completed certificate, substantially in the form of Part I of
Schedule 5 (a "NOVATION CERTIFICATE"),
(ii) the Agent executes it; and
(iii) the novation is in accordance with Clause 26.2(a) (Transfers
by Banks).
(b) Each party (other than the Existing Bank and the New Bank) irrevocably
authorises the Agent to execute any duly completed Novation Certificate
on its behalf.
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(c) To the extent that they are expressed to be the subject of the novation
in the Novation Certificate:
(i) the Existing Bank and the other Parties (the "EXISTING
PARTIES") will be released from their obligations to each
other (the "DISCHARGED OBLIGATIONS");
(ii) the New Bank and the existing Parties will assume obligations
towards each other which differ from the discharged
obligations only insofar as they are owed to or assumed by the
New Bank instead of the Existing Bank;
(iii) the rights of the Existing Bank against the existing Parties
and vice versa (the "DISCHARGED RIGHTS") will be cancelled;
and
(iv) the New Bank and the existing Parties will acquire rights
against each other which differ from the discharged rights
only insofar as they are exercisable by or against the New
Bank instead of the Existing Bank,
all on the date of execution of the Novation Certificate by the Agent
or, if later, the date specified in the Novation Certificate.
26.4 ADDITIONAL BORROWERS
(a) If the Company wishes one of its wholly-owned Subsidiaries to become an
Additional Borrower, then it may (with the prior consent of the Agent
acting on the instructions of the Majority Banks) deliver to the Agent
the documents listed in Part II of Schedule 2.
(b) On delivery of a Borrower Accession Agreement, executed by the relevant
Subsidiary and the Company, the Subsidiary concerned will become an
Additional Borrower. However, it may not utilise the Facility until the
Agent confirms to the other Finance Parties and the Company that it has
received all the documents referred to in paragraph (a) above in form
and substance satisfactory to it.
(c) Delivery of a Borrower Accession Agreement, executed by the relevant
Subsidiary and the Company, constitutes confirmation by that Subsidiary
and the Company that the representations and warranties set out in
Clause 16 (Representations and warranties) and to be made by them on
the date of the Borrower Accession Agreement under, in the case of the
relevant Subsidiary, sub-paragraph (a)(ii) and in the case of the
Company, paragraph (b) of Clause 16.14 (Times for making
representations and warranties) are correct, as if made with reference
to the facts and circumstances then existing.
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72
(d) If at any time a Borrower (other than the Company) is under no payment
obligation under this Agreement, the Company and that Borrower may
declare that that Borrower shall cease to be a Borrower under this
Agreement by delivery to the Agent of a Borrower Cessation Notice. On
delivery of that Borrower Cessation Notice, that Borrower shall
forthwith cease to be a Borrower.
26.5 REFERENCE BANKS
If a Reference Bank (or, if a Reference Bank is not a Bank, the Bank of
which it is an Affiliate) ceases to be one of the Banks, the Agent
shall (in consultation with the Company) appoint another Bank or an
Affiliate of a Bank to replace that Reference Bank.
26.6 REGISTER
The Agent shall keep a register of all the Parties and shall supply any
other Party (at that Party's expense) with a copy of the register on
request.
27. DISCLOSURE OF INFORMATION
(a) A Bank may disclose to an Affiliate or any person with whom it is
proposing to enter, or has entered into, any kind of transfer,
participation or other agreement in relation to this Agreement:
(i) a copy of any Finance Document; and
(ii) any information which that Bank has acquired under or in
connection with any Finance Document;
provided that any such Affiliate or person has agreed in writing to
maintain the confidentiality of any such document or information on the
same terms (with the appropriate consequential changes) as are set out
in paragraph (b) below.
(b) Subject to paragraph (a) above, each Bank shall keep confidential and
not, without the prior written consent of the Company, use any
information (other than information which is publicly available other
than as a result of a breach of this paragraph (b)) supplied by or on
behalf of any Borrower under this Agreement otherwise than in
connection with this Agreement. However, each Bank is entitled to
disclose information:
(i) in connection with any legal proceedings arising out of or in
connection with this Agreement; or
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73
(ii) if requited to do so by an order of a court of competent
jurisdiction whether in pursuance of any procedure for
discovering documents or otherwise; or
(iii) pursuant to any law or regulation in accordance with which
that Bank is required to act; or
(iv) to any governmental, banking or taxation authority of
competent jurisdiction; or
(v) to its auditors or legal or other professional advisers.
28. SET-OFF
A Finance Party may set off any matured obligation owed by a Borrower
under this Agreement (to the extent beneficially owned by that Finance
Party) against any obligation, whether or not matured (provided that a
Bank may only exercise rights of set off against an unmatured
obligation owed by it after an Event of Default has occurred), owed by
that Finance Party to that Borrower, regardless of the place of
payment, booking branch or currency of either obligation. If the
obligations are in different currencies, the Finance Party may convert
either obligation at a market rate of exchange in its usual course of
business for the purpose of the set-off. If either obligation is
unliquidated or unascertained, the Finance Party may, after an Event of
Default his occurred, set off in an amount estimated by it in good
faith to be the amount of that obligation. The relevant Finance Party
shall promptly notify the Company of any set off pursuant to this
Clause 28 (Set-off). Nothing in this Clause 28 (Set-off) shall be
effective to create a charge.
29. PRO RATA SHARING
29.1 REDISTRIBUTION
If any amount owing by a Borrower under this Agreement to a Finance
Party (the "RECOVERING FINANCE PARTY") is discharged by payment,
set-off or any other manner other than through the Agent in accordance
with Clause 10 (Payments) (a "RECOVERY"), then:
(a) the recovering Finance Party shall, within 3 Business Days,
notify details of the recovery to the Agent;
(b) the Agent shall determine whether the recovery is in excess of
the amount which the recovering Finance Party would have
received had the recovery
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been received by the Agent and distributed in accordance with
Clause 10 (Payments);
(c) subject to Clause 29.3 (Exceptions), the recovering Finance
Party shall, within 5 Business Days of demand by the Agent,
pay to the Agent an amount (the "REDISTRIBUTION") equal to the
excess;
(d) the Agent shall treat the redistribution as if it were a
payment by the relevant Borrower under Clause 10 (Payments)
and shall pay the redistribution to the Finance Parties (other
than the recovering Finance Party) in accordance with Clause
10.7 (Partial payments); and
(e) after payment of the full redistribution, the recovering
Finance Party will be subrogated to the portion of the claims
paid under paragraph (d) above, and the Company will owe the
recovering Finance Party a debt which is equal to the
redistribution, immediately payable and of the type originally
discharged.
29.2 REVERSAL OF REDISTRIBUTION
If under Clause 29.1 (Redistribution):
(a) a recovering Finance Party must subsequently return a
recovery, or an amount measured by reference to a recovery, to
a Borrower; and
(b) the recovering Finance Party has paid a redistribution in
relation to that recovery,
each Finance Party shall, within 3 Business Days of demand by the
recovering Finance Party through the Agent, reimburse the recovering
Finance Party all or the appropriate portion of the redistribution paid
to that Finance Party. Thereupon, the subrogation in Clause 29.1(e)
(Redistribution) will operate in reverse to the extent of the
reimbursement.
29.3 EXCEPTIONS
(a) A recovering Finance Party need not pay a redistribution to the extent
that it would not, after the payment, have a valid claim against the
relevant Borrower in the amount of the redistribution pursuant to
Clause 29.1(e) (Redistribution).
(b) Where a recovering Finance Party has received a recovery as a
consequence of the satisfaction or enforcement of a judgment obtained
in any legal action or proceedings to which it is a party, it need not
pay a redistribution to any Finance Party which (being entitled to do
so) did not join in with the recovering Finance
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Party in the legal action or proceedings, unless the recovering Finance
Party did not give prior notice of its involvement in the legal action
or proceedings to the Agent for disclosure to all the Banks.
30. SEVERABILITY
If a provision of any Finance Document is or becomes illegal, invalid
or unenforceable in any jurisdiction, that shall not affect:
(a) the legality, validity or enforceability in that jurisdiction
of any other provision of the Finance Documents; or
(b) the legality, validity or enforceability in other
jurisdictions of that or any other provision of the Finance
Documents.
31. COUNTERPARTS
This Agreement may be executed in any number of counterparts, and this
has the same effect as if the signatures on the counterparts were on a
single copy of this Agreement.
32. NOTICES
32.1 GIVING OF NOTICES
All notices or other communications under or in connection with this
Agreement shall be given in writing or by telex or facsimile. Any such
notice will be deemed to be given as follows:
(a) if in writing, when delivered;
(b) if by telex when dispatched, but only if, at the time of
transmission, the correct answerback appears at the start and
at the end of the sender's copy of the notice; and
(c) if by facsimile, when received in a legible form.
However, a notice given in accordance with the above but received on a
non-working day or after business hours in the place of receipt will
only be deemed to be given on the next working day in that place.
32.2 ADDRESSES FOR NOTICES
(a) The address, telex number and facsimile number of each Party (other
than the Agent) for all notices under or in connection with this
Agreement are:
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(i) that notified by that Party for this purpose to the Agent on
or before it becomes a Party; or
(ii) any other notified by that Party for this purpose to the Agent
by not less than five Business Days' notice.
(b) The address, telex number and facsimile number of the Agent is:
For the attention of Loans Agency Department
0 Xxxx Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Telex no: 887434
Fax no: 0000-000 0000
or such other address, telex number or facsimile number as the Agent
may notify to the other Parties for this purpose by not less than five
Business Days' notice.
(c) The Agent shall, promptly upon request from any Party, give to that
Party the address, telex number or facsimile number of any other Party
applicable at the time for the purposes of this Clause. The Agent shall
deliver a copy of any notice to a Borrower (other than the Company) to
the Company.
33. LANGUAGE
(a) Any notice given under or in connection with any Finance Document shall
be in English.
(b) All other documents provided under or in connection with any Finance
Document shall be:
(i) in English; or
(ii) if not in English, accompanied by a certified English
translation (except for the audited accounts of Deutsche Xxxxx
GmbH) and, in this case, the English translation shall prevail
unless the document is a statutory or other official document.
34. JURISDICTION
34.1 SUBMISSION
(a) For the benefit of each Finance Party, each Borrower agrees that the
courts of England have jurisdiction to settle any disputes in
connection with any Finance Document and accordingly submits to the
jurisdiction of the English courts.
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(b) Without prejudice to paragraph (a) above, Xxxxx Inc. and any other US
Borrower agrees that any New York State or Federal court sitting in
New York City shall have jurisdiction to settle any disputes in
connection with any Finance Document and accordingly submits to the
jurisdiction of those courts.
34.2 SERVICE OF PROCESS
Without prejudice to any other mode of service, each Borrower (other
than a Borrower incorporated in England and Wales):
(a) irrevocably appoints the Company as its agent for service of
process relating to any proceedings before the English courts
in connection with any Finance Document;
(b) agrees that failure by a process agent to notify the Borrower
of the process will not invalidate the proceedings concerned;
and
(c) consents to the service of process relating to any such
proceedings by prepaid posting of a copy of the process to its
address for the time being applying under Clause 32.2.
(Addresses for notices).
34.3 FORUM CONVENIENCE AND ENFORCEMENT ABROAD
Each Borrower:
(a) waives objection to the English or New York courts on grounds
of inconvenient forum or otherwise as regards proceedings in
connection with a Finance Document; and
(b) agrees that a judgment or order of an English court in
connection with a Finance Document is conclusive and binding
on it and may be enforced against it in the courts of any
other jurisdiction.
34.4 NON-EXCLUSIVITY
Nothing in this Clause 34 limits the right of a Finance Party to bring
proceedings against a Borrower in connection with any Finance Document:
(a) in any other court of competent jurisdiction; or
(b) concurrently in more than one jurisdiction.
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35. GOVERNING LAW
This Agreement is governed by English law.
This Agreement has been entered into on the date stated at the beginning of
this Agreement.
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SCHEDULE 1
BANKS AND COMMITMENTS
Banks COMMITMENTS
US$
SENIOR LEAD MANAGERS
Bankers Trust Company 60,000,000
National Westminster Bank Plc 60,000,000
Swiss Bank Corporation 60,000,000
The Bank of Tokyo, Ltd. 60,000,000
Bayerische Landesbank Girozentrale, London Branch 60,000,000
CIBC Wood Gundy Ireland Ltd 60,000,000
Commerzbank Aktiengesellschaft, London Branch 60,000,000
Den Danske Bank Aktieselskab 60,000,000
The Fuji Bank, Limited 60,000,000
Lloyds Bank Plc 60,000,000
Midland Bank plc 60,000,000
Westdeutsche Landesbank Girozentrale, London Branch 60,000,000
LEAD MANAGERS
Bank Brussels Xxxxxxx London 40,000,000
Banque Nationale de Paris London Branch 40,000,000
Barclays Bank PLC 40,000,000
Chemical Bank 40,000,000
The First National Bank of Boston 40,000,000
Mellon Bank N.A. 40,000,000
Xxxxxx Guaranty Trust Company of New York 40,000,000
The Sanwa Bank, Limited 40,000,000
Standard Chartered Bank 40,000,000
The Sumitomo Bank, Limited 40,000,000
The Toronto-Dominion Bank 40,000,000
MANAGERS
ABN AMRO Bank N.V. 20,000,000
Banca Commerciale Italiana SpA, London Branch 20,000,000
Banca Nazionale del Lavoro SpA, London Branch 20,000,000
Banco Exterior de Espana S.A. - London Branch 20,000,000
Bank of Montreal 20,000,000
The Bank of Nova Scotia 20,000,000
Bayerische Vereinsbank Aktiengesellschaft, London Branch 20,000,000
Comerica Bank 20,000,000
Credit Lyonnais 20,000,000
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Credit Suisse 20,000,000
Deutsche Bank AG London 20,000,000
Fleet Bank of Massachusetts, N.A. 20,000,000
The Mitsubishi Bank, Limited 20,000,000
Nomura Bank International plc 20,000,000
Svenska Handelsbanken (publ) 20,000,000
The Tokai Bank, Limited 20,000,000
Wachovia Bank of Georgia, N.A. 20,000,000
-------------
Total Commitments US$1,500,000,000
-------------
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SCHEDULE 2
CONDITIONS PRECEDENT DOCUMENTS
PART I
TO BE DELIVERED BEFORE THE FIRST LOAN
1. All Borrowers
A copy of the memorandum and articles of association and certificate of
incorporation or other constitutional documents of each Borrower.
2. Company
(a) A copy of a resolution of the board of directors of the Company:
(i) approving the terms of, and the transactions contemplated by,
this Agreement and resolving that it execute this Agreement
and the Fee Letters;
(ii) authorising a specified person or persons to execute this
Agreement and the Fee Letters on its behalf, and
(iii) authorising a specified person or persons, on its behalf, to
sign and/or despatch all other documents and notices to be
signed and/or despatched by it under or in connection with
this Agreement:
(b) a specimen of the signature of each person authorised by the resolution
referred to in paragraph (a) above;
(c) a certificate of a director of the Company confirming that utilisation
of the Facility in full would not cause any borrowing limit binding on
it to be exceeded; and
(d) a certificate of an authorised signatory of the Company certifying that
each copy document specified in Part I of this Schedule 2 (other than
paragraph 4 below) is correct, complete and in full force and effect as
at a date no earlier than the date of this Agreement.
3. Original Borrowers
(a) A copy of a resolution of the board of directors of Xxxxx Inc.:
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(i) approving the terms of, and the transactions contemplated by,
this Agreement and resolving that it execute this Agreement;
(ii) authorising a specified person or persons to execute this
Agreement on its behalf; and
(iii) authorising a specified person or persons, on its behalf, to
sign and/or despatch all other documents and notices to be
signed and/or despatched by it under or in connection with
this Agreement;
(b) a specimen of the signature of each person authorised by the resolution
referred to in paragraph (a) above;
(c) in respect of Deutsche Xxxxx GmbH, a legalised extract from the
Commercial Registry of Bleldeld showing that the person or persons
executing the Agreement on behalf of Deutsche Xxxxx GmbH are in fact
Geschaftsfuhreur(s) with the proper signature authority; and
(d) a certificate of a director of the relevant Borrower confirming that,
in the case of Deutsche Xxxxx GmbH, utilisation of the Facility in full
would not cause any borrowing limit binding on it to be exceeded and,
in the case of Xxxxx Inc., Xxxxx Inc. will not utilise the Facility to
the extent that it would cause any borrowing limit on it to be
exceeded.
4. Other documents
(a) A letter from the Company to Swiss Bank Corporation and from Xxxxx Inc.
to Bankers Trust Company as agents under the Existing Facilities
confirming that all amounts owing under the Existing Facilities will be
repaid or prepaid in full, and that all commitments will be cancelled
in full, on the first proposed Drawdown Date.
(b) A copy of any other authorisation or other document, opinion or
assurance which the Agent considers to be necessary or desirable in
connection with the entry into and performance of, and the transactions
contemplated by, any Finance Document or for the validity and
enforceability of any Finance Document.
5. Legal opinions
(a) A legal opinion of Xxxxx, Xxxxx. Xxxxxx, Xxxxxxx & Xxxxxxxx, legal
advisers to the Company as to U.S. law;
(b) a legal opinion of Hengeler Xxxxxxx Xxxxxxx Xxxxx, legal adviser to the
Agent as to German law; and
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(c) a legal opinion of Xxxxx & Overy, legal advisers to the Agent as to
English law, in each case, addressed to the Finance Parties.
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PART II
TO BE DELIVERED BY AN ADDITIONAL BORROWER
(a) A Borrower Accession Agreement, duly executed by the Additional
Borrower and the company;
(b) a copy of the memorandum and articles of association and certificate of
incorporation or other constitutional documents of the Additional
Borrower;
(c) a copy of a resolution of the board of directors (or equivalent) of the
Additional Borrower:
(i) approving the terms of, and the transactions contemplated by,
the Borrower Accession Agreement and resolving that it execute
the Borrower Accession Agreement;
(ii) authorising a specified person or persons to execute the
Borrower Accession Agreement on its behalf; and
(iii) authorising a specified person or persons, on its behalf, to
sign and/or despatch all other documents and notices to be
signed and/or despatched by it under or in connection with
this Agreement;
(d) a certificate of a duly authorised officer of the Additional Borrower
confirming that utilisation of the Facility in full would not cause any
borrowing limit binding on it to be exceeded;
(e) a copy of any other authorisation or other document, opinion or
assurance which the Agent (acting reasonably) considers to be necessary
in connection with the entry into and performance of, and the
transactions contemplated by, the Borrower Accession Agreement or for
the validity and enforceability of any Finance Document;
(f) a specimen of the signature of each person authorised by the resolution
referred to in paragraph (c) above;
(g) the latest audited financial statements of the Additional Borrower;
(h) a legal opinion of legal advisers to the Agent in the jurisdiction of
incorporation of the Additional Borrower, addressed to the Finance
Parties; and
(i) a certificate of an authorised signatory of the Additional Borrower
certifying that each copy document specified in paragraphs (b) and (c)
of Part II of this Schedule 2 is correct, complete and in full force
and effect as at a date no earlier than the date of the Borrower
Accession Agreement.
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SCHEDULE 3
CALCULATION OF THE MLA COST
(a) The MLA Cost for a Loan denominated in Sterling for each Interest
Period for that Loan is calculated in accordance with the following
formula:
BY + L(Y-X) + S(Y-Z) % per annum = MLA Cost
-------------------
100-(B + S)
where on the day of application of the formula:
B is the percentage of the Agent's eligible liabilities which the Bank of
England then requires the Agent to hold on a non-interest-bearing
deposit account in accordance with its cash ratio requirements;
Y is the rate at which Sterling deposits are offered by the Agent to
leading banks in the London interbank market at or about 11.00 am. on
that day for the relevant period;
L is the percentage of eligible liabilities which (as a result of the
requirements of the Bank of England) the Agent maintains as secured
money with members of the London Discount Market Association or in
certain marketable or callable securities approved by the Bank of
England, which percentage shall (in the absence of evidence that any
higher figure is appropriate) be conclusively presumed to be 5%;
X is the rate at which secured Sterling investments may be placed by the
Agent with members of the London Discount Market Association at or
about 11.00 a.m. on that day for the relevant period or if greater the
rate at which Sterling bills of exchange (of a term or equal to the
duration of the relevant period) eligible for rediscounting at the Bank
of England can be discounted in the London Discount Market at or about
11.00 am. on that day;
S is the percentage of the Agent's eligible liabilities which the Bank of
England then requires the Agent to place as a special deposit; and
Z is the interest rate per annum allowed by the Bank of England on
special deposits.
(b) For the purposes of this Schedule 3:
(i) "ELIGIBLE LIABILITIES" and "SPECIAL DEPOSITS" have the
meanings given to them it the time of application of the
formula by the Bank of England;
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(ii) "RELEVANT PERIOD" in relation to a Loan, means:
(A) if its Term is 3 months or less, its Term; or
(B) if its Term is more than 3 months, 3 months.
(c) In the application of the formula, B, Y, 1, X, S and Z are included in
the formula as figures and not as percentages, e.g. if B = 0.5% and Y =
15 %. BY is calculated as 0.5 x 15.
(d) (i) The formula is applied on the first day of each Loan.
(ii) Each amount calculated in accordance with the formula is, if
necessary, rounded upward to four decimal places.
(e) If the Agent determines that a change in circumstances has rendered, or
will render, the formula inappropriate, the Agent (after consultation
with the Banks) shall notify the Company of the manner in which the MLA
Cost will subsequently be calculated. However, only such amendments may
be made to the method of calculation as are necessary to the above
formula so as to (and only so as to) restore the position in terms of
overall return to that which prevailed before the relevant change
occurred. The manner of calculation so notified by the Agent shall, in
the absence of manifest error, be binding on all the Parties.
- 84 -
87
SCHEDULE 4
FORM OF REQUEST
To: SWISS BANK CORPORATION as Agent
From:[ ] Date:[ ]
XXXXX PLC - US$1,500,000,000 REVOLVING CREDIT AGREEMENT
DATED 29TH NOVEMBER, 1995
1. We wish to borrow a Loan as follows:
(a) Drawdown Date: [ ]
(b) Currency: [ ]
(c) Amount: [ ]
(d) Term: [ ] /alternative approved duration of Term: [ ]*
(e) Payment Instructions: [ ].
2. We confirm that each condition specified in Clause 4.3 (Further
conditions precedent) is satisfied on the date of this Request.
By:
[ ]
Authorised Signatory
--------
* Complete only if the requested Term is of an optional duration.
- 85 -
88
SCHEDULE 5
FORM OF ACCESSION DOCUMENTS
PART I
FORM OF NOVATION CERTIFICATE
To: SWISS BANK CORPORATION as Agent
From: [THE EXISTING BANK] and [THE NEW BANK] Date: [ ]
XXXXX PLC - US$1,500,000,000 REVOLVING CREDIT AGREEMENT
DATED 29TH NOVEMBER, 1995
We refer to Clause 26.3 (Procedure for novations).
1. We (the "EXISTING BANK") and [ ] (the "NEW BANK") agree to the Existing
Bank and the New Bank novating all the Existing Bank's rights and
obligations referred to in the Schedule in accordance with Clause 26.3
(Procedure for novations).
2. The specified date for the purposes of Clause 26.3(c) is [date of
novation].
3. The Facility Office and address for notices of the New Bank for the
purposes of Clause 32.2 (Addresses for notices) are set out in the
Schedule.
4. The New Bank makes its warranties under Clause 11.6 (Warranties by each
Bank) on the date of this Novation Certificate and the date in
paragraph 2 above.
5. This Novation Certificate is governed by English law.
- 86 -
89
THE SCHEDULE
RIGHTS AND OBLIGATIONS TO BE NOVATED
[Details of the rights and obligations of the Existing Bank to be novated].
[New Bank]
Facility Office Address for notices
[ ] [ ]
[Existing Bank] [New Bank]
By: By:
Date: Date:
SWISS BANK CORPORATION
as agent for and on behalf of
itself and the other Parties
By:
Date:
- 87 -
90
PART II
BORROWER ACCESSION AGREEMENT
To: SWISS BANK CORPORATION as Agent
From: [PROPOSED BORROWER] and XXXXX pic
[Date]
XXXXX PLC - US$1,500,000,000 REVOLVING CREDIT AGREEMENT
DATED 29TH NOVEMBER, 1995 (THE "CREDIT AGREEMENT")
We refer to Clause 26.4 (Additional Borrowers).
[Name of company] of [Registered Office] ( ) (the "PROPOSED BORROWER") agrees to
become an Additional Borrower and to be bound by the terms of the Credit
Agreement as an Additional Borrower in accordance with Clause 26.4 (Additional
Borrowers).
The address for notices of the Proposed Borrower for the purposes of Clause 32.2
(Addresses for notices) is:
[
]
This Agreement is governed by English law.
By:
[PROPOSED BORROWER]
Authorised Signatory
By:
XXXXX plc
Authorised Signatory
- 88 -
91
PART III
FORM OF BORROWER CESSATION NOTICE
To: SWISS BANK CORPORATION as Agent
From: [BORROWER] and XXXXX plc
[Date]
XXXXX PLC - US$1,500,000,000 REVOLVING CREDIT AGREEMENT
DATED 29TH NOVEMBER, 1995 (THE "CREDIT AGREEMENT")
We refer to Clause 26.4 (Additional Borrowers) of the Credit Agreement.
[Borrower] is under no actual payment obligation under the Credit Agreement in
its capacity as a Borrower. Accordingly, pursuant to Clause 26.4(d) of the
Credit Agreement and with effect from the date of this notice, [Borrower] shall
cease to be a Borrower under the Credit Agreement.
This notice is governed by English law.
By: By:
[BORROWER] XXXXX plc
Authorised Signatory Authorised Signatory
- 89 -
92
SCHEDULE 6
TIMETABLE
In this Schedule 6:
D-[x] = x Business Days before the relevant Drawdown Date
A = Agent
B = Bank
TIME
------------------------------------------------------
DOLLARS OR OPTIONAL XXXXX INC. XXXXX INC.
CURRENCY OTHER THAN (APPROVED (OPTIONAL
STERLING DURATION) DURATION)
(BORROWERS OTHER THAN STERLING
CLAUSE EVENT XXXXX INC.
------------ --------------------- ---------- ---------- ----------
5.1 A receives Request X-0 X-0 X-0 X-0
10.00 a.m. 3.30 p.m. 3.30 p.m. 10.00 a.m.
5.4 A notifies B's of details of Request X-0 X-0 X-0 X-0
and amount of each B's 1.00 p.m. 5.30 p.m. 5.30 p.m. 1.00 p.m.
participation
5.5(b) A receives objection by B to X-0 X-0 X-0
selection of a Term of optional 4.00 p.m. 9.30 a.m. 4.00 p.m.
duration
5.5(c) A notifies Company and B's of the X-0 X-0 D
new Term 9.30 a.m. 5.30 p.m. 9.30 a.m.
- 90 -
93
SCHEDULE 7
FACILITY OFFICES
SENIOR LEAD MANAGERS
Bankers Trust Company
0 Xxxxxx Xxxxxx
Xxxxxxxxx
Xxxxxx XX0X 0XX
Telephone: 0000-0000000
Telex: 883341
Fax: 0171-9821182
National Xxxxxxxxxxx Xxxx Xxx
000 Xxxxxxxxxxx
Xxxxxx XX0X 0XX
Telephone: 0000-0000000
Telex: 882121
Fax: 0171-3755967
(For non-US Borrowers)
Swiss Bank Corporation, London Branch
0 Xxxx Xxxxxx Xxxxxx
Xxxxxx XX0 0XX
Telephone: 0000 000 0000
Telex: 887434
Fax: 0171 711 3861
(For US Borrowers)
Swiss Bank Corporation, New York Branch
000 Xxxxxxxx
XX Xxx 000
Xxxxxx Xxxxxx Xxxxxxx
Xxx Xxxx
Xxx Xxxx 00000
- 91 -
94
Telephone: 000 000 000 0000
Telex:
Fax: 001 212 574 4176
(For non-US Borrowers)
The Bank of Tokyo, Ltd.
00/00 Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Telephone: 0000-000 0000
Telex: 946178
Fax: 0000-000 0000
(For US Borrowers)
The Bank of Tokyo, Ltd.
0000 Xxxxxx xx xxxXxxxxxxx
Xxx Xxxx,
Xxx Xxxx 00000-0000
Telephone: 000 000 000 0000
Telex:
Fax: 000 000 000 8225
Bayerische Landesbank Girozentrale
London Branch
00/00 Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Telephone: 0000-000 0000
Telex: 886437
Fax: 0000-000 0000
CIBC Wood Gundy Ireland Ltd
Ormonde House
00 Xxxxx Xxxxxx Xxxxxx
Xxxxxx 0
Xxxxxxx
Telephone: 000 0 000 0000
Telex:
Fax: 353 1 662 4371
- 00 -
00
Xxxxxxxxxxx Xxxxxxxxxxxxxxxxxx
Xxxxxx Branch
Commerzbank House
XX Xxx 000
00 Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Telephone: 0000 000 0000
Telex: 0000000/9 CBKLDN G
Fax: 0171 418 4870
Den Danske Bank Aktieselskab
00 Xxxx Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Telephone: 0000 000 0000
Telex: 896229/896220
Fax: 0171 283 9526
(For non-US Borrowers)
The Fuji Bank, Limited
River Xxxxx Xxxxx
0-00 Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Telephone: 0000 000 0000
Telex: 886352/886317FUJIBK G
Fax: 0171 588 1400
(For US Borrowers)
The Fuji Bank (Luxembourg) S.A.
00 Xxxxxx xx xx Xxxxx-Xxxxx 0000
Xxxxxxxxxx X.X. 000
0000 Xxxxxxxxxx
Telephone: 00 000 00 0000
Telex: 3213
Fax: 00 352 474688
- 93 -
96
Lloyds Bank Plc
Corporate Banking and Treasury Division
Xxxx Xxxxx
Xxxx Xxxxxx
Xxxxxxx XX0 0XX
Telephone: 0000-000-0000
Telex: 888301 LOYDLN
Fax: 0000-000 0000
Midland Bank plc
Midland Corporate Banking
00-00 Xxxxxxx
Xxxxxx XX0X 0XX
Telephone: 0000-0000000
Telex: 0000000
Fax: 0171-2604227
Westdeutsche Landesbank Girozentrale
London Branch
00 Xxxxxxxx
Xxxxxx XX0X 0XX
Telephone: 0000-0000000
Telex: 00000000
Fax: 0171-374 8546
LEAD MANAGERS
(For non-US Borrowers)
Bank Brussels Xxxxxxx London
0 Xxxxxxxxx
Xxxxxx XX0X 0XX
Telephone: 0000 0000000
Telex: 884979
Fax: 0171 247 1277
(For US Borrowers)
BBL International (UK) Limited
0 Xxxxxxxxx
Xxxxxx XX0X 0XX
- 94 -
97
Telephone: 0000 0000000
Telex: 884979
Fax: 0171 247 1277
Banque Nationale de Paris London Branch
0/00 Xxxx Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Telephone: 0000-000-0000
Telex: 883412 BNPLNX G
Fax: 0000-000 0000
Barclays Bank PLC
Xxxxxx Xxxxx
0 Xxxxx Xxxx Xxxxx
Xxxxxx XX0X
Telephone: 0000 000 0000
Telex:
Fax: 0171 696 2929
Chemical Bank
000 Xxxxxx Xxxx
Xxxxxx XX0X 0XX
Telephone: 0000 000 0000
Telex: 000 00000 CBC G
Fax: 0000-000 0000
The First National Bank of Boston
00 Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Telephone: 0000 000 0000
Telex: 886705/885125
Fax: 0171 932 9364
Mellon Bank NA
Xxxxxxxx Xxxxx
0 Xxxxxxx Xxxx
Xxxxxx XX0X 0XX
- 95 -
98
Telephone: 0000 000 0000
Telex: 885962
Fax: 0171 454 0092
Xxxxxx Guaranty Trust Company of New York
XX Xxx 000
60 Victoria Embankment
Xxxxxx XX0X 0XX
Telephone: 0000-000-0000
Telex: 896631 MGT G
Fax: 0000-000 0000
(For non-US Borrowers)
The Sanwa Bank, Limited
XX Xxx 00
Xxxx Xxxxx House
00 Xxxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Telephone: 0000 000 0000
Telex: 888350
Fax: 0171 330 5555
(For US Borrowers)
The Sanwa Bank, Limited
Georgia-Pacific Center,
Suite 4750
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx
Xxxxxxx 00000
X.X.X.
Telephone: 000 000 000-0000
Telex: ITT 0000000
Fax: 000 000 000-0000
Standard Chartered Bank
00 Xxxxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
- 96 -
99
Telephone: 0000 000 0000
Telex: 885951
Fax: 0171 280 7611
(For non-US Borrowers)
The Sumitomo Bank, Limited
Temple Court
00 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Telephone: 0000-0000000
Telex: 887667
Fax: 0171-2360049
(For US Borrowers)
The Sumitomo Bank, Limited
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
XXX
Telephone: 00 0 000 000 0000
Telex: 420515 (ITT)
Fax: 00 1 212 593-9522
The Toronto-Dominion Bank
Triton Court
00/00 Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Telephone: 0000 000 0000
Telex: 886142
Fax: 0171 638 2251
MANAGERS
ABN AMRO Bank N.V.
000 Xxxxxxxx
Xxxxxx XX0X 0XX
Telephone: 0000 000 0000
Telex: 887366
Fax: 0171 588 2975
- 97 -
100
Banca Commerciale Italiana SpA
London Branch
00 Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
(For non-US Borrowers)
Banca Nazionale del Lavoro SpA
London Branch
Xxxxxxxxxxx Xxxxx
00 Xx. Xxxx Xxx
Xxxxxx XX0X 0XX
Telephone: 0000-000 0000
Telex: 888094
Fax: 0000-000 0000
(For US Borrowers)
Banca Nazionale del Lavoro SpA
London Branch
Fitzwiliam House
London Branch
00 Xx. Xxxx Xxx
Xxxxxx XX0X 0XX
Telephone: 0000-000 0000
Telex: 888094
Fax: 0000-000 0000
(For US Borrowers)
Banca Nazionale del Lavoro SpA
00 Xxxx 00xx Xxxxxx
Xxx Xxxx
XX 00000
XXX
Telephone: 00 0 000 000 0000
Telex: 62840
Fax: 00 1 212 765 2978
(For non-US Borrowers)
Banco Exterior de Espana S.A.
0 Xxxxx Xxxxx Xxxxxx
Xxxxxx XX0X 0XX
- 98 -
101
Telephone: 0000 000 0000
Telex: 886820 BELCO G
Fax: 0171 623 3235
(For US Borrowers)
Banco Exterior de Espana S.A. - London Branch
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx
Xxx Xxxx 00000
Telephone: 000 0000000000
Telex: 0000000 BEX NYC
Fax: 00 12127554211
Bayerische Vereinsbank Aktiengesellschaft
London Branch
0 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxxx XX0X 0XX
Telephone: 0000-0000000
Telex: 889196
Fax: 0171-0000000
Comerica Bank
000 Xxxxxxxx Xxxxxx
Xxxxxxx
Xxxxxxxx
XXX 00000-0000
Telephone: 00 00000000000
Telex: 164366
Fax: 00 1 3139644765
Credit Lyonnais
00-00 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Telephone: 0000-0000000
Telex: 885479
Fax: 0171-4891559
- 99 -
102
(From 11.12.95)
Credit Lyonnais
XX Xxx 00
Xxxxxxxxx Xxxxx
0 Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Telephone: 0000-0000000
Telex: 885479
Fax: 0171-2147070
(For non-US Borrowers)
Credit Xxxxxx
Xxxx Xxxxx Xxxxxx
Xxxxxx X00 0XX
Telephone: 00000000000
Telex: 887322 CREDSU G
Fax: 01718888395
(For US Borrowers)
Credit Suisse
XX Xxx 0000
Xxxxxx Xxxxxx Xxxxxxx
Xxx Xxxx 00000
XXX
Telephone: 000 000 000 0000
Telex: 420149/420232/420491
Fax: 0012122385389
Deutsche Bank AG Xxxxxx
0 Xxxxxxxxxxx
Xxxxxx XX0X 0XX
Telephone: 00000000000
Telex: 0000000
Fax: 01719717455
(For non-US Borrowers)
Fleet Bank of Massachusetts, N.A.
00/00 Xx. Xxxxxx'x Xxxx
Xxxxxx XX0X 0XX
- 100 -
103
Telephone: 00000000000
Telex: -
Fax: 01713349456
(For US Borrowers)
Fleet Bank of Massachusetts, N.A.
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
XXX
Telephone: 00 0 0000000000
Telex: -
Fax: 00 16173461679
The Mitsubishi Bank, Limited
0 Xxxxxxxxx
Xxxxxx XX0X 0XX
Telephone: 00000000000
Telex: 8958931 BISHBK G
Fax: 01713340140
Nomura Bank International plc
Xxxxxx Xxxxx
0 Xx. Xxxxxx'x le Grand
Xxxxxx XX0X 0XX
Telephone: 00000000000
Telex: 0000000/4 NBI G
Fax: 0171-626-0851
Svenska Handelsbanken (publ)
Xxxxxxx Xxxxx
0-0 Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Telephone: 00000000000
Telex: 894716
Fax: 01713290654
- 101 -
104
(For non-US Borrowers)
The Tokai Bank, Limited
Xxx Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Telephone: 00000000000
Telex: 887375
Fax: 01716381144
(For XX Xxxxxxxxx)
Xxx Xxxxx Xxxx, Xxxxxxx
Xxxx Xxxxxx Xxxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx
XX 00000
XXX
Telephone: 00 00000000000
Telex: 422857
Fax: 00 12127542153
Wachovia Bank of Georgia, N.A.
International Division
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx
Xxxxxxx 00000
XXX
Telephone: 000-000-000-0000
Telex: -
Fax: 000-000-000-0000
- 102 -
105
SIGNATORIES
COMPANY
XXXXX plc
/s/ X.X. XXXXXXXX
---------------------------
By: X.X. XXXXXXXX
ORIGINAL BORROWERS:
XXXXX INC.
/s/ X.X. XXXXXXXX
---------------------------
By: X.X. XXXXXXXX
DEUTSCHE XXXXX GmbH
/s/ X.X. XXXXXXXX
---------------------------
By: X.X. XXXXXXXX
ARRANGERS
BANKERS TRUST COMPANY
/s/ X.X. Xxxxx
---------------------------
By: X.X. Xxxxx
NATWEST CAPITAL MARKETS LIMITED
/s/ M.W.A. VENN
---------------------------
By: M.W.A. VENN
SBC WARBURG, A DIVISION OF SWISS BANK CORPORATION
/s/ D.M.M. XXXXXX
---------------------------
By: D.M.M. XXXXXX
BANKS
BANKERS TRUST COMPANY
/s/ X.X. XXXXX
---------------------------
By: X.X. XXXXX
- 103 -
106
NATIONAL WESTMINSTER BANK PLC
/s/ XXXXX X. XXXXX
---------------------------
By: XXXXX X. XXXXX
SWISS BANK CORPORATION
/s/ D.M.M. XXXXXX
---------------------------
By: D.M.M. XXXXXX
THE BANK OF TOKYO, LTD.
/s/ XXXXXX X. XXX
---------------------------
By: XXXXXX X. XXX
BAYERISCHE LANDESBANK GIROZENTRALE, LONDON BRANCH
/s/ XXXXXXXX XXXXXX /s/ XXXXXXXX XXXXXXX
--------------------------- -------------------------
By: XXXXXXXX XXXXXX XXXXXXXX XXXXXXX
CIBC WOOD GUNDY IRELAND LTD
/s/ XXX XXXXX
---------------------------
By: XXX XXXXX (BY POWER OF ATTORNEY)
COMMERZBANK AKTIENGESELLSCHAFT, LONDON BRANCH
/s/ XXX XXXXX
---------------------------
By: XXX XXXXX (BY POWER OF ATTORNEY)
DEN DANSKE BANK AKTIESELSKAB
/s/ XXX XXXXX
---------------------------
By: XXX XXXXX (BY POWER OF ATTORNEY)
THE FUJI BANK, LIMITED
/s/ XXXXX XXXXXX
---------------------------
By: XXXXX XXXXXX
FUJI BANK (LUXEMBOURG) S.A.
/s/ XXXXX XXXXXX
---------------------------
By: XXXXX XXXXXX
LLOYDS BANK PLC
/s/ XXXXXXX X.X. XXXXX
---------------------------
By: XXXXXXX X.X. XXXXX
- 104 -
107
MIDLAND BANK PLC
/s/ XXXXXX XXXXX
---------------------------
By: XXXXXX XXXXX
WESTDEUTSCHE LANDESBANK GIROZENTRALE, LONDON BRANCH
/s/ XXXXX X.X. XXXXXX /s/ XXXXXXX
--------------------------- ---------------------------
By: XXXXX D.C. XXXXXX XXXXXXX
BANK BRUSSELS XXXXXXX LONDON
/s/ XXX XXXXX
---------------------------
By: XXX XXXXX (BY POWER OF ATTORNEY)
BBL INTERNATIONAL (UK) LIMITED
/s/ XXX XXXXX
---------------------------
By: XXX XXXXX (BY POWER OF ATTORNEY)
BANQUE NATIONALE DE PARIS LONDON BRANCH
/s/ XXX XXXXX
---------------------------
By: XXX XXXXX (BY POWER OF ATTORNEY)
BARCLAYS BANK PLC
/s/ A.H.F. XXXXX
---------------------------
By: A.H.F. XXXXX
CHEMICAL BANK
/s/ XXXXX X. XXXXXX
---------------------------
By: XXXXX X. XXXXXX
THE FIRST NATIONAL BANK OF BOSTON
/s/ XXXXXXX X. XXXXXXXX
---------------------------
By: XXXXXXX X. XXXXXXXX
MELLON BANK N.A.
/s/ XXXXX X.X. XXXXXXXX
---------------------------
By: XXXXX X.X. BRACKLEY
MORGAN GUARANTY TRUT COMPANY OF NEW YORK
/s/ XXXXXX X. XXXXX
---------------------------
By: XXXXXX X. XXXXX
- 105 -
108
THE SANWA BANK, LIMITED
/s/ X.X. XXXXX
---------------------------
By: X.X. XXXXX
STANDARD CHARTERED BANK
/s/ XXX XXXXX
---------------------------
By: XXX XXXXX (BY POWER OF ATTORNEY)
THE SUMITOMO BANK, LIMITED
/s/ M.D.R. XXXXX
---------------------------
By: M.D.R. XXXXX
THE TORONTO-DOMINION BANK
/s/ X.X. XXXX
---------------------------
By: X.X. XXXX
ABN AMRO BANK N.V.
/s/ X.X. XXXXXXXXX
---------------------------
By: X.X. XXXXXXXXX
BANCA COMMERCIALE ITALIANA SPA
/s/ C.A. PIPER
---------------------------
By: C.A. PIPER
BANCA NAZIONALE DEL LAVORO SPA
/s/ X. XXXXX /s/ XXXX XXXXXXXX
--------------------------- ---------------------------
By: X. XXXXX XXXX XXXXXXXX
BANCO EXTERIOR DE ESPANA S.A. - LONDON BRANCH
/s/ XXX XXXXX
---------------------------
By: XXX XXXXX (BY POWER OF ATTORNEY)
BANK OF MONTREAL
/s/ X. XXXXXXXX
---------------------------
By: X. XXXXXXXX
THE BANK OF NOVA SCOTIA
/s/ X. XXXXX /s/ X. XXXXX
--------------------------- ---------------------------
By: X. XXXXX X. XXXXX
- 106 -
109
BAYERISCHE VEREINSBANK AKTIENGESELLSCHAFT, LONDON BRANCH
/s/ X. XXXXX
---------------------------
By: X. XXXXX
COMERICA BANK
/s/ XXX XXXXX
---------------------------
By: XXX XXXXX (BY POWER OF ATTORNEY)
CREDIT LYONNAIS
/s/ X.X. XXXXX
---------------------------
By: X.X. XXXXX
CREDIT SUISSE
/s/ X. XXXXXX /s/ XXXXXXX XXXXXX
--------------------------- ---------------------------
By: X. XXXXXX XXXXXXX XXXXXX
DEUTSCHE BANK AG LONDON
/s/ X.X. XXXXXXXXX
---------------------------
By: X.X. XXXXXXXXX
FLEET BANK OF MASSACHUSETTS, N.A.
/s/ X.X. XXXXX
---------------------------
By: X.X. XXXXX
THE MITSUBISHI BANK, LIMITED
/s/ XXXXX XXXXXXX
---------------------------
By: XXXXX XXXXXXX
NOMURA BANK INTERNATIONAL PLC
/s/ XXXXX XXXXXX
---------------------------
By: XXXXX XXXXXX
SVENSA HANDELSBANKEN (PUBL)
/s/ XXXXX XXXXXXX /s/ XXXX XXXXXXXXXX
--------------------------- ---------------------------
By: XXXXX XXXXXXX XXXX XXXXXXXXXX
- 107 -
110
THE TOKAI BANK, LIMITED
/s/ XXXXX XXXXXX
---------------------------
By: XXXXX XXXXXX
WACHOVIA BANK OF GEORGIA, N.A.
/s/ XXXXXX X. XXXXXXXXX
---------------------------
By: XXXXXX X. XXXXXXXXX
AGENT
SWISS BANK CORPORATION
/s/ D.M.M. XXXXXX /s/ XXX XXXXX
--------------------------- ---------------------------
By: D.M.M. XXXXXX XXX XXXXX
- 108 -
