FACILITY AGREEMENT
Dated 5th November, 1995
1,100,000,000 pounds
TERM LOAN FACILITIES
150,000,000 pounds
REVOLVING CREDIT FACILITY
Between
CSW INVESTMENTS
CSW (UK) PLC
as Borrowers and Guarantors
CITIBANK INTERNATIONAL PLC
CREDIT SUISSE
UNION BANK OF SWITZERLAND
as Arrangers
CITIBANK, N.A.
CREDIT SUISSE
UNION BANK OF SWITZERLAND
as Original Banks
CREDIT SUISSE
as Facility Agent and Security Agent
XXXXX & XXXXX
London
Ref. B3:47631.5
CONTENTS
Clause Page
1. Interpretation 1
2. Facilities and Related Matters 21
3. Purpose and Responsibility 24
4. Conditions Precendent 25
5. Advances 26
6. The Xxxx Facility 27
7. Cancellation of Commitments 31
8. Repayment 32
9. Prepayment 32
10. Interest Periods 33
11. Interest 35
12. Payments 36
13. Taxes 38
14. Market Disruption 40
15. Increased Costs 42
16. Illegality 44
17. Mitigation 45
18. Guarantee 46
19. Additional Borrowers 49
20. Representations and Warranties 49
21. Undertakings 53
22. Financial Ratios 68
23. Default 69
24. Indemnities 76
25. Agents, Arrangers and Banks 78
26. Fees, Expenses and Stamp Taxes 83
27. Waivers, Remedies Cumulative 85
28. Notices 85
29. Assignments, Transfers and Substitutions 86
30. Set-Off and Redistribution 90
31. Governing Law and Jurisdiction 91
32. Confidentiality 92
33. Miscellaneous 93
Schedules
A. Notice Details for Borrower and Agents 94
X. Xxxxx' Commitments and Notice Details 97
C. Forms of Request 98
D. Substitution Certificate 101
E. Calculation of Additional Cost 104
F. Accession Agreement 106
G. Documentary Conditions Precedent 109
H. Form of Xxxx 110
I. Form of Power of Attorney 111
Signatories 113
THIS FACILITY AGREEMENT is dated the 5th November, 1995 and made BETWEEN:-
(1) CSW INVESTMENTS a company incorporated in England and Wales
(No. 3123865) ( the "Company");
(2) CSW (UK) PLC a company incorporated in England and Wales
(No. 3123442) ("Bidco");
(3) CITIBANK INTERNATIONAL PLC, CREDIT SUISSE and UNION BANK OF
SWITZERLAND as Arrangers (in this capacity the "Arrangers");
(4) CITIBANK, N.A., CREDIT SUISSE and UNION BANK OF SWITZERLAND
as original lenders (in this capacity the "Original Banks");
(5) CREDIT SUISSE as facility agent for the Banks (in this
capacity the "Facility Agent"); and
(6) CREDIT SUISSE as security agent and trustee for the Banks
(in this capacity the "Security Agent").
WHEREAS pursuant to arrangements made by the Arrangers and upon
and subject to the terms of this Agreement, the Original Banks
(as defined above) have agreed to make available term loan
facilities aggregating 1,100,000,000 pounds to the Company and a
revolving credit and bills acceptance facility of 150,000,000
pounds to the Borrowers.
IT IS AGREED as follows:-
1. INTERPRETATION
1.1 Defined Terms
In this Agreement:-
"Accession Agreement" means an agreement substantially in
the form of Schedule F made pursuant to Clause 19;
"Accounting Date" means each 30th June, 30th September, 31st
December and 31st March, falling after the date of this
Agreement (or, where contemplated by Clauses 21.2(a)(vii)
and 22.2, up to one year prior to the date of this
Agreement), save as any such date may be adjusted forwards
or backwards with the agreement of the Facility Agent to
avoid an Accounting Date falling on a day which is not a
Business Day and/or to ensure that all Accounting Dates fall
on the same day of the relevant weeks.
"Accounting Period" means any period of approximately three
months or one year ending on an Accounting Date for which
Accounts are required to be prepared for the purposes of
this Agreement, including pro forma Accounting Periods as
contemplated in Clauses 21.2(a)(vii) and 22.2.
"Accounts" means from time to time:-
(a) the latest audited consolidated annual accounts of the
Group;
2
(b) the latest unaudited consolidated quarterly accounts of
the Group; and
(c) any other audited or unaudited consolidated or
unconsolidated accounts (if any) of the Group or any
member thereof (including without limitation, the pro
forma accounts referred to in Clause 21.2(a)(vii)),
delivered or required to be delivered to the Facility Agent
pursuant to this Agreement (together with any letter
applicable thereto delivered to the Facility Agent pursuant
to Clause 21.2(e)), or such of the foregoing as the context
requires.
"Act" means the Electricity Xxx 0000 and, unless the
contract otherwise requires, all subordinate legislation
made pursuant thereto.
"Additional Borrower" means the Target upon it becoming, and
any other entity which becomes, party to this Agreement as a
Borrower pursuant to an Accession Agreement.
"Additional Cost" in relation to each Advance or overdue
amount means, for the Interest Period relating to that
Advance or overdue amount, the cost as calculated by the
Facility Agent in accordance with Schedule E imputed to each
Bank participating in such Advance or overdue amount of
compliance with the Mandatory Liquid Assets requirements of
the Bank of England during that Interest Period, expressed
as a percentage rate per annum.
"Adjusted Capital and Reserves" means the amount (including
any share premium) for the time being paid up or credited as
paid up on the issued share capital of the Company;
plus the outstanding amount of any Subordinated Debt;
plus the amount standing to the credit (or, as the case
may be, minus the amount standing to the debit) of the
capital and revenue reserves of the Group;
plus any amount standing to the credit or minus any
amount standing to the debit of the consolidated profit
and loss account of the Group;
plus the amount of goodwill arising upon and in respect
of the acquisition of the Shares pursuant to the Offer;
minus any distribution declared or made by the Company
or any of its Subsidiaries (other than to another
member of the Group) out of profits included within
reserves to the extent that those reserves have not
already been reduced on account thereof;
minus amounts attributable to the interests (if any) of
outside holders of issued share capital in any member
of the Group other than the Company itself;
and for the purposes of the foregoing, no item shall be
effectively deducted or added more than once, all items
shall be calculated on a consolidated basis and (subject
only as may be required in order to reflect the express
inclusion or exclusion of items as specified in this
definition) in accordance with the Applicable Accounting
Principles and, where the calculation is being made as at
the end of any Accounting Period shall be determined from
the balance sheet forming part of the Accounts for that
Accounting Period.
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"Advance" means the principal amount of each borrowing under
this Agreement from the Tranche 1 Commitments (a "Tranche 1
Advance") or the Tranche 2 Commitments (a "Tranche 2
Advance") or the Tranche 3 Commitments (a "Tranche 3
Advance") or, in each case, the principal amount of such
borrowing outstanding from time to time.
"Affiliate" means, in relation to a body corporate, any of
its Holding Companies or Subsidiaries or any other
Subsidiary of any of its Holding Companies.
"Agent" means:-
(a) when designated "Facility", Credit Suisse or any of its
successors pursuant to Clause 25.14;
(b) when designated "Security", Credit Suisse or any of its
successors pursuant to Clause 25.14 and any
corresponding provision of any Security Document; and
(c) without any such designation, the Facility Agent or the
Security Agent, as the context requires.
"Announcement Date" means the date on which the Press
Release is issued.
"Applicable Accounting Principles" means accounting
principles and practices, which at the date hereof are
generally accepted in the United Kingdom and approved by the
Institute of Chartered Accountants of England and Wales and
which are consistent with the accounting principles and
practices applied in the preparation of the Base Financial
Statements, and any variation to such accounting principles
and practices which is not material or, if material, has
been agreed in writing by the Majority Banks.
"Applicable Taxes" has the meaning given to it in Clause
13.1.
"Auditors" means a firm of independent public accountants of
international standing recognised and authorised by the
Institute of Chartered Accountants of England and Wales
which is appointed by the Company to audit the consolidated
annual accounts of the Company.
"Authorised Signatory" in relation to any Obligor and any
communication to be made or document to be executed or
certified by that Obligor means, at any time, any person:-
(a) who is at such time duly authorised by a resolution of
the board of directors of that Obligor or by virtue of
his appointment by that Obligor to a particular office
to make that communication or to execute or certify
that document on behalf of that Obligor and in respect
of whom the Facility Agent has received a certificate
of a director or the secretary of that Obligor setting
out the name and signature of that person and
confirming that person's authority so to act; and
(b) in respect of whom no notice has been received by the
Facility Agent from that Obligor to the effect that
that person is no longer an Authorised Signatory for
that Obligor.
"Available Facility Amount" at any time in respect of the
Tranche 3 Facility means the amount of the Tranche 3
Commitments, less the amount of the outstanding Tranche 3
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Utilisations at such time taking into account any Tranche 3
Utilisations scheduled to be made, repaid or prepaid by
assuming that the same occurs when due.
"Availability Period" means the period from opening of
business in London on the date of this Agreement to:-
(a) when designated "Tranche 1/2", close of business in
London on whichever is the earlier of (i) the date 180
days after the Announcement Date, (ii) the date falling
three months after the Unconditional Date, and (iii)
the date 200 days after the date hereof;
(b) when designated "Tranche 3", close of business in
London on whichever is the earlier of (i) (if no
Tranche 1 Advance and no Tranche 2 Advance is drawn at
all) the expiry of the Tranche 1/2 Availability Period,
and (ii) the fifth anniversary of the Unconditional
Date;
or in either case such later date as all the Banks may agree
in writing on or after the date hereof.
"Bank" means each of the following:-
(a) each bank whose name is set out in Schedule B;
(b) each bank to which rights and/or obligations under this
Agreement are assigned or transferred pursuant to
Clause 29 or which assumes rights and obligations
pursuant to a Substitution Certificate; and
(c) any successor or successors in title to any of the
foregoing,
provided that upon (i) termination in full of all the
Commitments of any Bank, and (ii) irrevocable payment in
full of all amounts which may be or become payable to such
Bank under the Finance Documents, such Bank shall not be
regarded as being a Bank for the purposes of determining
whether any provision of any of the Finance Documents
requiring consultation with or the consent or approval of or
instructions from the Banks or any of them or the Majority
Banks has been complied with.
"Base Financial Statements" means the audited annual
consolidated accounts of the Target for and as at the end of
the financial year of the Target ended 31st March, 1995.
"Xxxx" means a Xxxxxxxx xxxx of exchange issued pursuant to
the terms of this Agreement substantially in the form of
Schedule H.
"Borrower" means the Company, Bidco and each Additional
Borrower.
"Borrowing" means any indebtedness for, or for interest or
other charges relating to, or otherwise in respect of or
pursuant to:-
(a) moneys borrowed or raised, including, without
limitation, monies raised by the sale of receivables or
other financial assets on terms (and to the extent)
that recourse may be had to the vendor in the event of
non-payment of such receivables or financial assets
when due and monies raised under acceptance credit
facilities and through the issue of bonds, notes,
5
debentures, bills, loan stocks and other debt
securities (including any debt security convertible,
but not at the relevant time converted, into share
capital), provided that the Subordinated Debt (if any)
shall not constitute a Borrowing;
(b) the acquisition cost of assets or services to the
extent payable on deferred payment terms after the time
of acquisition or possession thereof by the party
liable (whether or not evidenced by any bond, note,
debenture, loan stock or other debt security),
excluding (i) retentions which are normal in the trade
concerned and not entered into primarily as a means of
raising finance, (ii) any payment relating to
construction works or the acquisition of fixed assets
which will become payable only upon fulfilment of
conditions relating to or comprising completion or
commissioning of certain stages in such works or in the
supply programme or the granting of any planning
permission for such works or fixed assets and which has
not yet become payable by reason of the non-fulfilment
of any such condition, and (iii) any such cost payable
on deferred payment terms which are normal in the
business concerned and not entered into primarily as a
means of raising finance, and which do not involve any
deferral of payment of any sum for more than six
months;
(c) moneys received in consideration for the supply of
goods and/or services to the extent received more than
six months before the due date for such supply (but
excluding any liability in respect of bona fide advance
payments and deposits received from customers in the
ordinary course of trade);
(d) instalments under conditional sale agreements entered
into primarily as a method of raising finance;
(e) payments under leases (whether in respect of land,
machinery, equipment or otherwise) and payments under
hire purchase agreements and similar agreements and
instruments, in each case where such leases, agreements
or instruments are treated as finance leases in
accordance with the Applicable Accounting Principles;
(f) (i) any guarantee, indemnity, letter of credit or
other legally binding instrument to
assure payment of, or against loss in respect of
non-payment of, any of the indebtedness specified
in this definition and any counter-indemnity in
respect of any thereof; and/or
(ii) any legally binding agreement or other instrument
entered into in connection with any of the
indebtedness specified in this definition
requiring, or giving any person the right
(contingently or otherwise) to require, that any
other person invest in, make advances to, purchase
assets of or maintain the solvency or financial
condition of any other person;
(g) any interest rate and/or currency swap, and any other
interest or currency protection, hedging or financial
futures transaction or arrangement;
(h) transactions which involve or have the commercial
effect of the borrowing of commodities as part of an
arrangement for or in substitution for the raising of
finance, the value of indebtedness concerned for this
purpose being the sum which must be paid and/or the
value in money terms of the commodities which must be
delivered by the "borrower" to, or to the order of, the
"lender";
6
provided that in computing an amount of Borrowings of any
person or persons for the purposes of the definition of
Consolidated Net Total Borrowings in Clause 1.1 or for the
purposes of Clause 21.4(a) double counting shall be avoided
and:-
(i) any interest, dividends, commission, fees or other like
financing charges, and any item falling within
paragraph (g), shall be excluded, save in each case to
the extent capitalised or more than 15 days overdue for
payment;
(ii) in respect of any bonds, notes, debentures, loan stocks
and/or other debt securities issued at a discount or
redeemable at a premium and constituting a Borrowing,
the issue price thereof, together with any applicable
discount or premium recognised or required by the
Applicable Accounting Principles to be recognised at
the time of calculation (other than amounts required by
the Applicable Accounting Principles to be accounted
for as interest) in Accounts of the relevant person
(were any then to be prepared), shall be included;
(iii) in respect of paragraphs (d) and (e) (but in the
case of paragraph (d), only where no interest or
similar charge is charged), only the principal amount
thereof as determined by the Applicable Accounting
Principles or (in the case of paragraph (e)) the
capitalised value (as so determined) of any items
falling thereunder shall be included;
(iv) any item falling within paragraph (f) which is in
respect of any sum excluded by item (i) or (iii) of
this proviso shall be excluded; and
(v) any item falling within paragraph (f)(ii) shall be
included only to the extent that the same has been or
(in accordance with the Applicable Accounting
Principles) ought to be given a value in the latest or
next Accounts, or in any notes to those Accounts.
"Business Day" means a day (not being a Saturday or Sunday)
on which banks and foreign exchange markets are open for
business in London.
"CSW" means Central and South West Corporation and/or any
wholly owned Subsidiary or wholly-owned Subsidiaries
thereof.
"Chief Financial Officer" means the finance director of the
Company from time to time or in his absence his deputy
(being an Authorised Signatory of the Company).
"Code" means The City Code on Takeovers and Mergers.
"Commitment" in relation to a Bank means an amount appearing
and designated as such against that Bank's name in Schedule
B or in the Substitution Certificate or other document by
which it became party to or acquired rights under this
Agreement (being a "Tranche 1 Commitment" or a "Tranche 2
Commitment" or a "Tranche 3 Commitment" as therein
indicated), in each case as reduced or increased by
substitution or transfer pursuant to Clause 29 and any
Substitution Certificates to which such Bank is party, and
to the extent not cancelled, reduced or terminated under
this Agreement.
"Consolidated EBITDA" for any period comprising an annual
Accounting Period of the Company or four consecutive
quarterly Accounting Periods (including, where contemplated
7
by Clauses 21.2(a)(vii) and 22.2, pro forma Accounting
Periods) of the Company (taken together as one period) means
the profit of the Group for such period:
before deducting all depreciation and other
amortisation (including, without limitation,
amortisation of goodwill arising from and upon the
acquisition of the Shares and amortisation of Offer
Costs in accordance with Financial Reporting Standard 4
issued by the Accounting Standards Board);
before taking into account all Extraordinary Items
(whether positive or negative) but after taking into
account all Exceptional Items (whether positive or
negative);
before deducting advanced corporation tax, mainstream
corporation tax and their equivalents in any relevant
jurisdiction;
before taking into account Consolidated Total Interest
Payable for such period;
before deducting any Offer Costs;
after deducting any gain over book value arising in
favour of the Group on the sale, lease or other
disposal of any asset (other than on the sale of
trading stock) during such period and any gain arising
on revaluation of any asset during such period, in each
case to the extent that it would otherwise be taken
into account, whether as an Exceptional Item or
otherwise;
and for the purposes of the foregoing no item shall be
effectively deducted or credited more than once in this
calculation, all items shall be determined on a consolidated
basis and (subject only as may be required in order to
reflect the express inclusion or exclusion of items as
specified in this definition) in accordance with the
Applicable Accounting Principles and as determined from the
consolidated Accounts of the Group for such annual
Accounting Period or for the relevant Accounting Periods
falling within such period.
"Consolidated Net Total Borrowings" at any time means the
aggregate at that time of the Borrowings of the members of
the Group from sources external to the Group (giving effect
to the proviso to the definition of Borrowings in
Clause 1.1.),
plus (to the extent not otherwise included) the amount of
any actual or contingent liability of any member of the
Group (a) for Borrowings at that time of any person in which
any member of the Group has an ownership interest or (b) to
provide funds by loan, subscription for share capital or
otherwise to any person in which any member of the Group has
an ownership interest;
less the cash in hand and cash equivalents of the members of
the Group at that time;
less the aggregate amount of any premium over face value
arising with respect to certain bonds issued by the Target
prior to the date hereof,
calculated on a consolidated basis and (subject only as may
be required in order to reflect the express inclusion or
exclusion of items as specified herein and/or in the
definition of Borrowings in Clause 1.1) in accordance with
the Applicable Accounting Principles and, where the
calculation is being made as at the end of any Accounting
Period for which a consolidated balance sheet of the Group
8
has been delivered to the Facility Agent, as shown in that
balance sheet.
"Consolidated Total Interest Payable" for any period
comprising an annual Accounting Period of the Company or
four consecutive quarterly Accounting Periods (including,
where contemplated by Clauses 21.2(a)(vii) and 22.2, pro
forma Accounting Periods) of the Company (taken together as
one period) means the Interest accrued during such period as
an obligation of any member or members of the Group (whether
or not paid or capitalised during or deferred for payment
after such period) adjusted to take account of any amount
constituting Interest receivable by any members of the Group
under interest rate and/or currency hedging agreements or
instruments under which all parties are in compliance with
their payment and other material obligations, all determined
on a consolidated basis and (subject only as may be required
in order to reflect the express inclusion or exclusion of
items as specified in this definition) in accordance with
the Applicable Accounting Principles and as shown in the
consolidated Accounts of the Group for such annual
Accounting Period or for the Accounting Periods falling
within such period.
"Dangerous Substance" means any radioactive emissions,
noise, any natural or artificial substance (whether in the
form of a solid, liquid, gas or vapour) the generation,
transportation, storage, treatment, use or disposal of which
(whether alone or in combination with any other substance)
including (without limitation) any controlled, special,
hazardous, toxic, radioactive or dangerous substance or
waste, gives rise to a risk of causing harm to man or any
other living organism or damaging the Environment or public
health or welfare.
"Default" means (a) any Event of Default or (b) any event
which, with the giving of notice and/or the expiry of any
cure period and/or fulfilment of any other condition (apart
from the mere occurrence of such event) stated in any
Finance Document would be or become an Event of Default,
provided that any such event which by reason of express
provisions in any Finance Document requires the satisfaction
of a condition as to materiality before it may become an
Event of Default shall not be a Default unless that
condition is satisfied.
"Director General" means the person appointed from time to
time by the Secretary of State to hold office as the
Director General of Electricity Supply for the purpose of
the Act.
"EBDR" means the rate, as determined by the Facility Agent
at or about 11.00 a.m. on the Utilisation Date for a
Utilisation by way of a Xxxx, at which Eligible Bills of an
equivalent tenor to such Xxxx can be discounted in the
London discount market at or about that time.
"Eligible Xxxx" means a Xxxxxxxx Xxxx of exchange eligible
for rediscounting at the Bank of England.
"Encumbrance" means any standard security, assignation in
security, bond and floating charge, mortgage, pledge, lien,
charge, assignment for the purpose of providing security,
hypothecation, right in security, security interest or trust
arrangement for the purpose of providing security, and any
other security agreement or other arrangement having the
effect of providing security (including, without limitation,
the deposit of monies or property with a person with the
primary intention of affording such person a right of set-
off or lien).
"Environment" means all, or any of, the following media, the
air (including, without limitation, the air within buildings
and the air within other natural or man-made structures
above or below ground), water (including, without
9
limitation, ground and surface water) and land (including,
without limitation, surface and sub-surface soil).
"Environmental Claim" means any claim by any person:
(a) in respect of any loss or liability suffered or
incurred by that person as a result of or in connection
with any violation of Environmental Law; or
(b) that arises as a result of or in connection with
Environmental Contamination and that could give rise to
any remedy or penalty (whether interim or final) that
may be enforced or assessed by private or public legal
action or administrative order or proceedings,
including without limitation, any such claim arising
from injury to persons, property or natural resources.
"Environmental Contamination" means each of the following
and their consequences:
(a) any release, emission, leakage or spillage of any
Dangerous Substance at or from any site owned, occupied
or used by any member of the Group into any part of the
Environment; or
(b) any accident, fire, explosion or sudden event at any
site owned, occupied or used by any member of the Group
which is directly or indirectly caused by or
attributable to any Dangerous Substance; or
(c) any other pollution of the Environment.
"Environmental Law" means all applicable laws (including,
without limitation, common law), regulations, directing
codes of practice, circulars, guidance notices and the like
having legal effect (whether in the United Kingdom or
elsewhere) concerning pollution or the protection of human
health, the Environment, the conditions of the work place or
the generation, transportation, storage, treatment or
disposal of Dangerous Substances.
"Environmental Licence" means any permit, licence,
authorisation, consent or other approval required by any
Environmental Law.
"Event of Default" means, subject to Clause 23.3, any of
the events specified in Clause 23.1.
"Exceptional Items" has the meaning given to it in Financial
Reporting Standard 3 issued by the Accounting Standards
Board (as in force at the date hereof), but shall exclude
any items falling within the definition of Extraordinary
Items.
"Extraordinary Items" has the meaning given to it in
Financial Reporting Standard 3 issued by the Accounting
Standards Board but in addition shall include those items
listed in paragraph 20 thereof.
"Facility" means:
(a) when designated "Tranche 1", the term loan facility
referred to in Clause 2.1(a);
(b) when designated "Tranche 2", the term loan facility
referred to in Clause 2.1(b);
10
(c) when designated "Tranche 3", the revolving credit and
xxxx acceptance facility referred to in Clause 2.1(c);
(d) without any such designation, the Tranche 1 Facility,
the Tranche 2 Facility or the Tranche 3 Facility, as
the context requires.
"Facility Office" in relation to a Bank means:-
(a) the office of that Bank in the United Kingdom whose
address appears under its name in Schedule B or is
specified for this purpose in the schedule to the
Substitution Certificate or in any other document by
which such Bank became party to or acquired rights
under this Agreement; and/or
(b) any (and each) other office in the United Kingdom
notified by that Bank to the Facility Agent in
accordance with Clause 29.6 as the office through which
that Bank will participate in the Facilities or any of
them.
"Finance Documents" means this Agreement, the Security
Documents, any Xxxx, the Intercreditor Agreement and any
other document designated as such by the Facility Agent and
the Company together.
"Finance Party" means each Arranger, each Bank, the Security
Agent and the Facility Agent (together the "Finance
Parties").
"Grid Shares" means shares in the capital of The National
Grid Holding plc beneficially owned by the Target at the
date hereof.
"Group" means the Company and its Subsidiaries from time to
time.
"Guarantor" means each of the Company and Bidco.
"Holding Company" means, in relation to a body corporate,
any other body corporate of which it is a Subsidiary.
"Information Memorandum" means an information memorandum
relating to the Group as, when and if agreed between the
Company and the Arrangers for use in the syndication of the
Facilities.
"Intercreditor Agreement" means an agreement in the agreed
form made or to be made between the Company, the Finance
Parties and the creditors from time to time for any
Subordinated Debt.
"Interest" means:
(a) interest and amounts in the nature of interest accrued
(including, without limitation, the interest elements
of finance leases);
(b) prepayment penalties or premiums incurred in repaying
or prepaying any Borrowing;
11
(c) discount fees and acceptance fees payable or deducted
in respect of any Borrowing (including all fees payable
in connection with any letter of credit, guarantee or
acceptance); and
(d) any other costs, expenses and deductions of the like
effect (including, without limitation, the interest
element of finance leases) and any net payment (or, if
appropriate in the context, receipt) under any interest
rate hedging agreement or instrument, taking into
account any premiums payable for the same and the
interest element of any net payment (plus or minus any
accrued exchange gains or losses) under any currency
hedging instrument or arrangement and dividends.
For the avoidance of doubt, "Interest" includes commitment,
utilisation and non-utilisation fees (including, without
limitation, those payable hereunder) but excludes agent's
and front-end, management, arrangement and participation
fees with respect to any Borrowing (including, without
limitation, those payable hereunder) and any up-front
premium or front-end fee payable pursuant to any interest
rate hedging agreement or instrument.
"Interest Date" means, in relation to any Advance or any
overdue amount, the last day of an Interest Period relating
thereto.
"Interest Period" means, in relation to any Advance or Xxxx,
each (or the) period determined in accordance with Clause 10
or Clause 6.2(e) respectively, and, in relation to any
overdue amount, each period determined in accordance with
Clause 11.3.
"LIBOR" in relation to any Advance for any Interest Period
relating thereto, means the arithmetic mean (rounded upward,
if necessary, to four decimal places) of the respective
rates, as supplied to the Facility Agent at its request,
quoted by the Reference Banks to leading banks in the
ordinary course of business in the London Interbank Market
at or about 11.00 a.m. on the first day of such Interest
Period for the offering of deposits in the currency of such
Advance for the same period as such Interest Period,
provided that if any of the Reference Banks shall be unable
or otherwise fails so to supply such offered rate by 1.00
p.m. on the required date, "LIBOR" for the relevant Interest
Period shall be determined, on the basis of the quotations
of the remaining Reference Banks.
"Licence" means a public electricity supply licence held by
a member of the Group and issued pursuant to Section 6(1) of
the Act, as modified or supplemented from time to time.
"Licenceholder" means at any time a member of the Group
which then holds a Licence.
"Licence Undertaking" means any and each undertaking or
assurance given in connection with the Offer by any one or
more of CSW, the Company, Bidco or the Target or any
Affiliate of any of them to the Director General or the
Secretary of State concerning the management and/or
ownership of and/or other matters concerning the Target once
it has become a Subsidiary of the Company.
"Majority Banks" means at any time:
(a) whilst no Advance or Xxxx is outstanding, a Bank or
Banks the aggregate amount of whose Commitments at the
relevant time represents by value more than sixty-six
and two-thirds per cent. (66 2/3%) of the aggregate
Commitments at such time;
12
(b) if an Advance or Xxxx is then outstanding, a Bank or
Banks the aggregate of whose participations in the
Advances and aggregate potential liability under Bills
outstanding at such time represents by value more than
sixty-six and two-thirds per cent. (66 2/3%) of the
aggregate of all the Advances and all the Outstanding
Liability Amounts of all Bills outstanding at such
time;
provided that whilst the Original Banks are the only Banks,
the term "Majority Banks" shall mean all of the Banks
together.
"Margin" means a rate per annum determined by reference to
columns 1 and 3 of the table below (when used for the
purpose of determining any rate of interest to apply
hereunder to any Tranche 1 Advance or to any amount payable
in respect of a Tranche 1 Advance or calculated by reference
to any Tranche 1 Commitment or which in the reasonable
opinion of the Facility Agent, whose opinion shall be
conclusive in the absence of manifest error, is otherwise
referable to a Tranche 1 Advance or any one or more of the
Tranche 1 Commitments) or by reference to columns 1 and 2 of
the table below (for any other purpose):
(1) (2) (3)
Ratio set out in Margin (p.a.) Margin (p.a.)
Clause 22.1 (a)
(a) Greater than 65:100 1.00% 0.75%
(b) Equal to or less than 0.75% 0.50%
65:100 but greater
than 60:100
(c) Equal to or less than 0.50% 0.375%
60:100 but greater
than 55:100
(d) Equal to or less than 0.325% 0.25%
55:100
For this purpose the ratio set out in Clause 22.1(a) shall
be determined by reference to (a) where the Company
considers that such ratio has changed (in each case on one
occasion only) sufficiently as a result of the prepayment of
outstanding Tranche 1 Advances consequent on the sale of
Grid Shares and/or the sale of receivables and application
of the proceeds in reduction of Borrowings that the Margin
should be reduced in accordance with the foregoing table, a
certificate of the Company in a form satisfactory to the
Facility Agent, acting reasonably, confirming the relevant
occurrence and setting out the calculation of the resulting
ratio, and/or (b) the Accounts for each quarterly and/or
annual Accounting Period delivered to the Facility Agent
pursuant to Clause 21.2(a)(i) or Clause 21.2(a)(ii) and the
supporting report and/or certificate referred to in Clause
21.2(a)(iii) or (iv) (as appropriate). The Margin being
determined shall be that set out in the relevant column
opposite the relevant ratio level and shall have effect from
(and including) (in the case of a determination as provided
in (a) above) the date of delivery of the certificate
therein referred to (including with respect to the
determination of rates of interest for Interest Periods then
current) or (in the case of a determination as provided in
(b) above) the Accounting Date as at and for the Accounting
Period ended on which such Accounts have been prepared (but
only with respect to the determination of rates of interest
for Interest Periods commencing after that Accounting Date
and then only where the relevant interest has not fallen due
for payment prior to the date of delivery of such Accounts
13
and report and/or certificate), in each case until (but
excluding) the effective date for any subsequent change in
the Margin in accordance with this definition.
Notwithstanding the foregoing:
(a) for the period from the date hereof to (but excluding)
the effective date for any change in the Margin in
accordance with this definition , the applicable Margin
shall be that stated in the relevant column in line
(a); and
(b) where any such Accounts or report and/or certificate
for any such Accounting Period have not been delivered
to the Facility Agent on or before the last day for the
delivery of such Accounts in compliance with Clause
21.2(a), the applicable Margin shall be that stated in
the relevant column in line (a) (if any Tranche 1
Advances are then outstanding or if the Margin was at
that level on such last day) or in line (b) (in any
other case), until (but excluding) the effective date
for any subsequent determination of the Margin in
accordance with this definition; and
(c) if at the time when the Margin would otherwise decrease
in accordance with the foregoing a Default exists of
which notice has been given by the Facility Agent to
the Company (whether pursuant to Clause 23.2(a) or
otherwise) such decrease shall not take effect for any
purpose before the date when such Default is cured (and
the Facility Agent is notified of that fact by the
Company in writing) or waived by a Waiver Letter which
makes reference to this paragraph of this definition.
"Material Adverse Effect" means any effect which is or is
reasonably likely:
(a) to be materially adverse to (i) the ability of the
Company, Bidco or the Target to perform its payment
obligations under any of the Finance Documents, or (ii)
the financial condition of the Group taken as a whole;
and/or
(b) to result in modification of the Licence in any manner
which in the reasonable opinion of the Majority Banks
would have (whether immediately or over time but prior
to the Tranche 2/3 Repayment Date) a Material Adverse
Effect as described in paragraph (a) above; and/or
(c) result in the termination of the Licence without a new
public electricity supply licence being issued
simultaneously to the Company or a wholly-owned
Subsidiary pursuant to Section 6(1) of the Act whose
terms are not materially less favourable than those of
the Licence.
"Maturity Date" means the last day of the Interest Period
relative to a Xxxx.
"Obligor" means each Borrower and each Guarantor.
"Offer" means the offers for the Shares to be made by CS
First Boston Limited on behalf of Bidco substantially on the
terms and conditions referred to in the Press Release, as
the same may be amended, varied or waived in compliance with
Clause 21.10.
"Offer Costs" means all banking, brokerage, accounting,
legal, public relations and other fees and commissions, out-
of-pocket costs and expenses and stamp, registration,
transfer and similar taxes incurred by or on behalf of the
Company or any Subsidiary thereof (including any member of
14
the Target Group which becomes such a Subsidiary pursuant to
the Offer) in connection with the negotiation, preparation
and execution of this Agreement or otherwise in connection
with the Offer.
"Offer Document" means the document in the agreed form to be
delivered to the shareholders of the Target containing the
formal Offer.
"Offer Termination Date" means the earliest date (as
notified by Bidco to the Facility Agent in writing) on which
all of the following have occurred: (a) all payments in
respect of acceptances of the cash alternative in the Offer
have been made in full, (b) no further such acceptances are
possible, and (c) all procedures pursuant to section 428 et
seq. Companies Xxx 0000 which are capable of being
implemented have been completed and all payments pursuant
thereto to shareholders in the Target have been made in
full.
"Option Schemes" means the Target's savings related employee
share schemes and executive share option schemes as in
effect at the Unconditional Date.
"Optionholders" means holders for the time being of options
issued under any of the Option Schemes.
"Outstanding Liability Amount" means in relation to an
outstanding Xxxx, the full face amount thereof.
"Panel" means The Panel on Takeovers and Mergers.
"Pooling and Settlement Agreement" means an agreement dated
30th March, 1990 made by the Target with the National Grid
Company plc and others setting out the rules and procedures
for the operation of an electricity trading pool and of a
settlement system and, while the same has effect, the
"Initial Settlement Agreement" also dated 30th March, 1990
and made between the same parties, as amended from time to
time.
"Power of Attorney" means a Power of Attorney issued by a
Borrower to the Facility Agent substantially in the form set
out in Schedule I.
"Press Release" means the agreed form of press release by
which the Offer is announced.
"Principal Subsidiary" means each member of the Group (a)
which is a Licenceholder, or (b) whose pre-tax profits
represent at least ten per cent. of the consolidated pre-tax
profits of the Group, or (c) the book value of whose gross
assets represents at least ten per cent. of the consolidated
gross assets of the Group, and for this purpose:
(i) in the case of a company which itself has Subsidiaries,
the calculation shall be made by using the consolidated
pre-tax profits or gross assets, as the case may be, of
it and its Subsidiaries;
(ii) all calculations of consolidated pre-tax profits or
gross assets shall be made by reference to:
(A) the latest accounts of the relevant company (or,
as the case may be, a consolidation of the
accounts of it and its Subsidiaries) used for the
purpose of the then latest unaudited quarterly or
15
audited annual consolidated Accounts of the Group
delivered to the Facility Agent under Clause 21.2;
and
(B) those unaudited quarterly or audited annual
consolidated Accounts (as the case may be) of the
Group;
and shall be made in accordance with the Applicable
Accounting Principles;
(c) the Target (once it becomes a Subsidiary of the
Company) shall be deemed to be a Principal Subsidiary
until it is shown to the Facility Agent's reasonable
satisfaction not to be a Principal Subsidiary under
paragraph (b) above;
(d) any member of the Group which is not a Principal
Subsidiary to which any Principal Subsidiary transfers
in any annual Accounting Period any fixed assets in any
transaction or series of transactions (related or not)
with an aggregate book value or market value in excess
of 25,000,000 pounds shall be deemed to be a Principal
Subsidiary (and the Principal Subsidiary from which the
assets were transferred shall be deemed to continue to
be a Principal Subsidiary) unless and until it is shown
(in each such case) to the Facility Agent's reasonable
satisfaction not to be a Principal Subsidiary under
paragraph (b) above;
(e) in the event of any dispute as to whether a Subsidiary
is or is not at any time a Principal Subsidiary the
question shall be referred to the Auditors for
determination according to the foregoing provisions of
this definition (acting as experts at the cost of the
Company) and their decision shall be conclusive and
binding on the parties hereto in the absence of
manifest error.
"Project Finance Subsidiary" means any Subsidiary of the
Company (other than a Licenceholder):
(a) which is a company whose principal assets and business
are constituted by the ownership, acquisition,
development and/or operation of an asset whether
directly or indirectly;
(b) none of whose Borrowings in respect of the financing of
such ownership, acquisition, development and/or
operation of an asset benefits from any recourse
whatsoever to any member of the Group (other than the
Subsidiary itself or another Project Finance
Subsidiary) in respect of the repayment thereof, except
as expressly referred to in paragraph (b)(iii) of the
definition of Project Finance Indebtedness in this
Clause 1.1; and
(c) which has been designated as such by the Company by
written notice to the Facility Agent, provided that the
Company may give written notice to the Facility Agent
at any time that any Project Finance Subsidiary is no
longer a Project Finance Subsidiary, whereupon it shall
cease to be a Project Finance Subsidiary.
"Project Finance Indebtedness" means any Borrowing which
finances the acquisition, development, ownership and/or
operation of an asset:
(a) which is incurred by a Project Finance Subsidiary; or
16
(b) in respect of which the person or persons to whom such
Borrowing is or may be owed by the relevant debtor
(whether or not a member of the Group) has or have no
recourse whatsoever to any member of the Group (other
than to a Project Finance Subsidiary) for the repayment
thereof other than:
(i) recourse to such debtor for amounts limited to the
cash flow or net cash flow (other than historic
cash flow or historic net cash flow) from such
asset; and/or
(ii) recourse to such debtor for the purpose only of
enabling amounts to be claimed in respect of such
Borrowing in an enforcement of any Encumbrance
given by such debtor over such asset or the
income, cash flow or other proceeds deriving
therefrom (or given by any shareholder or the like
in the debtor over its shares or like interest in
the capital of the debtor) to secure such
Borrowing, provided that (I) the extent of such
recourse to such debtor is limited solely to the
amount of any recoveries made on any such
enforcement, and (II) such person or persons are
not entitled, by virtue of any right or claim
arising out of in connection with such Borrowing,
to commence proceedings for the winding up or
dissolution of the debtor or to appoint or procure
the appointment of any receiver, trustee or
similar person or officer in respect of the
borrower or any of its assets (save only for the
assets the subject of such Encumbrance); and/or
(iii) recourse to such debtor generally, or
directly or indirectly to a member of the Group,
under any form of assurance, undertaking or
support, which recourse is limited to a claim for
damages (other than liquidated damages and damages
required to be calculated in a specified way) for
breach of an obligation (not being a payment
obligation or an obligation to procure payment by
another or an indemnity in respect thereof or any
obligation to comply or to procure compliance by
another with any financial ratios or other tests
of financial condition) by the person against whom
such recourse is available.
"Recognised Bank" means at any time:
(a) a bank which is recognised by the Inland Revenue as
carrying on a bona fide banking business in the United
Kingdom for the purposes of Section 349 of the Income
and Corporation Taxes Act 1988 (or any statutory re-
enactment or modification thereof, in substantially the
same form and content as at the date hereof) and which
brings into account as a trading receipt of that
business all payments of interest received by it
hereunder; or
(b) if at any time Section 349 of the Income and
Corporation Taxes Act 1988 (or a statutory re-enactment
or modification thereof, in substantially the same form
and context as at the date hereof) shall not at any
time continue in full force and effect or shall be
modified with the result that a bank or certain banks
shall cease to be so recognised, a bank carrying on a
bona fide banking business in the United Kingdom which
brings into account as a trading receipt of that
business all payments of interest received by it
hereunder.
17
"Reference Banks" means the principal London offices of
Citibank, N.A., Credit Suisse and Union Bank of Switzerland
and/or of such other Banks (if any) as may become Reference
Banks pursuant to Clause 29.5.
"Repayment Date" means each of (a) the date 364 days after
the date on which the first Tranche 1 Advance shall be made
hereunder (the "Tranche 1 Repayment Date"), and (b) the
fifth anniversary of the Unconditional Date (the "Tranche
2/3 Repayment Date").
"Request" means a request, substantially in the form of
Schedule C Part I or Part II (as appropriate), made by a
Borrower to the Facility Agent for an Advance to be made or
for a Xxxx to be accepted under this Agreement.
"Reservations" means the principle that equitable remedies
are remedies which may be granted or refused at the
discretion of the court, the limitation of enforcement by
laws relating to bankruptcy, insolvency, liquidation,
reorganisation, court schemes, moratoria, administration and
other laws generally affecting the rights of creditors, the
time barring of claims under the Limitation Acts, the
possibility that following the judgement in the case of In
re Charge Card Services Limited (1986) it may not be
possible for a bank to obtain a charge to secure obligations
owed to it over monies deposited with it, the possibility
that an undertaking to assume liability for or to indemnify
a person against non-payment of UK stamp duty may be void,
defences of set-off or counterclaim and similar principles,
rights and defences under the laws of any foreign
jurisdictions in which relevant obligations may have to be
performed.
"Same Day Funds" means freely transferable funds denominated
in Sterling settled for same day value through the Clearing
House Automated Payment System or through such other
clearing system as the Facility Agent shall notify to the
Company and the Banks as being customary for the settlement
of Sterling transactions of the type contemplated by this
Agreement.
"Secretary of State" means the Secretary of State as
referred to in the Act.
"Security Documents" means the Debenture of even date
herewith executed by both the Company and Bidco, together
with such other documents (if any) as may be required to
be entered into by the Company and/or Bidco pursuant to the
terms thereof.
"Shares" means existing unconditionally allotted or issued
and fully paid shares in the Target and any further shares
in the Target which are unconditionally allotted or issued
before the date on which the Offer ceases to be open for
acceptances (or such earlier date as the Company and the
Banks may, subject to the Code agree) upon the exercise of
any options granted under the Option Schemes or otherwise.
"Sterling" and "pound" means the lawful currency for the time
being of the United Kingdom.
"Subordinated Debt" means separate unsecured loans to the
Company from CSW and/or any other person permitted pursuant
to Clause 21.6(c) which (a) have a maturity date falling
after the Tranche 2/3 Repayment Date, (b) are not capable of
acceleration whilst any amount may be or become payable by
any Obligor hereunder or any of the Commitments remain in
effect, (c) are subordinated (as regards priority of
payment, ranking, rights of enforcement and all other
18
rights) as to principal, interest and all other amounts
payable on or in respect thereof and any and all claims
(including for damages) related thereto to all amounts which
may be or become payable by the Company under the Finance
Documents on the terms set out in the Intercreditor
Agreement.
"Subscription Agreement" means the subscription agreement
made or to be made between the Company and CSW in the agreed
form pursuant to which CSW agrees to subscribe for shares in
the capital of the Company and/or Subordinated Debt of the
Company.
"Subsidiary" means (a) a subsidiary as defined in Section
736 of the Companies Act 1985 as amended, and (b) a
subsidiary undertaking as defined in Section 258 of the
Companies Xxx 0000 as amended, or, in either case, any
statutory re-enactment or replacement thereof, provided that
an entity falling only within paragraph (b) shall come
within the definition of "Subsidiary" only (i) if it is a
Licenceholder (in which case it shall be a Subsidiary for
all purposes of this Agreement) and/or (ii) for the purposes
of Clauses 21.4, 21.6(a) and 22 (and the defined terms used
in those Clauses) and all Accounts and other financial
information to be delivered pursuant to Clause 21.2.
"Substitution Certificate" has the meaning ascribed to it in
Clause 29.4 (together the "Substitution Certificates"), and
references to "substitutes" shall be construed as references
to persons becoming party to this Agreement pursuant to
Substitution Certificates.
"Target" means SEEBOARD plc.
"Target Group" means Target and all those companies which
immediately prior to the first Utilisation Date are
Subsidiaries of Target and will remain so immediately
thereafter.
"Taxes" means all income and other taxes and levies,
imposts, duties, charges, deductions and withholdings in the
nature or on account of tax together with interest thereon
and penalties with respect thereto, if any, and any payments
made on or in respect thereof, and "Tax" and "Taxation"
shall be construed accordingly.
"Transaction Documents" means the Finance Documents, the
Subscription Agreement, the Licence and any and each Licence
Undertaking.
"Unconditional Date" means the date upon which the Offer
becomes or is declared unconditional in all respects without
any breach of Clause 21.10.
"Utilisation" means a utilisation of a Facility under this
Agreement, being, when designated "Tranche 1", a utilisation
of the Tranche 1 Facility by way of Advance, when designated
"Tranche 2", a utilisation of the Tranche 2 Facility by way
of Advance, and when designated "Tranche 3", a utilisation
of the Tranche 3 Facility by way of Advance or Xxxx.
"Utilisation Date" means in relation to each Advance or
Xxxx, the date specified as such in the relative Request
therefor or, on and after the making and/or issue thereof
pursuant to such Request, the date on which it was made
and/or issued.
"Waiver Letter" means any letter or other document setting
out the terms (if any) upon which (a) compliance with any
provision of any Finance Document is waived, or (b) any
19
amendment to or variation of or departure from the terms of
any Finance Document is approved, or (c) any consent or
approval required or requested to be given is given, in each
case by the Facility Agent with the agreement of the
Majority Banks or if so required by the terms of this
Agreement or any other Finance Document, all of the Banks.
1.2 Construction
In this Agreement, save where the context otherwise requires:-
(a) references to documents being in the "agreed form"
means documents either (i) in a form previously agreed
in writing by or on behalf of the Facility Agent and
the Company, or (ii) in form and substance satisfactory
to the Original Banks and initialled by or on behalf of
the Company and the Facility Agent on or prior to the
date hereof for the purposes of identification, or
(iii) in a form substantially as set out in any
Schedule to any Finance Document, or (iv) (if not
falling within (i) to (iii) above) in form and
substance satisfactory to the Original Banks acting
reasonably;
(b) references to "assets" shall include revenues and the
right thereto and property and rights of every kind,
present, future and contingent and whether tangible or
intangible (including uncalled share capital)
references to "shares" shall include stock;
(c) the expressions "hereof", "herein", "hereunder" and
similar expressions shall be construed as references to
this Agreement as a whole (including all Schedules) and
shall not be limited to the particular clause or
provision in which the relevant expression appears, and
references to "this Agreement" and all like indications
shall include references to this Agreement as
supplemented by the Accession Agreements, the
Substitution Certificates, the Waiver Letters and any
other agreement or instrument supplementing or amending
this Agreement;
(d) references to "indebtedness" shall be construed so as
to include any obligation or liability (whether present
or future, actual or contingent) for the payment,
repayment or redemption of any obligation expressed by
reference to monetary value or quantity or value of
commodities (whether such obligation is performable by
the payment of money or in some other way);
(e) references to a "person" shall be construed as a
reference to any person, firm, company, corporation,
government, state or agency of a state or any
association or partnership (whether or not having
separate legal personality) of two or more of the
foregoing;
(f) references to any of the Transaction Documents and any
other agreement or instrument shall be construed as a
reference to the same as amended, varied, supplemented
or novated from time to time (including, where
relevant, by any Accession Agreement and/or
Substitution Certificate);
(g) unless otherwise specified, references to Clauses and
Schedules are references to, respectively, clauses of
and schedules to this Agreement;
(h) words importing the singular shall include the plural
and vice versa;
20
(i) references (by whatever term, including by name) to the
Company, Bidco, the Target, each Obligor, the Arranger,
each Bank, each Reference Bank, the Facility Agent, the
Security Agent, CSW or the parties to this Agreement
shall, where relevant and subject as otherwise provided
in this Agreement, be deemed to be references to or to
include, as appropriate, their respective successors,
replacements and assigns, transferees and substitutes
permitted by the terms of the relevant Finance
Documents;
(j) reference to a time of day is, unless otherwise stated,
a reference to London time and references to a "month"
are references to a period starting on a particular day
in a calendar month and ending on the numerically
corresponding day in the next calendar month provided
that if a period starts on the last day in a calendar
month or if there is no numerically corresponding day
in the month in which the relevant period ends, that
period shall, save as otherwise provided in this
Agreement, end on the last day in such later month (and
references to "months" shall be construed accordingly).
(k) the contents page of, and headings in, this Agreement
are for convenience only and shall be ignored in
construing this Agreement;
(l) all references to statutes and other legislation
include all re-enactments and amendments of those
statutes and that legislation;
(m) an outstanding Xxxx is "repaid" or "prepaid" by
providing (in accordance with the terms hereof) cash
cover therefor in the same currency as that in which
such Xxxx is denominated in an amount determined in
accordance with Clause 6.13, by reducing the
Outstanding Liability Amount of such Xxxx or by
cancelling such Xxxx and returning the original to the
Facility Agent on behalf of the Banks which accepted
the same (as appropriate) or providing other evidence
(in form and substance satisfactory to the Facility
Agent) that no further liability exists thereunder for
any Bank; references to Utilisations being prepaid are
to be construed accordingly insofar as those
Utilisations involve Bills;
(n) an amount "outstanding" at any time under or in respect
of a Xxxx (or the "principal amount" thereof at any
time) is the Outstanding Liability Amount of such Xxxx
and a "drawing" under the Tranche 3 Facility includes
the acceptance of a Xxxx by a Bank and each provision
of this Agreement which contains reference to the
concepts contained in this paragraph (n) shall be
construed accordingly;
(o) any reference to "certificate", "certification" (or any
like term) in relation to an amount shall be a
reference to a certificate containing such detail as is
reasonably necessary in order to determine how such
amount was calculated; and
(p) any reference to a document being "certified" means a
document certified by an Authorised Signatory of the
party providing the document, or by lawyers acting on
his behalf, as being genuine and in full force and
effect and, if a copy, a true and complete copy of the
original.
21
2. FACILITIES AND RELATED MATTERS
2.1 Facilities
Subject to the terms of this Agreement, and in reliance upon
the representations and warranties set out in Clause 20.1 as
repeated from time to time pursuant to Clause 20.2, the
Xxxxx xxxxx to the relevant Borrowers the following
facilities:
(a) Tranche 1 Facility: a term loan facility whereby,
subject as aforesaid, the Banks, when requested by the
Company pursuant to a Request, will make Tranche 1
Advances denominated in Sterling to the Company during
the Tranche 1/2 Availability Period in an aggregate
principal amount not exceeding the aggregate Tranche 1
Commitments;
(b) Tranche 2 Facility: a term loan facility whereby,
subject as aforesaid, the Banks, when requested by the
Company pursuant to a Request, will make Tranche 2
Advances denominated in Sterling to the Company during
the Tranche 1/2 Availability Period in an aggregate
principal amount not exceeding the aggregate Tranche 2
Commitments; and
(c) Tranche 3 Facility: a revolving credit facility
whereby, subject as aforesaid, the Banks, when
requested by a Borrower or the Company pursuant to a
Request, during the Tranche 3 Availability Period will
make to the Borrower specified in or giving such
Request Tranche 3 Advances denominated in Sterling or
accept Bills denominated in Sterling drawn by such
Borrower, up to an aggregate amount at any one time
outstanding with respect to all the Borrowers and all
Utilisations taken together equal to the aggregate
Tranche 3 Commitments.
2.2 Limitations
Subject to the terms of this Agreement unless otherwise
agreed by the Facility Agent and the Banks:
(a) no Utilisation of any Facility may be made before the
Unconditional Date;
(b) Tranche 1 Utilisations and Tranche 2 Utilisations may
be made only by the Company;
(c) Tranche 1 Utilisations may not be made unless a member
of the Group owns Grid Shares at the relevant
Utilisation Date, and may not be made on or after the
later of 31st January, 1996 and the date 30 days after
the date on which shares in The National Grid Holding
plc are first listed on The Stock Exchange or (if no
such listing has occurred) are first able to be freely
disposed of by holders thereof;
(d) the aggregate of the outstanding Tranche 3 Utilisations
at any time may not exceed the Tranche 3 Commitments
then in effect; and
(e) no Tranche 3 Utilisation may be made before there has
been (or unless there is on the same day occurring) a
drawing of the Tranche 1 or Tranche 2 Commitments.
22
2.3 Nature of the Banks' rights and obligations hereunder
(a) Banks' Commitments: No Bank is obliged to participate in
the making of any Utilisation (i) in the case of a Tranche 1
Advance, in an amount exceeding its undrawn Tranche 1
Commitment, (ii) in the case of a Tranche 2 Advance, in an
amount exceeding its undrawn Tranche 2 Commitment, and (iii)
in the case of a Tranche 3 Utilisation, if to do so would
cause the aggregate of the amounts of (A) its participations
in the Tranche 3 Advances outstanding under this Agreement,
and (B) the Outstanding Liability Amounts in respect of all
outstanding Bills accepted by such Bank, to exceed its
Tranche 3 Commitment.
(b) Obligations several: The obligations of each Bank under
this Agreement are several. The failure of a Bank to carry
out its obligations under this Agreement shall not relieve
any other party of its obligations under any Finance
Document. No Bank shall be responsible for the obligations
of any other Bank under this Agreement.
(c) Agents not responsible: The Facility Agent and the Security
Agent, in their capacities as such, shall not be responsible
for the non-performance by any Bank of its obligations under
this Agreement.
(d) Rights several: The obligations of each Obligor to the
Finance Parties under the Finance Documents are owed to each
of them as separate and independent obligations. Each
Finance Party may, except as otherwise stated herein,
separately enforce its rights hereunder without joining in
any other Finance Party.
2.4 Nature of Borrowers' rights and obligations hereunder
(a) Rights and Obligations: The obligations of the Borrowers
under this Agreement in their capacities as such shall be
separate and independent and not joint and several, and the
Company and not the other Borrowers shall be liable for:-
(i) payment of all amounts becoming due under Clause 15 to
the extent that such amounts are not referable to
Utilisations made by or to monies received or
receivable from a particular Borrower or are not
otherwise in the reasonable opinion of the Facility
Agent referable to a particular Borrower; and
(ii) payment of all amounts due under Clause 24, to the
extent that in the reasonable opinion of the Facility
Agent such amounts are not referable to a particular
Borrower.
(b) Facility Agent's determination: The written determination of
the Facility Agent acting reasonably with regard to any
matter which, according to Clause 2.4(a), is to be
determined according to its reasonable opinion shall be
conclusive save in the case of manifest error. No person
shall have any recourse to the Facility Agent in relation to
any such determination if it proves to be the case that its
opinion was incorrect unless the Facility Agent was
negligent or fraudulent in making any such determination.
(c) Company as Obligors' Agent: Any and each Obligor (other than
the Company) by and upon its execution of an Accession
Agreement, irrevocably appoints the Company to act on its
behalf as its agent in relation to the Finance Documents and
irrevocably authorises the Company on its behalf to give all
notices and instructions (including Requests) to execute on
its behalf any Accession Agreement and to make such
agreements capable of being given or made by such Obligor
23
notwithstanding that they may affect such Obligor, without
further reference to or the consent of such Obligor and such
Obligor shall be bound thereby as though such Obligor itself
had given such notices and instructions (including, without
limitation, any Requests) or executed or made such
agreements.
(d) Company's acts binding: Every act, omission, agreement,
undertaking, settlement, waiver, notice or other
communication given or made by the Company under this
Agreement, or in connection with this Agreement (whether or
not known to any other Obligor and whether occurring before
or after such other Obligor became an Obligor under this
Agreement) shall be binding for all purposes on all the
Obligors as if the Obligors had expressly concurred with the
same. In the event of any conflict between any notices or
other communications of the Company and any other Obligor,
those of the Company shall prevail.
2.5 Issues Relative to the Offer
(a) Each of the Facility Agent and the Banks acknowledges that
issues ("Issues") involving the possibility of amendment to
the Offer or waiver of or determination of satisfaction (or
otherwise) as to conditions to the Offer are likely to arise
which will require to be determined at short notice if the
efficient conduct of the Offer is not to be impeded.
(b) Each of the Company, Bidco, the Facility Agent and the Banks
acknowledges that, depending on the Issue involved, the
agreement of the Banks or Majority Banks may be required
before an Issue can be addressed in the manner in which the
Company or Bidco wishes to address it whilst complying with
the provisions of Clause 21.10 and other provisions of this
Agreement.
(c) The Facility Agent has identified to the Company and Bidco
the names and contact details of certain persons to whom
Issues should be referred for the purpose of initiating the
process by which any agreement of the Banks or Majority
Banks required in relation thereto may be sought. Each of
the Banks has identified to the Facility Agent the names and
contact details of certain persons to whom the Facility
Agent should in turn refer such Issues for a determination
as to whether such Bank will give or withhold its agreement
where the agreement of the Banks or Majority Banks is
required.
(d) The Facility Agent undertakes to the Company and Bidco that
it will use its reasonable endeavours to ensure the
availability of appropriate personnel at all times to deal
promptly on its behalf with any referral to the Facility
Agent and the Banks of any Issues in relation to which any
agreement of the Banks or Majority Banks is required and
with the obtaining of the decision of the Banks or Majority
Banks (as appropriate) as to whether or not to give such
agreement, and that it will use its reasonable endeavours to
ensure that each request for any such agreement is dealt
with and responded to by it and the Banks within the time
horizon communicated to it by the Company or Bidco.
(e) Each Bank undertakes to each of the Facility Agent and the
Company and Bidco that it will use its reasonable
endeavours to ensure the availability of appropriate
personnel at all times to deal promptly on its behalf with
any referral to it by the Facility Agent of any Issue in
relation to which its agreement is requested in order that
its decision as to whether to give or withhold such
agreement may be communicated promptly to the Facility
Agent, and that it will use its reasonable endeavours to
ensure that each such request is dealt with and responded to
within the time horizon communicated to it by the Facility
Agent.
24
(f) In addition to the undertakings of the Facility Agent and
the Banks contained in paragraphs (d) and (e) above, the
Facility Agent and each Bank acknowledges that (i) during
the final phase of the Offer period and when notified by the
Company or Bidco, authorised Bank personnel will have to be
available on a 24 hour basis to consider Issues, and (ii)
failure by any Bank to give a prompt response in relation to
any Issue during such final phase could jeopardise the
success of the Offer. Accordingly each Bank agrees that (so
far as practicable, and taking into account the materiality
of any particular Issue) it will establish an appropriate
internal approval process to enable it to provide such a
response.
3. PURPOSE AND RESPONSIBILITY
3.1 Purpose
(a) The proceeds of each Advance shall be applied only in or
towards financing the following:
(i) in the case of Tranche 1 Advances and Tranche 2
Advances, payment of Offer Costs by the Company and/or
subscription in cash for shares in Bidco (or making
loans to Bidco subordinated to the obligations of Bidco
under the Finance Documents on terms satisfactory to
the Majority Banks) the proceeds of which will be used
by Bidco to finance (A) the acquisition by Bidco of
Shares pursuant to the Offer, (B) payments by Bidco to
the Optionholders under proposals with respect to the
Option Schemes put to them in connection with the
Offer, (C) payment of Offer Costs by Bidco and/or (D)
the refinancing of Borrowings by the Target from third
parties; and
(ii) in the case of Tranche 3 Advances, (A) the general
working capital requirements of the Borrowers and their
Subsidiaries, (B) subject to the proviso set out below,
any of the purposes described in paragraph (ii) above,
and (C) other general corporate purposes of the
Borrowers and their Subsidiaries permitted under the
terms of this Agreement, provided always that no more
than 50,000,000 pounds may be drawn and outstanding on any
day as Tranche 3 Utilisations where the proceeds have
been applied directly or indirectly towards financing
any of the purposes set out in sub-paragraphs (A), (B)
or (C) of paragraph (i) above.
(b) Each Borrower undertakes that the proceeds of each
Utilisation by it shall be used only for the purposes
permitted for such Utilisations by Clause 3.1, and that no
Utilisation in any event shall be used in any way which
would be illegal under, or would cause the invalidity or
unenforceability (in each case in whole or in part) of any
Finance Document under, any applicable law (including,
without limitation, section 151 of the Companies Act 1985).
3.2 Responsibility
Without prejudice to the foregoing and the remaining
provisions of this Agreement, none of the Finance Parties
shall be bound to enquire as to the use or application of
the proceeds of any Utilisation, nor shall any of them be
responsible for or for the consequences of such use or
application.
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4. CONDITIONS PRECEDENT
4.1 Conditions precedent to first Utilisation
The obligations of each Finance Party to the Company and
each Borrower under this Agreement with respect to the
making of any Utilisations hereunder are subject to the
conditions precedent that on or before the date of the first
Utilisation hereunder:
(a) Documents: the Facility Agent shall have received all
of the documents listed in Schedule G in the agreed
form and each of the documents referred to in Schedule
G as being certified shall be certified by or on behalf
of the relevant Obligor as being a true and complete
copy, and in full force and effect as at the date such
document is required to be delivered;
(b) Equity: the Original Banks shall be satisfied, and
shall have received such evidence as they may
reasonably require, that CSW has subscribed in full in
cash in the amount heretofore agreed in writing
between the Company and the Facility Agent for
ordinary shares and/or Subordinated Debt of the
Company, and that such shares have been issued to, and
are unconditionally owned by CSW and have been
registered in its or their names in the books of the
Company; and
(c) Offer: the Offer shall have become or been declared
unconditional in all respects without Bidco having
declared the Offer or permitted the Offer to become
unconditional in circumstances where any provision of
Clause 21.10 (other than paragraphs (a)(ii) and/or
(iii)) is breached thereby.
4.2 Further Conditions Precedent
The obligations of each Finance Party with respect to the
making of any Utilisation are subject to the further
conditions precedent that both at the date of the Request
for and at the Utilisation Date for such Utilisation:
(a) no breach of Clause 21.10 (other than paragraphs
(a)(ii) and/or (iii)) shall have occurred and be
continuing which has not been waived by a Waiver
Letter; and
(b) all of the representations and warranties in Clause
20.1(a), (b), (c), (d), (f)(i) and (ii), (j), (n) and
(p) are and will be correct (as if then made)
immediately before the Unconditional Date, ignoring any
references to Subsidiaries (other than Bidco),
Principal Subsidiaries (other than Bidco), the Target
and their respective businesses and assets.
4.3 Further Conditions Precedent
The obligations of the Finance Parties in respect of each
Utilisation (other than a Tranche 1 Advance, a Tranche 2
Advance or a Tranche 3 Advance the proceeds of which in each
case are to be applied directly in financing, or in
refinancing a Tranche 3 Advance the proceeds of which were
applied in financing or refinancing, the payment of special
dividends as referred to in Clause 3.1(a)(i) and/or the
acquisition of Shares pursuant to the Offer and/or pursuant
to procedures implemented under section 428 et seq.
Companies Xxx 0000 directly or indirectly as described in
Clause 3.1(a)(ii) or (iii)) are subject to the further
conditions precedent that both at the date of the Request
for and at the Utilisation Date for such Utilisation:-
26
(a) in respect of each Utilisation by the drawing of a
Tranche 3 Advance by a Borrower to the extent that it
does not exceed a Tranche 3 Advance made to such
Borrower which is repaid on the date of such
Utilisation by such Borrower (a "Rollover
Utilisation"), no Event of Default shall have occurred
and be continuing which has been declared pursuant to
Clause 23.2 and not waived; and
(b) (other than in respect of a Rollover Utilisation) (i)
no Default shall have occurred and be continuing or
would result from the making of such Utilisation which
has not been waived pursuant to a Waiver Letter, and
(ii) the representations and warranties in Clause 20.1
to be repeated on those dates are correct in all
material respects and will be correct in all material
respects immediately after the making of such
Utilisation.
4.4 Additional Borrower
The obligations of each Finance Party to each Additional
Borrower under this Agreement with respect to the making of
the first Utilisation by such Additional Borrower under this
Agreement are further subject to the condition precedent
that the Facility Agent shall have received in respect of
the Additional Borrower and the Accession Agreement to which
it is a party certified copies of all of the documents
listed in Schedule G paragraphs 1, 5, 6, 7 and 8 in form and
substance reasonably satisfactory to the Facility Agent.
5. ADVANCES
5.1 Delivery of Request
Subject to the terms of this Agreement, the Company (in the
case of the Tranche 1 Facility or the Tranche 2 Facility) or
any Borrower (in the case of the Tranche 3 Facility) may
request an Advance by delivering to the Facility Agent by
facsimile transmission (provided that the original is
received by the Facility Agent prior to 10.00 a.m. on the
proposed Utilisation Date) or letter, prior to 10.00 a.m. on
the second Business Day before the proposed Utilisation Date
(or in any such case at such later time and/or date as may
be agreed by the Facility Agent in writing), a duly
completed Request.
5.2 Form of Request
Each Request shall specify:
(a) the Borrower in relation thereto (being, in the case of
a Tranche 1 Advance, and a Tranche 2 Advance the
Company and in the case of a Tranche 3 Advance to be
applied in financing the acquisition of Shares pursuant
to the Offer and/or pursuant to procedures implemented
under section 428 et seq. Companies Xxx 0000 or the
payment of Offer Costs, Bidco or the Company and, in
the case of any other Tranche 3 Advance, any Borrower);
(b) the Tranche designation for the requested Advance;
(c) the proposed Utilisation Date, which shall be a
Business Day falling during the applicable Availability
Period and complying with any other applicable
provisions of this Agreement;
(d) the amount of the proposed Advance (the "Requested
Amount") which shall be (i) in the case of any Tranche
1 Advance or Tranche 2 Advance, an amount not less than
40,000,000 pounds or such other amount as the Facility
Agent may agree and (ii) in the case of a Tranche 3 Advance,
27
an amount not less than 10,000,000 pounds, provided always
that no Requested Amount for a Tranche 3 Advance may
exceed the then Available Facility Amount;
(e) the duration of its (or, in the case of a Tranche 1
Advance or Tranche 2 Advance, its first) Interest
Period, in the manner required by and subject to the
terms of Clause 10; and
(f) unless previously notified to the Facility Agent in
writing and not revoked) the details of the bank and
account to which the proceeds of the proposed Advance
are to be made available.
Subject to the terms of this Agreement, each Request shall
be irrevocable and the Borrower named in the same shall be
bound to borrow an Advance in accordance with such Request.
The Facility Agent shall promptly notify each Bank of each
Request.
5.3 Participations in Advances
Subject to the terms of this Agreement each Bank shall, on
the date specified in any Request for an Advance, make
available to the Facility Agent in Sterling for the account
of the relevant Borrower the amount of its participation in
that Advance in the proportion (applied to the Requested
Amount) which its Commitment bearing the same Tranche
designation as such Advance bears to the aggregate amount of
the Commitments having such designation. All such amounts
shall be made available to the Facility Agent in accordance
with Clause 12.1 for disbursement to or to the order of the
relevant Borrower in accordance with the provisions of this
Agreement.
6. THE XXXX FACILITY
6.1 Delivery of Xxxx Request
Subject to the terms of this Agreement, the Company or any
Borrower directly may request a Utilisation of the Tranche 3
Facility by acceptance of Bills by delivering to the
Facility Agent by facsimile transmission (provided that the
original is received by the Facility Agent prior to 10.00
a.m. on the proposed Utilisation Date) or letter, prior to
10.00 a.m. on the second Business Day before the proposed
Utilisation Date (or in any such case at such later time
and/or date as may be agreed in a Waiver Letter), a duly
completed Request.
6.2 Form of Xxxx Request
Each Request for a Utilisation by acceptance of Bills shall
specify:
(a) the Borrower in relation thereto;
(b) the proposed Utilisation Date, which shall be a
Business Day falling during the Tranche 3 Availability
Period;
(c) the amount of the proposed Utilisation (the "Requested
Amount") which shall be a minimum amount of 10,000,000
pounds and an integral multiple of 1,000,000 pounds,
provided that the Requested Amount may not exceed the
then Available Facility Amount;
28
(d) the purpose for which the Bills are requested;
(e) the duration of the Interest Period for the Bills
(being a period of between 7 and 183 days (inclusive)
ending on or prior to the Tranche 2/3 Repayment Date;
(f) (unless previously notified to the Facility Agent in
writing and not revoked) the details of the bank and
account to which the proceeds of the discounting of
such Bills are to be made available.
Subject to the terms of this Agreement, each such Request
shall be irrevocable and the Borrower named in the same
shall be bound to make a drawing by the acceptance of Bills
in accordance with such Request. The Facility Agent shall
promptly notify each Bank of each such Request.
6.3 Power of Attorney
The Company shall procure that a Power of Attorney duly
executed by any Borrower which is to make a Utilisation of
the Tranche 3 Facility by acceptance of Bills shall be given
to the Facility Agent at the same time as (or before) any
Request for such Utilisation unless there is already in
effect at that time an existing Power of Attorney executed
by such Borrower.
6.4 Amount of Bills to be accepted by each Bank
Subject to the terms of this Agreement, including without
limitation Clause 6.7, the aggregate principal amount of the
Bills to be accepted by a Bank will be the proportion of the
Requested Amount which its Tranche 3 Commitment bears to the
aggregate Tranche 3 Commitments on the proposed Utilisation
Date.
6.5 Notification of the Banks
The Facility Agent shall, not later than 1.00 p.m. one
Business Day prior to the Utilisation Date, notify each Bank
of the details of the requested Bills and of the aggregate
principal amount of the Bills to be accepted by it.
6.6 Acceptance of Bills
(a) The Facility Agent shall, not later than 10.30 a.m. on the
Utilisation Date, deliver to each Bank Bills completed in
accordance with Clause 6.9.
(b) Each Bank shall accept the Bills delivered to it in
accordance with paragraph (a) above.
(c) The Facility Agent shall, not later than 11.30 a.m. on the
Utilisation Date, notify the relevant Borrower and each Bank
(except a Bank to which Clause 6.7 applies) of the
applicable EBDR.
(d) Subject to the terms of this Agreement, each Bank shall pay
to the Facility Agent for value on the Utilisation Date for
the relevant Borrower an amount equal to:
(i) the amount which the Bank would have received as the
proceeds of discounting if it had discounted the Bills
accepted by it at the applicable EBDR; less
(ii) acceptance commission calculated at the rate of the
then applicable Margin on the aggregate principal
amount of those Bills for the Interest Period relative
thereto.
29
6.7 Advances as an alternative
(a) If it would be contrary to any law or regulation for a Bank
to accept any Bills or a Bank is not eligible to accept and
discount Bills in the London Discount Market, then it may
notify the Facility Agent accordingly by no later than 3.00
p.m. one Business Day prior to the proposed Utilisation
Date.
(b) If a Bank notifies the agent in accordance with paragraph
(a) above, then, subject to the terms of this Agreement,
that Bank shall instead make a Tranche 3 Advance in
accordance with Clause 5 in Sterling on the relevant
Utilisation Date in a principal amount equal to the
aggregate principal amount of the Bills which it would
otherwise have been obliged to accept pursuant to this
Clause 6 and for an Interest Period equal to the Interest
Period of those Bills.
6.8 Acceptance Commission
Acceptance commission on any Xxxx shall be calculated on the
basis of a year of 365 days and for the actual number of
days in the relevant Interest Period.
6.9 Holding and completion of Bills
(a) The Company and each Borrower shall ensure that the Facility
Agent has a sufficient stock of Bills before delivering any
Request for Bills. The Facility Agent shall, subject to the
terms of this Agreement, hold such Bills to the order of the
Borrower in whose favour they are drawn.
(b) Each Xxxx shall:
(i) be drawn in its own favour by and be signed by the
relevant Borrower and endorsed by it in blank;
(ii) be undated;
(iii) have the Maturity Date and the face amount left
blank; and
(iv) be claused in a manner which complies with the Bank of
England's requirements for Eligible Bills at that time.
(c) Subject to the terms of this Agreement, the Facility Agent
shall:
(i) date each Xxxx with the relevant Utilisation Date;
(ii) insert in each Xxxx the name of the Bank on which it is
drawn, its face amount and its Maturity Date; and
(iii) deliver the requisite number of completed Bills to
the relevant Banks for acceptance in accordance with
this Agreement.
(d) If the Power of Attorney given to the Facility Agent by the
relevant Borrower is in effect on the relevant Utilisation
Date and no notice of revocation thereof has been received
by the Agent and the Agent has not notified that Borrower in
writing at least two Business Days prior to such proposed
Utilisation Date that it will no longer exercise the powers
given to it under the Power of Attorney, the Facility Agent,
for and on behalf of the relevant Borrower, shall draw,
endorse and deliver Bills complying with the requirements of
paragraph (b) above to implement the relevant drawing in
satisfaction of that Borrower's obligations thereunder.
30
Having executed the Bills in accordance with the Power of
Attorney, the Facility Agent will hold the Bills and shall
only release the Bills in accordance with the terms of this
Agreement.
(e) The Facility Agent shall be liable to the relevant Borrower
for any loss or liability incurred by that Borrower as a
result of any loss, theft, fraudulent usage or other
misapplication of any Xxxx only to the extent that such loss
or liability was incurred directly as a result of the
Facility Agent failing to take reasonable care to safeguard
the Bills.
6.10 Discounting of Bills
Each Bank will arrange for each Xxxx accepted by it to be
discounted on its behalf by a bank carrying on a bona fide
banking business or a person bona fide carrying on the
business of a discount house, in the United Kingdom in each
case (which may include the Bank discounting the Xxxx
itself).
6.11 Information relating to Bills
Each Borrower, promptly on request by a Finance Party, shall
supply to the Facility Agent for that Finance Party any
information relating to any Xxxx (including the underlying
trade transaction for that Xxxx) as that Finance Party may
reasonably require or which may be required by the Bank of
England or any other fiscal or monetary authority in the
United Kingdom.
6.12 Eligible Bills
Each Borrower shall ensure that each Xxxx drawn by it and
accepted by a Bank is, assuming that the relevant Bank is a
bank whose acceptances are then being treated as eligible
acceptances by the Bank of England, eligible for
rediscounting at the Bank of England.
6.13 Cash Cover
(a) If any Borrower shall prepay any Xxxx pursuant to any of
Clauses 9.2, 13.6, 14.5, 15.2 or 16 by providing cash cover
therefor, the amount to be so provided shall be the face
amount of that Xxxx discounted on the basis of such normal
commercial rates prevailing at the time of prepayment for
Sterling deposits of an amount equal to such face amount for
the period from the date of prepayment to the Maturity Date
of such Xxxx as the Facility Agent (after consultation with
the Company and the relevant Bank) shall reasonably
determine.
(b) If any Borrower shall be required to provide cash cover for
any Xxxx pursuant to Clause 23.2(e), the amount to be so
provided and deposited with the Facility Agent shall be the
face amount of such Xxxx, and the Facility Agent, promptly
upon receipt, shall in turn deposit an amount equal to the
amount so received by it for the period from the date of
payment to the Maturity Date for such Xxxx at the then
prevailing market rates for like deposits. Upon receipt of
interest on such deposit, the Facility Agent shall pay an
amount equal thereto to the Company (after deduction of any
applicable tax) by way of interest on the cash cover
deposited with it, unless a Default is then continuing in
which event such amount shall be applied in payment of any
overdue amount or, if none, added to the cash cover
deposited with the Facility Agent.
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7. CANCELLATION OF COMMITMENTS
7.1 Tranche 1 Commitments
Any part of the Tranche 1 Commitments not borrowed hereunder
before the expiry of the Tranche 1/2 Availability Period
shall be cancelled automatically at close of business in
London on such expiry.
7.2 Tranche 2 Commitments
Any part of the Tranche 2 Commitments not borrowed hereunder
before the expiry of the Tranche 1/2 Availability Period
shall be cancelled automatically at the close of business in
London on such expiry.
7.3 Tranche 3 Commitments
The Tranche 3 Commitments shall be cancelled at close of
business in London on the last day of the Tranche 3
Availability Period.
7.4 Voluntary Cancellation
The Company may, on giving not less than three Business
Days' prior written notice to the Facility Agent (which
shall promptly give notice of the same to the Banks) at any
time cancel or reduce the Tranche 1 Commitments, the Tranche
2 Commitments or the Tranche 3 Commitments in whole or in
part (but, if in part, by a minimum of and in whole
multiples of 10,000,000 pounds in each case and so that such
reduction shall be applied pro rata to all the Tranche 1
Commitments, Tranche 2 Commitments or Tranche 3 Commitments
(as the case may be)) without incurring any penalty or other
cost, provided that such cancellation or reduction may only
be effected to the extent of the amount of the Tranche 1
Commitments, Tranche 2 Commitments or Tranche 3 Commitments
(as the case may be) undrawn on the date therefor taking
into account any repayment or prepayment of any Utilisation
due to be made on that date. Any such notice by the Company
shall be irrevocable and shall specify the date upon which
the reduction is to become effective and the amount of the
reduction.
7.5 Reduction consequent on Repayment or Prepayment
(a) Subject to Clause 7.5(b), the Tranche 1 Commitments shall be
reduced and cancelled (such reduction being applied pro rata
as between the Tranche 1 Commitments of all of the Banks),
by the amount of any repayment or prepayment of any Tranche
1 Advance made pursuant to any provision of this Agreement.
Subject as aforesaid, the Tranche 2 Commitments shall be
reduced and cancelled (such reduction being applied pro rata
as between the Tranche 2 Commitments of all the Banks) by
the amount of any repayment or prepayment of any Tranche 2
Advance made pursuant to any provision of this Agreement.
(b) Each Bank's Tranche 1 Commitment shall be reduced and
cancelled by the amount of any prepayment of that Bank's
participation in any Tranche 1 Advance made pursuant to any
of Clauses 13.6, 14.5, 15.2 or 16. Each Bank's Tranche 2
Commitment shall be reduced and cancelled by the amount of
any prepayment of that Bank's participation in any Tranche 2
Advance made pursuant to any of Clauses 13.6, 14.5, 15.2 or
16.
32
7.6 Limitations
Save as expressly provided in this Agreement any amount of
the Commitments cancelled or otherwise extinguished under
this Agreement may not be reinstated. Save as expressly
provided in this Agreement none of the Commitments may be
reduced or cancelled under this Agreement.
8. REPAYMENT
8.1 Repayment of the Tranche 1 Advances
The Company, subject to the application of Clause 9, shall
repay the Tranche 1 Advances in full on the Tranche 1
Repayment Date.
8.2 Repayment of the Tranche 2 Advances
The Company, subject to the application of Clause 9, shall
repay the Tranche 2 Advances in full on the Tranche 2/3
Repayment Date.
8.3 Repayment of the Tranche 3 Utilisations
(a) Each Borrower shall repay the full amount of each Tranche 3
Advance made to it on the last day of the Interest Period
relating to that Tranche 3 Advance, provided always that
each Tranche 3 Advance then outstanding shall be repaid in
full on the Tranche 2/3 Repayment Date.
(b) Each Borrower shall pay an amount equal to the face amount
of each Xxxx on its Maturity Date to the Facility Agent for
the Bank which accepted such Xxxx, provided always that each
Xxxx then outstanding shall be repaid in full on the Tranche
2/3 Repayment Date.
9. PREPAYMENT
9.1 Prohibition
No Borrower may prepay all or any part of any Utilisation
except as expressly provided in this Agreement.
9.2 Voluntary Prepayment
(a) Subject to Clause 9.2(b), the Company, on giving not less
than three Business Days' prior written notice to the
Facility Agent (which shall promptly give notice of the same
to the Banks) specifying, inter alia, the amount and date
for prepayment and identifying the Utilisation concerned,
may procure that any Utilisation is prepaid at any time in
whole or in part by the Borrower by which it was made,
provided that any prepayment shall be (if in part) in the
case of a Tranche 1 Advance or a Tranche 2 Advance of an
amount which is at least 10,000,000 pounds or, in the case
of a Tranche 3 Utilisation, of an amount which is a minimum
(and, if more, a whole multiple) of 1,000,000 pounds.
(b) Any such prepayment and any prepayment pursuant to Clause
9.3 shall be applied pro rata against the participations of
the Banks in the Utilisation prepaid.
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9.3 Mandatory Prepayment
The Company and Bidco shall procure that the Net Proceeds of
sales of Grid Shares by any member of the Group to any
person who is not a member of the Group shall be applied in
or towards prepayment of Tranche 1 Advances promptly after
receipt of such Net Proceeds by the relevant member of the
Group, provided that such Net Proceeds may be deposited in
an interest bearing account with the Facility Agent with
irrevocable instructions being given to the Facility Agent
in a form satisfactory to it to apply such Net Proceeds on
the next Interest Date(s) relative to the Tranche 1 Advances
in or towards prepayment of the Tranche 1 Advances. For
this purpose "Net Proceeds" means the consideration received
by any member or members of the Group in respect of the
disposal from the Group to any third party of the Grid
Shares concerned, after deduction of all amounts for or on
account of Taxes applicable to, or to any gain (including
any deemed gain) resulting from, the disposal and all costs,
fees, expenses and the like properly incurred by members of
the Group in arranging and effecting that disposal.
9.4 Bills
(a) If and to the extent that any prepayment of Tranche 3
Utilisations made or required to be made under any provision
of this Agreement could be satisfied by a prepayment of
Tranche 3 Advances, then Tranche 3 Advances rather than
Bills shall be prepaid.
(b) For the avoidance of doubt, Clauses 1.2(m) and 6.13 describe
the manner in which a Utilisation by Xxxx may be prepaid for
the purposes of this Agreement, and any prepayment of such a
Utilisation shall be effected in that manner.
9.5 General provisions relating to prepayment
(a) Any notice of prepayment given under this Agreement shall be
irrevocable, and the Company or the Borrower named in such
notice shall be bound to prepay (or, in the case of the
Company, to procure prepayment) in accordance with such
notice.
(b) Amounts repaid and prepaid in respect of any Tranche 1
Advance or Tranche 2 Advance under any provision of this
Agreement may not be reborrowed hereunder.
(c) Amounts repaid or prepaid pursuant to Clause 8.3 or 9.2 in
respect of Tranche 3 Utilisations may, prior to the Tranche
2/3 Repayment Date but subject to the terms of this
Agreement, be redrawn as Tranche 3 Utilisations. Any
amounts repaid or prepaid in respect of Tranche 3
Utilisations under any other provision of this Agreement may
not be redrawn.
(d) Any prepayment of any Advance under any provision of this
Agreement shall be made together with interest accrued on
the amount prepaid, but (subject to clause 24.2(c)), without
premium or penalty.
10. INTEREST PERIODS
10.1 Selection and agreement
The relevant Borrower shall give notice to the Facility
Agent not later than 10.00 a.m. on the second Business Day
prior to the commencement of each (or the) Interest Period
relative to any Advance made hereunder (or in the Request
therefor in the case of the first Interest Period relative
to any Tranche 1 Advance or Tranche 2 Advance or the
Interest Period in the case of any Tranche 3 Advance)
34
specifying the duration of such Interest Period, which in
the case of any Tranche 1 Advance or Tranche 2 Advance shall
be of one, three or six months and in the case of any
Tranche 3 Advance shall be of one, two, three or six
months, or in each case such other duration as may be agreed
by the Facility Agent after consultation with the Reference
Banks or as may be required in order to comply with
Clause 10.3 (provided that if such duration is over six
months then the Facility Agent may only agree with the
unanimous consent of the Banks participating in such
Advance). If the relevant Borrower fails to specify the
duration of an Interest Period for any Advance the duration
of that Interest Period shall be three months subject as
otherwise required in order to comply with any other
provision of this Agreement.
10.2 Splitting
The relevant Borrower may, in any notice given pursuant to
Clause 10.1 (or in any Request therefor) split any Tranche 1
Advance or Tranche 2 Advance into any number of separate
Tranche 1 Advances or Tranche 2 Advances, respectively (each
having an Interest Period of a different duration,
separately designated in such notice or Request), provided
that each such separate Advance must be of a minimum amount
of 100,000,000 pounds. Each Advance resulting from any such
splitting shall continue as a separate Advance unless and
until consolidated with another Advance having the same
Tranche designation.
10.3 Restrictions on selection
(a) Each Borrower shall use its reasonable endeavours (i) to
ensure the selection by it of the duration of Interest
Periods pursuant to Clause 10.1 so that the Tranche 1
Repayment Date will also be an Interest Date relative to all
outstanding Tranche 1 Advances and that the Tranche 2/3
Repayment Date will also be an Interest Date relative to all
outstanding Tranche 2 Advances and Tranche 3 Advances,
(ii) in relation to the Tranche 1 Advances and Tranche 2
Advances, to ensure the selection by it of the duration of
Interest Periods pursuant to Clause 10.1 so that Tranche 1
Advances and Tranche 2 Advances are aggregated and
consolidated pursuant to Clause 10.4 into Tranche 1 Advances
and Tranche 2 Advances respectively of not less than
100,000,000 pounds each and (iii) to select the duration of
Interest Periods pursuant to Clause 10.1 so as to ensure
that no Advance shall have an Interest Period expiring after
the Repayment Date relative thereto.
(b) If it appears to the Facility Agent in good faith that the
requirements of paragraph (a) above will not be met by a
Borrower's selection of any Interest Period, the Facility
Agent, on behalf of and after consultation with that
Borrower, may select a different duration for such Interest
Period (which shall prevail over that selected by that
Borrower) in order to facilitate the meeting of such
requirements.
10.4 Duration and Consolidation
(a) The first (or the) Interest Period relative to each Advance
shall commence on its Utilisation Date and end on the last
day of the period selected or provided for in accordance
with this Clause. Any subsequent Interest Periods in
relation to a Tranche 1 Advance or Tranche 2 Advance shall
commence on the expiry of the immediately preceding Interest
Period relating thereto and end on the last day of the
period so selected or provided therefor. If any Interest
Period for any Advance would otherwise end on a day which is
not a Business Day, such Interest Period shall end instead
on the next Business Day.
35
(b) If any Interest Period relating to any Tranche 1 or Tranche
2 Advance expires on an Interest Date relative to
(respectively) another Tranche 1 Advance or Tranche 2
Advance (as the case may be), then, with effect from such
Interest Date, such Tranche 1 Advances or Tranche 2 Advances
(as the case may be), subject to Clauses 10.1, 10.2 and
10.3, shall be aggregated and consolidated to form
(respectively) a single Tranche 1 Advance or Tranche 2
Advance.
10.5 Notification
The Facility Agent will notify the relevant Banks and the
Company and (if different) the relevant Borrower of the
duration of each Interest Period relating to each Advance
promptly after ascertaining the same.
11. INTEREST
11.1 Rate
The rate of interest applicable to each Advance for each (or
the) Interest Period relative to it shall be the rate per
annum determined by the Facility Agent to be the aggregate
of:-
(a) the Margin;
(b) LIBOR relative to such Advance for such Interest
Period; and
(c) the Additional Cost, if any, relative to such Advance
from time to time during such Interest Period.
11.2 Due dates
Save as otherwise provided herein, interest accrued on each
Advance for each Interest Period relative thereto shall be
paid by the Borrower in respect of such Advance in Sterling
in arrear on the last day of such Interest Period and also,
in the case of an Interest Period of a duration exceeding
six months, on the last day of each consecutive period of
six months from the first day of such Interest Period.
11.3 Default interest
If any Obligor fails to pay any amount payable by it under
this Agreement on the due date therefor, such Obligor, on
demand by the Facility Agent from time to time, shall pay
interest on such overdue amount (including overdue default
interest) in the currency in which such overdue amount is
for the time being denominated from the due date up to the
date of actual payment, both before and after judgement, at
a rate determined by the Facility Agent to be one per cent.
(1%) per annum above that which would be payable if such
overdue amount constituted, during the period of non-payment
thereof, an Advance made to such Obligor in the same
currency as the overdue amount for successive Interest
Periods of such duration of up to three months as the
Facility Agent, after consultation with the Company to the
extent practicable in the circumstances, may designate from
time to time. Such rate shall be determined or redetermined
on the first Business Day of each such Interest Period. In
calculating the amount of default interest due from the
Guarantor in respect of any overdue amount due from any
Borrower, the amount of default interest accrued due from
such Borrower and the amount of overdue default interest
accrued due from the Guarantor shall not be double counted.
36
11.4 Bank basis
Interest shall accrue from day to day, and be computed on
the basis of a year of 365 days for the actual number of
days elapsed.
11.5 Determination conclusive; notification
Each determination of a rate of interest by the Facility
Agent under this Agreement shall, in the absence of manifest
error, be conclusive and shall be promptly notified to the
Company, the relevant Borrower and the Banks.
12. PAYMENTS
12.1 Funds, place and currency
Unless otherwise agreed between the Banks, the Facility
Agent and the Company, all payments to be made to the
Facility Agent by any Obligor under any Finance Document or
by any Bank under this Agreement shall be made on the due
date to the Facility Agent at The Royal Bank of Scotland
plc, sort code 16-00-34, for credit to Account Number
00000000 or to such other account at such bank or office as
the Facility Agent shall designate by not less than three
Business Days' notice to the Company or such Bank (as the
case may be).
12.2 Application
Each payment received by the Facility Agent for the account
of another person pursuant to Clause 12.1 shall:-
(a) in the case of a payment received for the account of
any Borrower, be made available by the Facility Agent
to that Borrower by application, on the date and in the
funds of receipt:-
(i) first, in or towards payment of any amounts then
due and payable (and unpaid) by that Borrower
under this Agreement; and
(ii) second, in payment to such account as that
Borrower shall have properly designated for the
purpose in the relevant Request or otherwise in
writing; and
(b) in the case of any other payment, be made available by
the Facility Agent to the person for whose account the
payment was received (in the case of a Bank, for the
account of its Facility Office) on the date and in the
currency and funds of receipt to such account of the
person with the office or bank in the country of the
currency concerned as that person shall have previously
notified to the Facility Agent for the purposes of this
Agreement.
The Facility Agent (or the Security Agent in the case of
monies received pursuant to the Security Documents) shall
promptly distribute monies received for the account of the
Banks among the Banks pro rata to their respective
entitlements and in the funds and currency of receipt,
provided that the Facility Agent or Security Agent (as the
case may be) may deduct therefrom any amount due to the
Facility Agent pursuant to Clause 12.4 or 30.2.
37
12.3 Currency
Any amount payable under this Agreement, unless otherwise
provided, shall be payable in Sterling.
12.4 Recovery of payments
Unless the Facility Agent shall have received notice from a
Bank or a Borrower not later than 11.00 a.m. on the Business
Day prior to the date upon which such Bank or a Borrower
(the "Party Liable") is to pay an amount to the Facility
Agent for transfer to any Borrower or any Bank respectively
(the "Payee") that the Party Liable does not intend to make
that amount available to the Facility Agent on the due date,
the Facility Agent may assume that the Party Liable has paid
that amount to the Facility Agent on that date in accordance
with this Agreement. In reliance upon that assumption, the
Facility Agent may (but shall not be obliged to) make
available to the Payee(s) a corresponding sum. If that
amount is not in fact so made available to the Facility
Agent, the Payee(s) shall forthwith on demand repay that sum
to the Facility Agent together with interest on such sum
until its repayment at a rate determined by the Facility
Agent to reflect its cost of funds incurred in making
available the corresponding amount to that Payee(s) (any
such determination to be conclusive in the absence of
manifest error). The Facility Agent may make a demand on a
Borrower as Payee only if and to the extent that the
Facility Agent has demanded the appropriate funds from the
relevant Bank and those funds have not been paid by that
Bank forthwith after the demand. The provisions of this
Clause are without prejudice to any rights the Facility
Agent and the Payee may have against the Party Liable.
12.5 Non-Business Days
Whenever any payment under any Finance Document shall become
due on a day which is not a Business Day, the due date for
that payment shall be extended to the next Business Day.
During any such extension of the due date for payment of any
principal, interest shall be payable on such principal at
the rate payable on the original due date.
12.6 Appropriations
Other than in the case of prepayment to a specific Bank
permitted by the terms of this Agreement, in the case of a
partial payment by any Obligor of amounts due and payable
under any Finance Document, the Facility Agent or, as the
case may be, the Security Agent may appropriate such payment
towards such of the amounts due and payable by such Obligor
under this Agreement as the Facility Agent or, as the case
may be, the Security Agent may with the approval of the
Majority Banks decide (subject to the requirement that such
payment shall be appropriated first towards those overdue
amounts which attract the higher Margin), and each part of
any payment so appropriated towards a particular amount due
and payable under any Finance Document shall be treated as
received by the Facility Agent or, as the case may be, the
Security Agent for the account of the Banks to whom such
particular amount is due, in each case pro rata to the
respective amounts thereof due to each of them from such
Obligor. Any such appropriation shall override any
appropriation made by any Obligor.
38
12.7 Certifications
Save as otherwise provided herein, any certification or
determination of a rate or amount or other matter as
referred to herein and made by the Facility Agent or a Bank,
as the case may be, shall be prima facie evidence of the
same.
13. TAXES
13.1 Applicable Taxes
As used in this Agreement, "Applicable Taxes" means all
Taxes imposed by or in the jurisdiction in which the
relevant Obligor is resident or any other country through or
out of which the relevant payment is made or by any
federation or organisation of which that country may be a
member or by or through any taxation authority of that
country, federation or organisation on any payment by any
Obligor or any Finance Party to any Finance Party, under any
Finance Document, other than Taxes imposed on that payment
which would not have been imposed on that payment if the
Finance Party to which or for whose account that payment was
made was a Recognised Bank.
13.2 No Set-Off or Deductions
All payments to be made by any Obligor under any of the
Finance Documents shall be made:-
(a) without set-off or counterclaim; and
(b) free and clear of all and without deduction for or on
account of any Applicable Taxes, except to the extent
that such Obligor is compelled by law to make payment
subject to the Applicable Taxes.
13.3 Gross-up
If any Applicable Taxes or amounts in respect thereof must
be deducted from any payment by an Obligor under any Finance
Document or any other deductions must be made from any
amounts paid by any Obligor (or from any corresponding
payment by any Finance Party to any other Finance Party
under or pursuant to the terms of any Finance Document), or
any such payment shall otherwise be required to be made
subject to any Applicable Tax, such Obligor shall pay such
additional amounts as may be necessary to ensure that each
Finance Party receives a net amount after deduction for and
payment of all Applicable Taxes equal to the full amount
which it would have received had payment not been made
subject to the Applicable Tax. All Applicable Taxes
required to be deducted from any payment by any Obligor
under any Finance Document shall be deducted and paid when
due by such Obligor to the applicable Tax authorities. Each
Finance Party shall notify each Obligor through the Facility
Agent of the application of this Clause 13.3 to any payment
then due or to become due to it under any Finance Document
promptly upon its becoming aware of the same.
13.4 Tax Receipts
As soon as reasonably practicable after each payment by any
Obligor of any Applicable Tax (or any Tax which would be an
Applicable Tax save for the exceptions contained in
Clauses 13.1(a) or (b)) on any payment by it under any
Finance Document, such Obligor shall deliver to the Facility
39
Agent for the relevant payee Finance Party or other party to
this Agreement evidence reasonably satisfactory to the payee
(including copies of relevant Tax receipts received by such
Obligor, which such Obligor shall use its reasonable
endeavours to obtain) that the relevant Tax has been duly
remitted to the appropriate authority.
13.5 Tax Saving
(a) In the event that, following the imposition of any
Applicable Tax on any payment by any Obligor (or any
corresponding payment by any Finance Party to any other
Finance Party under this Agreement) in consequence of which
such Obligor is required under Clause 13.3 to pay such
Applicable Tax or to pay any additional amount in respect of
it, any Finance Party shall in its sole opinion and based on
its own interpretation of any relevant laws or regulations
(but acting in good faith) receive or be granted a credit
against or remission for or deduction from or in respect of
any Applicable Tax payable by it, or shall obtain any other
relief in respect of Applicable Tax on its profits or
income, which in such Finance Party's opinion in good faith
is both reasonably identifiable and quantifiable by it
without requiring such Finance Party or its professional
advisers to expend a material amount of time or incur a
material cost in so identifying or quantifying (any of the
foregoing, to the extent so reasonably identifiable and
quantifiable, being referred to as a "saving"), such Finance
Party shall, to the extent that it can do so without
prejudice to the retention of the relevant saving and
subject to such Obligor's obligation to repay the amount to
such Finance Party if the relevant saving is subsequently
disallowed or cancelled (which repayment shall be made
promptly on receipt of notice by such Finance Party of such
disallowance or cancellation), reimburse such Obligor
promptly after receipt of such saving by such Finance Party
with such amount as such Finance Party shall in its sole
opinion but in good faith have concluded to be the amount or
value of the relevant saving.
(b) Nothing contained in this Agreement shall interfere with the
right of any Finance Party to arrange its Tax and other
affairs in whatever manner it thinks fit and, in particular,
no Finance Party shall be under any obligation to claim
relief from Tax on its corporate profits, or from any
similar Tax liability, in respect of the Applicable Tax, or
to claim relief in priority to any other claims, reliefs,
credits or deductions available to it or to disclose details
of its Tax affairs. No Finance Party shall be required to
disclose any confidential information relating to the
organisation of its affairs.
(c) Each Finance Party will notify the relevant Obligor promptly
of the receipt by such Finance Party of any saving and of
such Finance Party's opinion as to the amount or value of
that saving.
13.6 Right to Prepay
In the event that any such Applicable Tax is required to be
deducted from any payment to be made by any Borrower to any
Finance Party under this Agreement (or on any corresponding
payment by the Finance Party to any other Finance Party
under this Agreement) and, in consequence, any Borrower is
or would be obliged under Clause 13.3 to pay any additional
amounts to such Finance Party in respect of the Applicable
Tax, such Borrower may prepay the whole (but not part) of
the then outstanding amount of such Finance Party's
participation in the Utilisations made by it, together with
all interest and other charges accrued on those
participations and all other amounts payable to such Finance
Party under the Finance Documents, on giving not less than
40
ten Business Days' prior written notice to such Finance
Party (through the Facility Agent).
13.7 Recognised Bank
Each Finance Party confirms to the Company that it is a
Recognised Bank and agrees to notify the Company promptly if
it becomes aware that (a) it is no longer a Recognised Bank,
or (b) Clause 13.3 may for any other reason apply in respect
of payments made to it or to the Facility Agent for its
account.
14. MARKET DISRUPTION
14.1 Disruption events
If, in relation to any Advance or proposed Advance and any
(or the) Interest Period relative thereto:-
(a) no (or where there is more than one Reference Bank,
only one) Reference Bank supplies an interest rate to
the Facility Agent as required by the definition of
LIBOR after the Facility Agent has requested such a
rate from the Reference Banks; or
(b) the Facility Agent shall have received notification
from a Bank or Banks whose participations in such
Advance constitute at least fifty per cent. (50%) by
value of such Advance that by reason of circumstances
affecting the London Interbank Market:
(i) deposits in Sterling for the same period as such
Interest Period will not be readily available to
them in the London Interbank Market in sufficient
amounts in the ordinary course of business to fund
their respective participations in such Advance
for such Interest Period; or
(ii) whilst such deposits are so available, the cost of
such deposits exceeds LIBOR as determined in
relation to such Advance for such Interest Period,
the Facility Agent shall promptly give written notice of
such determination or notification to the relevant Borrower,
the Company (if different) and each of the Banks.
14.2 Effect
The giving of any notice by the Facility Agent pursuant to
Clause 14.1(a) or 14.1(b) shall not relieve any Bank of any
obligation it may have under this Agreement to advance, on
the relative Utilisation Date, its participation in any
Advance (including any Advance for which a Request was given
prior to such notice by the Facility Agent).
14.3 Negotiation and Substitute Basis
During the period of 15 days after the giving of any notice
by the Facility Agent pursuant to Clause 14.1, the Facility
Agent (in consultation with the Banks) shall negotiate with
the relevant Borrower and the Company in good faith with a
view to ascertaining whether a substitute basis (a
"Substitute Basis") may be agreed for the making of further
Advances and/or the maintaining of any existing Advances to
which such notice by the Facility Agent related for the
current Interest Period relative to those Advances. If a
Substitute Basis is agreed by all the Banks, the relevant
41
Borrower and the Company it shall apply in accordance with
its terms from the commencement of such Interest Period.
The Facility Agent shall not agree any Substitute Basis on
behalf of any Bank without the prior consent of that Bank.
14.4 Cost of Funds
If a Substitute Basis is not so agreed by the relevant
Borrower, the Company and all the Banks by the end of the
15 day period, each Bank's participation in each then
existing Advance to which the notice by the Facility Agent
related shall bear interest during the current Interest
Period relative thereto at the rate certified by such Bank
to be its cost of funds (from such sources as it may
reasonably select out of those sources then available to it)
for such Interest Period in relation to such Advance, plus
the applicable Margin.
14.5 Right to Prepay
Where Clause 14.4 applies the relevant Borrower, upon giving
not less than five Business Days' prior written notice
(through the Facility Agent) to any Bank , may prepay the
whole (but not part) of the participation of that Bank in
all (but not some only of) the existing Advances to which
the notice by the Facility Agent related and, if so
specified in the notice, in all (but not some only of) the
other outstanding Utilisations of that Borrower, together
with all interest accrued on those Advances and all other
amounts payable under this Agreement in connection with the
Utilisations prepaid.
14.6 Review of Substitute Basis
So long as any Substitute Basis is in force or Clause 14.4
shall apply in relation to any Advance, the Facility Agent,
in consultation with the relevant Borrower, the Company and
each Reference Bank shall from time to time, but not less
often than monthly, review whether or not the circumstances
referred to in Clause 14.1 still prevail with a view to
returning to the normal interest provisions of this
Agreement.
14.7 Bills
(a) If, in relation to any Bills:
(i) the Facility Agent determines that adequate and fair
means do not exist for ascertaining the applicable
EBDR; or
(ii) the Facility Agent determines that the Bills do not
comply with the then current Bank of England
regulations for Sterling bankers' acceptances (save in
consequence of the Bank on which they are drawn not
being a bank whose acceptances are eligible for
discounting at the Bank of England according to the
Bank of England's eligibility criteria in force at the
date hereof),
the Agent shall promptly notify the relevant Borrower and
each of the Banks of that fact and that this Clause 14.7 is
in operation.
(b) After any notification under paragraph (a) above:
(i) the relevant Bills shall not be accepted;
42
(ii) in the case of sub-paragraph (a)(i) above, no further
Requests for Utilisations by way of Bills may be
delivered until the Facility Agent notifies the Company
that it is once again able to determine EBDR; and
(iii) any Request given by or on behalf of any Borrower
pursuant to clause 6.1 prior to such notification for
Bills not yet accepted shall be treated as if it were
instead a request for an Advance made pursuant to
clause 5.1 specifying an Interest Period of one month
(provided that period does not extend beyond the
Tranche 3 Availability Period) of an amount equal to
the principal amount of the requested Bills, provided
that for the purposes of Clause 11.1 (Interest Rate),
if necessary, LIBOR may be determined by the Facility
Agent at or about 1.00 p.m. on the applicable
Utilisation Date.
15. INCREASED COSTS
15.1 Increased Costs
Subject to Clause 15.3, if the result of:-
(a) any change after the date hereof in or the introduction
after the date hereof of, or any change after the date
hereof in the interpretation, administration or
application by any competent court, authority or
organisation in the relevant jurisdiction of, any law,
regulation or treaty or in or of any official directive
or official request from, or the rules of, any
governmental, fiscal, monetary or regulatory (including
self-regulatory) authority, organisation or agency
(whether or not having the force of law but, if not
having the force of law, being a regulation, treaty,
official directive, official request or rule which it
is the practice of banks in the relevant jurisdiction
to comply with) after the date hereof which affects
banks or financial institutions of the same type as any
Finance Party in that jurisdiction; or
(b) compliance by any Finance Party (or any Holding Company
of such Finance Party) with any such change or
introduction;
including, in each case without limitation, those relating
to Taxation, reserves, special deposit, cash ratio,
liquidity or capital adequacy requirements or other forms of
banking, fiscal, monetary or regulatory controls, is that:-
(i) any Finance Party (or any Holding Company of such
Finance Party) incurs an increased cost as a result of
its (or such Finance Party's) having entered into,
and/or performing and/or maintaining and/or funding its
(or such Finance Party's) obligations under, any
Finance Document; or
(ii) any Finance Party (or any Holding Company of such
Finance Party) incurs an increased cost in making,
funding or maintaining all or any advances comprised in
a class of advances or acceptances formed by or
including its (or such Finance Party's) participation
in some or all of the Utilisations made or to be made
under this Agreement; or
(iii) any amount receivable by any Finance Party under
any Finance Document is reduced (save to the extent
matched by a reduction in the cost of providing the
Facilities) or the effective rate of return to any
43
Finance Party (or any Holding Company of such Finance
Party) under any Finance Document or on its (or such
Holding Company's) capital employed for the purposes of
this Agreement is reduced; or
(iv) any Bank (or any Holding Company of such Finance Party)
makes any payment or forgoes any interest or other
return on or calculated by reference to any amount
received or receivable by it (or by such Bank) from any
Obligor or the Facility Agent or the Security Agent or
any other Bank under any Finance Document;
and such increased cost (or the relevant proportion
thereof), reduction, payment, forgone interest or other
return is not compensated for by any other provision of this
Agreement (including, without limitation, by any Additional
Cost payable pursuant to Clause 11.1(c)), then and in each
such case:-
(A) such Finance Party shall notify the Company through the
Facility Agent in writing of that event promptly upon
its becoming aware of the event including, in
reasonable detail, particulars of the event;
(B) subject as provided below and to Clause 2.4(a), within
five Business Days after receipt by any Borrower
(directly or through the Company) of a written demand
from time to time by such Finance Party through the
Facility Agent accompanied by a certificate of such
Finance Party specifying the amount of compensation
claimed and setting out the calculation of the amount
in reasonable detail, such Borrower shall pay to the
Facility Agent for the account of such Finance Party
(or, as the case may be, Holding Company of such
Finance Party) such amount as shall compensate such
Finance Party (or such Holding Company) for such
increased cost (or, in the case of (i) or (ii) above,
the portion of such increased cost as is attributable
to its making, funding or maintaining Advances and/or
accepting and paying Bills or maintaining its
obligation, if any, to participate in Utilisations
under this Agreement), reduction, payment or forgone
interest or other return. Nothing in this Clause shall
oblige any Finance Party (or any Holding Company of
such Finance Party) or the Facility Agent or the
Security Agent to disclose any confidential information
relating to the organisation of its affairs.
Notwithstanding the foregoing, any claim by any Bank
pursuant to this Clause 15.1 in respect of any period
more than 90 days before such Bank gave notice pursuant
to paragraph (A) above of the relevant event shall be
disallowed.
15.2 Right to Prepay
Where Clause 15.1 applies the relevant Borrower, upon giving
not less than five Business Days' notice to that Finance
Party (being a Bank) may prepay the whole (but not part
only) of that Finance Party's participation in all (and not
some only of) the outstanding Advances and Bills made or
issued to or for the account of that Borrower, together with
all interest and other charges on or in respect thereof, and
all other amounts payable by it under the Finance Documents
to such Finance Party, provided always that any such notice
by such Borrower is given whilst circumstances exist
entitling such Finance Party to claim compensation under
this Clause 15.
44
15.3 Exceptions
Clause 15.1 shall not apply so as to oblige the Company or
any other Borrower to compensate any Finance Party for
Applicable Taxes (to the extent that the provisions of
Clause 13.3 fully and effectively compensate therefor) or
for any Taxes which would have been Applicable Taxes save
only for any failure by the relevant Finance Party to
satisfy the exception to Clause 13.1 or for any increased
cost, reduction, payment or forgone interest or other
return:-
(a) resulting from any change in or the introduction of, or
any change in the interpretation or application of, any
law, regulation, treaty, directive, request or rules
relating to, or any change in the rate of, Taxation on
the overall net income of such Bank imposed in the
jurisdiction in which such Finance Party's principal
office for the time being is situate or on the overall
net income of such Finance Party's Facility Office
imposed in the jurisdiction in which that office is
situate; or
(b) resulting from the implementation by the applicable
authorities having jurisdiction over such Finance Party
and/or its Facility Office of the matters set out in
the statement of the Basle Committee on Banking
Regulation and Supervisory Practices dated July, 1988
and entitled "International Convergence of Capital
Measurement and Capital Standards", to the extent, at
the rates and according to the timetable provided for
therein; or
(c) attributable to such Finance Party after the date of
this Agreement entering into a commitment to lend to a
third party which is, at the time that commitment is
entered into, in breach of any law, regulation, treaty,
directive, request or rule relating thereto as
aforesaid.
16. ILLEGALITY
If any change after the date hereof in or the introduction
after the date hereof of any law, regulation, treaty or
(whether or not having the force of law but, if not having
the force of law, being one with which it is the practice of
banks in the relevant jurisdiction to comply) official
directive or rule of any governmental, fiscal, monetary or
regulatory (including self regulatory) authority,
organisation or agency, having jurisdiction (together
"Laws"), or any change after the date hereof in the
interpretation, administration or application of Laws by a
competent court or the relevant authority, organisation or
agency or compliance by any Finance Party with any such
change or introduction of Laws or change in interpretation,
administration or application of Laws, shall make it (or
make it apparent that it is) unlawful or a breach of Laws
for any Finance Party to make available or fund or maintain
the Utilisations or any part of the Utilisations under this
Agreement or to give effect to its obligations and exercise
its rights as contemplated by this Agreement, that Finance
Party may, by notice to the Obligors' Agent through the
Facility Agent, declare that to the extent necessary to
avoid any such illegality or breach of Laws its obligations
to the Company and the other Borrowers under the Finance
Documents shall be terminated forthwith or, if later, on the
latest date to which the obligations may remain in effect
without causing the Finance Party to be in breach of Laws,
whereupon:-
(a) Prepay: each Borrower will forthwith, or by such later
date as shall be immediately prior to the illegality or
breach in question taking effect, prepay such part of
such Finance Party's participation in the Utilisations
made by such Borrower together with all interest and
other charges accrued thereon to the date of the
prepayment and all other amounts payable to such
45
Finance Party under the Finance Documents as shall be
necessary to avoid any such illegality or breach by
such Finance Party of any Laws; and
(b) Commitments: to the extent necessary to avoid any such
illegality or breach of Laws such Finance Party's
Commitments shall be cancelled and reduced to nil.
17. MITIGATION
17.1 Mitigation
If circumstances arise in respect of any Finance Party which
would, or upon the giving of notice would, result in the
operation of Clause 13, 14, 15 or 16 to the detriment of any
Borrower:-
(a) such Finance Party shall promptly upon becoming aware
of the same notify the Company and, upon the written
request of such Borrower, shall enter into discussions
with the Company and such Borrower with a view to
determining what mitigating action might be taken by
such Finance Party, including discussion of the
possibility of a change in its Facility Office or
transfer of its participation in the Facilities and its
Commitments to another bank; and
(b) at the request of the Company, the Facility Agent will
enter into discussions with the Company with a view to
determining what mitigating action might be taken by
the Facility Agent with respect to the administration
of this Agreement by the Facility Agent;
Without limiting or reducing the obligations of the Obligors
(or any of them) under Clauses 13, 14, 15 or 16, the
relevant Finance Party, shall upon the written request of
the Company take such reasonable steps as may be practical
and open to it to mitigate or remove the effects of such
circumstances including, without limitation, a change in its
Facility Office or transfer of its participation in the
Facilities and its Commitments to another bank (or
termination of its Commitments and prepayment of its
participation in the Utilisations coupled with the
assumption by another bank of a like participation and
Commitment) reasonably acceptable to or nominated by the
relevant Borrower and the Company or the restructuring of
its participation in this Agreement in a manner which will
avoid the circumstances in question and on terms acceptable
to the Facility Agent, such Finance Party and the relevant
Borrower and the Company, provided that nothing in this
Clause shall oblige any Finance Party or the Facility Agent
to take any such step if, in the opinion of such Finance
Party or the Facility Agent (such opinion being conclusive),
as the case may be, any such step might reasonably be
expected to have an adverse effect upon its business,
operations or financial condition or the management of its
Tax affairs or its return in relation to its participation
in the Utilisations or cause it to incur any material costs
or expenses.
17.2 Costs and Expenses
Any costs and expenses reasonably incurred by any Finance
Party pursuant to this Clause 17 shall be paid by the
relevant Borrowers within five Business Days after receipt
of a written demand specifying the same in reasonable
detail.
46
18. GUARANTEE
18.1 Guarantee
In consideration of the Finance Parties entering into this
Agreement and/or becoming party to this Agreement pursuant
to a Substitution Certificate or otherwise and/or
participating or agreeing to participate in any Utilisation,
each Guarantor hereby irrevocably and unconditionally and
jointly and severally:-
(a) guarantees to each Finance Party, as principal obligor
and not merely as surety (or similar in any applicable
jurisdiction), prompt performance by each other Obligor
of all its payment obligations under the Finance
Documents and the payment of all sums payable now or in
the future to such Finance Party by each other Obligor
under or in connection with the Finance Documents when
and as the same shall become due;
(b) undertakes with each Finance Party that, if and
whenever any other Obligor does not pay any amount when
due from it under or in connection with any Finance
Document, such Guarantor will on demand pay such amount
as if such Guarantor instead of such other Obligor were
expressed to be the primary obligor, together with
interest on that sum at the rate per annum from time to
time payable by that other Obligor on that sum from the
date when that sum becomes payable by such Guarantor
under this Agreement until payment of that sum in full;
and
(c) indemnifies each Finance Party on demand against any
loss or liability suffered by it under any Finance
Document as a result of any obligation guaranteed by
such Guarantor being or becoming unenforceable, invalid
or illegal.
18.2 Continuing Guarantee
This guarantee is a continuing guarantee and shall extend to
the ultimate balance of all sums payable by the Obligors or
any of them under the Finance Documents.
18.3 Reinstatement
Where any discharge (whether in respect of the obligations
of any Obligor, any security for such 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 repaid on
insolvency, administration, liquidation or otherwise without
limitation, the liability of each Guarantor under this
guarantee shall continue as if there had been no such
discharge or arrangement. Each Finance Party shall be
entitled to concede or compromise any claim that any such
payment, security or other disposition is liable to
avoidance or repayment.
18.4 Waiver of Defences
Except to the extent that such Guarantor is specifically
released in writing or its obligations are specifically
waived in a Waiver Letter, the obligations of each Guarantor
under this Agreement shall not be affected by any
circumstance, act, omission, matter or thing which but for
this provision might operate to release or otherwise
exonerate such Guarantor from its obligations hereunder in
whole or in part, including without limitation and whether
or not known to any Obligor or any Finance Party:-
47
(a) any time, indulgence or waiver granted to or
composition with any other Obligor or any other person;
or
(b) the taking, variation, compromise, exchange, renewal or
release of, or refusal or neglect to perfect or take up
or enforce any rights or remedies against any security
or any other Obligor or any other person or any non-
presentment or non-observance of any formality or other
requirements in respect of any instruments or any
failure to obtain the full value of any security; or
(c) any legal limitation, disability, incapacity, lack of
power, authority or legal personality of, or
dissolution or change in the members or status of, or
other circumstance relating to any other Obligor or any
other person; or
(d) any variation (however fundamental and whether or not
involving any increase in the liability of any other
Obligor thereunder) or replacement of any Finance
Document or any other document or security (including
without limitation any Substitute Basis agreed pursuant
to Clause 14 and any agreement contemplated by this
Agreement) so that references to such Finance Document
or other document or security in this guarantee shall
include each such variation or replacement; or
(e) any unenforceability, illegality, invalidity or
frustration of any obligations of any other Obligor or
any other person under any Finance Document or any
other document or security, or any failure of any other
Obligor or proposed Additional Obligor to become bound
by the terms of any other Finance Document, in each
case whether through any want of power or authority or
otherwise; or
(f) any postponement, discharge, reduction, non-provability
or other similar circumstance affecting any obligation
of any other Obligor under a Finance Document resulting
from any insolvency, liquidation or dissolution
proceedings or from any law, regulation or order,
to the intent that such Guarantor's obligations under this
Agreement shall remain in full force and this guarantee be
construed accordingly as if there were no such circumstance,
act, omission, matter or thing.
18.5 Immediate Recourse
Each Guarantor waives any right it may have of first
requiring any Finance Party to proceed against or enforce
any other rights or security of or claim payment from or
file any proof or claim in any insolvency, administration,
winding up, bankruptcy or liquidation proceedings relating
to, any other Obligor or any other person before claiming
from such Guarantor under this Agreement.
18.6 Preservation of Rights
Until all amounts which may be or become payable by any and
all Obligors under or in connection with the Finance
Documents have been irrevocably paid and discharged in full
(whether by any Borrower or Guarantor or otherwise), after a
claim has been made pursuant to this guarantee each Finance
Party may:-
48
(a) refrain from applying or enforcing any other security,
monies or rights held or received by such Finance
Party, as the case may be, in respect of (or capable of
being applied in respect of) such amounts or apply and
enforce the same in such manner and order as such
Finance Party sees fit (whether against such amounts or
otherwise) and no Guarantor shall be entitled to the
benefit of the same; and
(b) hold in a suspense account (with liability to pay
interest on the monies held therein at the rate payable
to its corporate customers for deposits in the same
currency on like terms and in like amounts) any monies
received from any Guarantor or on account of any
Guarantor's liability under this Agreement.
18.7 Non-competition
Until all amounts which may be or become payable by any and
all Obligors under or in connection with the Finance
Documents have been irrevocably paid in full (whether by any
Borrower or Guarantor or otherwise), no Guarantor shall,
after a claim has been made on it pursuant to this
guarantee:-
(a) be subrogated to any rights, security or monies held,
received or receivable by any Finance Party or be
entitled to any right of contribution or indemnity in
respect of any payment made or monies received on
account of any Obligor's liability under any Finance
Document and, to the extent that any Guarantor is so
subrogated or entitled by law, such Guarantor hereby
(to the fullest extent permitted by law) waives and
agrees not to exercise those rights or security or that
right of contribution or indemnity;
(b) be entitled or claim to rank as a creditor in the
insolvency, administration, winding-up, bankruptcy or
liquidation of any Obligor in competition with any
Finance Party unless otherwise required by the Facility
Agent or by law (in which case the proceeds, if any, of
any claim in respect of any rights, security or monies
of any Finance Party to which such Guarantor was
subrogated, filed by such Guarantor with a receiver or
other similar official, will be paid by such Guarantor
to the Facility Agent to be applied in accordance with
the provisions of the Finance Documents); or
(c) be entitled to receive, claim or have the benefit of
any payment, distribution or security from or on
account of any Obligor or exercise any right of set-off
as against any Obligor (and, without prejudice to the
foregoing, each Guarantor shall forthwith pay to the
Facility Agent for the Finance Parties an amount equal
to any such set-off in fact exercised by it and
forthwith pay or transfer, as the case may be, to the
Finance Parties any such payment or distribution or
benefit of security in fact received by it).
18.8 Additional Security
This guarantee shall be in addition to and shall not in any
way be prejudiced by any other security (including, without
limitation, the Security Documents) now or hereafter held by
any Finance Party as security for or capable of being
applied against the obligations of any Obligor.
18.9 Certificate
A certificate of the Facility Agent as to any amount due
from any Borrower under this Agreement shall, in the absence
of manifest error, be prima facie evidence of such amount as
against each Guarantor.
49
19. ADDITIONAL BORROWERS
(a) If any Subsidiary of the Company wishes to become a Borrower
under this Agreement it and the Company shall each so notify
the Facility Agent (which shall in turn notify the Banks and
the Security Agent).
(b) If all the Banks confirm to the Facility Agent in writing
that they are in principle prepared to accept that
Subsidiary (and the Banks hereby so confirm with respect to
the Target once the Offer has become or been declared
unconditional in all respects and the Target has become a
Subsidiary of the Company) as a Borrower hereunder (subject
to such limitations as they may advise in the case of any
Subsidiary other than the Target), the Facility Agent shall
so notify the Banks and shall prepare and deliver to the
Company an Accession Agreement (appropriately completed and
subject to such limitations as are imposed).
(c) Upon receipt by the Facility Agent of the Accession
Agreement, signed on behalf of the Company for itself and
the existing Obligors, and by the proposed Additional
Borrower, the Facility Agent shall execute the same for
itself and on behalf of the Finance Parties and the Banks
and shall as promptly as practicable give notice of such
execution to all of the parties to the Accession Agreement.
Upon execution of such Accession Agreement as aforesaid, it
shall take effect in accordance with, but subject to, the
terms hereof and thereof.
20. REPRESENTATIONS AND WARRANTIES
20.1 Representations and Warranties
Each Obligor (or in the case of Clause 20.1(l), the Company
and Bidco only) represents and warrants to each of the
Finance Parties that:-
(a) Status: It is (and each of its Principal Subsidiaries
is) a company, duly incorporated and validly existing
under the laws of the place of its incorporation and
has the power to own its property and assets and carry
on its business as it is now being and will be
conducted. No Event of Default falling within any of
paragraphs (f) to (l) inclusive of Clause 23.1 has
occurred with respect to it or any of its Principal
Subsidiaries or any of its (or their) assets.
(b) Powers and authority: It has the power to enter into
and perform the Finance Documents and any other
Transaction Documents to which it is a party and the
transactions to be implemented pursuant thereto and has
taken all necessary action to authorise the entry into
and performance of those documents and transactions.
(c) Legal validity: Subject to the Reservations, this
Agreement constitutes, and any and each other
Transaction Document to which it is or will become a
party (when executed by it or on its behalf) will
constitute, its legal, valid and binding obligations
and (without limiting the generality of the foregoing)
any Security Document to which it is a party creates
the security interests which that Security Document
purports to create or, as the case may be, accurately
evidences a security interest which has been validly
created (except that no warranty is given as to whether
any such security interest is fixed or floating). To
the best of its knowledge and belief after reasonable
enquiry all such Transaction Documents (other than the
Finance Documents) have been duly authorised and
approved by the other parties thereto and constitute,
subject to the Reservations, the legal, valid and
binding obligations of those parties.
50
(d) Non-conflict: The entry into and performance by it of
this Agreement and any and each other Transaction
Document to which it is a party and the transactions to
be implemented pursuant to those documents do not and
will not conflict with:
(i) any law or regulation or any official or judicial
order applicable to it or any Licence or any
Licence Undertaking,
(ii) its memorandum or articles of association,
statutes, by-laws or other constitutional or
governing documents or any of its resolutions
(having current effect), or
(iii) any agreement or instrument to which it or
any Subsidiary of it is a party or which is
binding upon any of them or on its assets or those
of any such Subsidiary in such a manner or to such
an extent as to have a Material Adverse Effect or
in a manner or to an extent which is reasonably
likely to result in any material liability on the
part of any of the Finance Parties to any third
party by reason of any such conflict, nor will it
result in the creation or imposition of any
Encumbrance on any of its assets or those of any
Principal Subsidiary (save, in the case of the
Company and Bidco, for any Encumbrance created
pursuant to the Security Documents).
(e) No Default: (i) No Event of Default has occurred and
is continuing which has not been waived, and (ii) no
event has occurred and is continuing which has not been
waived and which constitutes or which, with the giving
of notice, expiry of any cure period, determination of
materiality or satisfaction of any other condition in
each case provided for in any such agreement or
document (other than the mere occurrence of such
event), is reasonably likely to constitute a default
under or in respect of any other agreement or document
to which it or any Subsidiary of it is a party in such
a manner or to such an extent as to have a Material
Adverse Effect.
(f) Consents: Any and all authorisations, approvals,
consents, licences, exemptions, filings, registrations
and other matters required on the part of any Obligor
or the Target pursuant to any law or the terms of the
Licence or any Licence Undertaking for or in
consequence of (i) the Offer, and/or (ii) the entry
into and performance by it of and/or the validity of
any of the Finance Documents and the Transaction
Documents to which it is a party or the transactions to
be implemented pursuant thereto and/or (iii) the
continued carrying on of the business of the Target and
the Group in the ordinary course, have been obtained or
effected or will be obtained or effected prior to the
date required by law to the extent that failure to do
so would have a Material Adverse Effect, save (in the
case of (ii)) for the filing in the United Kingdom of
the prescribed particulars of the Security Documents
pursuant to Section 395 of the Companies Xxx 0000 (as
amended), the registration of the transfers of the
shares which are the subject of mortgages and other
Encumbrances created by the Security Documents and
other filings and registrations necessary in connection
with the enforcement of the Security Documents.
(g) Accounts:
(i) Its Accounts most recently delivered to the
Facility Agent under Clause 21.2(a) have been
prepared, save as disclosed in notes to or
accompanying those Accounts, in accordance with
51
the provisions of Clause 21.2(d) and (in the case
of audited annual Accounts) present a true and
fair view of or (in the case of unaudited
Accounts) fairly present its and (if consolidated
Accounts) its Subsidiaries' financial position as
at the Accounting Date to which the same were
prepared and/or (as appropriate) the results of
operations and (in the case of annual Accounts)
changes in financial position during the
Accounting Period ending on the relevant
Accounting Date, subject, in the case of quarterly
and monthly Accounts, to normal year end
adjustments and to the lack of notes thereto.
(ii) Each of the information, reports and documents
delivered to the Facility Agent under Clause
21.2(b) was true and accurate in all material
respects as of the date thereof and did not omit
any material information required to be included
therein.
(h) Litigation: No litigation, arbitration or
administrative or regulatory proceedings or
investigations for which process or initiation claims
have been served on it or any of its Subsidiaries and,
to its knowledge, no litigation, arbitration,
administrative or regulatory proceedings involving it
or any of its Subsidiaries are pending or threatened,
which are reasonably likely to be determined adversely
to it or to such Subsidiary, and which, if so adversely
determined, would have a Material Adverse Effect.
(i) Tax liabilities: No claims are being or are reasonably
likely to be asserted against it or any of its
Subsidiaries with respect to Taxes which are reasonably
likely to be determined adversely to it or to such
Subsidiary and which, if so adversely determined, would
have a Material Adverse Effect. It and each of its
Subsidiaries is not materially overdue in the filing of
any Tax returns required to be filed and it and any of
its Subsidiaries has paid all Taxes shown to be due on
any Tax returns required to be filed by it or on any
assessments made against it (other than any being
contested in good faith by appropriate process in
respect of which adequate reserves are being
maintained) non-payment, or a claim for payment, of
which would in each such case have a Material Adverse
Effect.
(j) Encumbrances: No Encumbrance exists over its or any of
its Subsidiaries' assets which would cause a breach of
Clause 21.3(a) of this Agreement.
(k) Information Memorandum: (This representation and
warranty is given only upon issue and approval by the
Company in writing of an Information Memorandum.) All
material factual information contained in the
Information Memorandum was true (or, in the case of
information provided by any person other than the
Company or Bidco its or their advisors, was true to the
best of its knowledge and belief in all material
respects at the date (if any) ascribed thereto in the
Information Memorandum or (if none) at the date of the
relevant component of the Information Memorandum. Any
and all expressions of opinion or intention and any
forecasts and projections contained in the Information
Memorandum were arrived at after careful consideration,
were fair and were based on reasonable grounds, and the
Information Memorandum, taken as a whole, as of its
date was not misleading in any material respect and did
not omit to disclose any matter failure to disclose
which would result in any material information
contained in the Information Memorandum being
misleading in any material respect in the context of
this Agreement.
52
(l) Acquired Assets: All of the Shares which are acquired
by it pursuant to the Offer will be beneficially owned
by Bidco and Bidco will be entitled forthwith (but
subject to registration in the shareholders' register
of the Target of the transfer of those Shares, which
registration will be completed as soon as reasonably
practicable) to become the legal registered owner of
such Shares free from all Encumbrances, claims and
competing interests whatsoever save as expressly
permitted or created under this Agreement and the other
Finance Documents.
(m) Ownership of assets: Save to the extent disposed of
without breaching the terms of any of the Finance
Documents, it and each of its Subsidiaries has good
title to or valid leases or licences of or is otherwise
entitled to use all material assets necessary properly
to conduct its business the absence of which would have
a Material Adverse Effect.
(n) Documents:
(i) The documents delivered to the Facility Agent by
or on behalf of any Obligor pursuant to Clause 4.1
and any other provision of the Finance Documents
were genuine and in the case of copy documents,
were true, complete and accurate copies in all
material respects, of originals which had not been
amended, varied, supplemented or superseded in any
way which would be likely to affect materially and
adversely the interests of the Banks under the
Finance Documents, save as consented to pursuant
to a Waiver Letter.
(ii) The Press Release and Offer Document and any other
documents relating to the Offer furnished to the
Facility Agent, contain all the material terms of
the Offer. The Offer Document corresponds to the
terms of the Press Release in all material
respects. The Articles of Association of the
Company, the Subscription Agreement and the
Intercreditor Agreement contain all the material
terms of the agreements and arrangements between
CSW and the Company (and between CSW and any other
member of the Group) relating to the Company.
(o) Environmental Matters:
(i) It and its Subsidiaries have obtained any and all
requisite Environmental Licences required for the
carrying on of its business as currently conducted
and have at all times complied in all material
respects with (A) the terms and conditions of such
Environmental Licences and (B) all other
applicable Environmental Law which in each case,
if not complied with, would have a Material
Adverse Effect, and there are to its knowledge no
circumstances which may prevent or interfere with
such compliance in the future;
(ii) so far as it is aware (after due enquiry) no
Dangerous Substance has been used, disposed of,
generated, stored, transported, dumped, released,
deposited, buried or emitted at, on, from or under
any site or premises (whether or not owned,
leased, occupied or controlled by any Obligor or
any of its Subsidiaries and including any offsite
waste management or disposal location utilised by
any Obligor or any such Subsidiary) in
circumstances where this would be likely to result
53
in the imposition of a liability on any Obligor
which would have a Material Adverse Effect;
(iii) so far as it is aware (after due enquiry)
there is no Environmental Claim (whether in
respect of any site previously or currently owned
or occupied by any member of the Group or
otherwise) pending or threatened, and there are no
past or present acts, omissions, events or
circumstances that would be likely to form the
basis of any Environmental Claim (whether in
respect of any site previously or currently owned
or occupied by any member of the Group or
otherwise), against that Obligor which in each
case is reasonably likely to be determined against
that Obligor and which if so decided would have a
Material Adverse Effect.
(p) The Company: At the first Utilisation Date, save as
arises under the Transaction Documents and/or in
consequence of acceptances of the Offer and save also
for Offer Costs, neither the Company nor Bidco had any
material commitments or indebtedness.
(q) Licence:
(i) The Licence is in full force and effect, there
exist no material breaches of the terms of the
Licence or any Licence Undertakings and there are
no circumstances in existence which would entitle
the Director General or the Secretary of State to
seek to revoke the Licence;
(ii) There are no Licence Undertakings, other than
those copies of which have been delivered to the
Facility Agent pursuant to Clause 4.1.
20.2 Repetition
The representations and warranties set out in Clause 20.1
shall survive the execution of this Agreement and the making
of each Utilisation hereunder and shall be made on the date
hereof and be deemed to be repeated on the date of delivery
of each Request hereunder and on each Utilisation Date and
on each Interest Date, with reference to the facts and
circumstances then subsisting, as if made at each such time,
provided that:
(a) the representation and warranty set out in
Clause 20.1(k) shall be made only on the date of issue
and approval by the Company or Bidco in writing of any
Information Memorandum; and
(b) the representations and warranties set out in Clauses
20.1 (e), (h), (i), (l), (n)(ii), (p) and (q) shall not
be repeated after the first Utilisation Date.
21. UNDERTAKINGS
21.1 Duration
The undertakings in this Clause 21 shall remain in force
from and after the date of this Agreement and so long as any
amount is or may be outstanding under this Agreement or any
Commitment is in force.
21.2 Information and Accounting Standards
54
(a) Accounts: The Company shall furnish or procure that there
shall be furnished to the Facility Agent in sufficient
copies for each of the Banks:
(i) as soon as practicable (and in any event within 120
days) after the end of each annual Accounting Period:
(I) the audited consolidated accounts of the Group for
such Accounting Period
(II) the audited accounts of each Principal Subsidiary
for such Accounting Period,
in each case comprising at least an audited (in the
case of the Company and Bidco, consolidated) balance
sheet and profit and loss account and cash flow
statement for such Accounting Period;
(ii) as soon as practicable (and in any event within 60
days) after the end of each quarterly Accounting Period
commencing with the first quarterly Accounting Period
to commence after the Unconditional Date (other than
the final quarterly Accounting Period in any annual
Accounting Period), the unaudited consolidated accounts
of the Group for such Accounting Period approved by the
board of directors of the Company showing at least the
detailed information necessary to determine the
Company's compliance with its obligations under Clause
22.1, and in each case comprising at least a
consolidated balance sheet, profit and loss account and
cash flow statement for such Accounting Period,
including a written report by the Chief Financial
Officer on the main operating and financial issues
arising during such Accounting Period (if any);
(iii) at the same time as the Accounts for any annual
Accounting Period are delivered (or, if not delivered,
required to be delivered) pursuant to paragraph (i)
above:
(I) a report of the Auditors (A) setting out in
reasonable detail computations establishing, as at
the date of such Accounts, whether each of the
financial ratios set out in Clause 22.1 were
complied with, and (B) stating that the Auditors
did not in the course of their audit discover any
breach of the obligations set out in Clause 22.1
or, if they did, describing the same; and
(II) a certificate signed by two Authorised Signatories
of the Company (one of whom shall be the Chief
Financial Officer), stating that as at the date of
such certificate no Default has occurred and is
then continuing which has not previously been
waived pursuant to a Waiver Letter or providing
details of any such Default and of the remedial
action proposed to be taken;
(iv) at the same time as the Accounts for any quarterly
Accounting Period are delivered (or, if not delivered,
required to be delivered) pursuant to paragraph (ii)
above a certificate, signed by two Authorised
Signatories of the Company (one of which shall be the
Chief Financial Officer):
(I) setting out in reasonable detail computations
establishing, as at the date of such Accounts,
whether each of the financial ratios set out in
Clause 22.1 was complied with; and
55
(II) stating that as at the date of such certificate no
Default has occurred and is then continuing which
has not been previously waived pursuant to a
Waiver Letter or providing details of any such
Default and of the remedial action proposed to be
taken.
(v) at the same time as delivered to the Director General
pursuant to Condition 2 of Part II of any Licence held
by any member of the Group, copies of the accounting
statements delivered to the Director General pursuant
thereto.
(vi) as soon as practicable after the Unconditional Date
(and in any event no later than the date of delivery,
or, if not delivered, the last date for delivery, of
Accounts pursuant to Clause 21.2(a)(ii) for the first
full quarterly Accounting Period commencing after the
Unconditional Date) consolidated unaudited accounts of
the Company and its Subsidiaries prepared on a pro
forma basis for the three consecutive quarterly
Accounting Periods last commencing (on a pro forma
basis as described below) before the Unconditional
Date, showing at least the detailed information
necessary to determine the Company's compliance with
its obligations under Clause 22.1 and comprising at
least a consolidated balance sheet, profit and loss
account and cash flow statement for such Accounting
Periods and all prepared as if:
(A) the Unconditional Date had occurred on the first
day of the first of those three pro forma
Accounting Periods (and as if the Company had then
been in existence);
(B) all Utilisations had been made on dates falling at
the same intervals after the Unconditional Date
taken to have occurred as aforesaid as was the
case relative to the actual Unconditional Date
(but nevertheless applying the actual interest
rates determined and applicable hereunder); and
(C) any disposal of the Grid Shares by any member of
the Group (in the case of a disposal by the
Target, only if it occurs whilst the Target is a
member of the Group) and the consequent prepayment
of the Tranche 1 Advances had occurred on the
dates following the same number of days after the
Unconditional Date taken to have occurred as
aforesaid as was the case relative to the actual
Unconditional Date.
If Grid Shares are disposed of as aforesaid after
the preparation of such pro-forma accounts, the
Company shall promptly prepare and deliver revised
pro-forma accounts as aforesaid so as to include
such disposal and the consequent prepayment of the
Tranche 1 Advances in the manner described above.
(b) Notifications: The Company shall furnish or procure that
there shall be furnished to the Facility Agent in sufficient
copies for each of the Banks:-
(i) promptly, all notices, reports or other documents
despatched by the Company to its shareholders (in their
capacity as shareholders convening or concerning
shareholders meetings or to which they are entitled by
statute or under the Company's Articles of Association)
generally (or any class of them);
56
(ii) promptly after becoming aware of the same being
instituted or threatened, details of any litigation,
arbitration or administrative proceedings involving it
or any of its Subsidiaries which, if adversely
determined, would have a Material Adverse Effect or
which would involve liability or potential liability or
alleged liability in excess of 10,000,000 pounds or its
equivalent in other currencies or which involves the
Director General, the Secretary of State, any Licence
held by any member of the Group or any Licence
Undertaking;
(iii) promptly, such further information regarding its
financial condition, business and assets and that of
the Group and/or any member thereof (including any
requested amplification or explanation of any item in
any Accounts, forecasts, projections or other material
provided by any Obligor hereunder) as the Facility
Agent or the Majority Banks through the Facility Agent
may reasonably request from time to time;
(iv) promptly, upon being notified of the same, details of
all transfers of shares in the share capital of any
Obligor, and details of any issue or transfer of shares
in the capital of any member of the Group made after
the date hereof to any person who is not a member of
the Group;
(v) written details of any Default forthwith upon becoming
aware of the same, and of all remedial steps being
taken and proposed to be taken in respect of that
Default;
(vi) during the period from the date of issue and approval
by the Company to the earlier of (A) the date six
months thereafter, and (B) the close of syndication of
the Facilities as determined and confirmed to the
Company by the Facility Agent, the Company will notify
the Facility Agent in reasonable detail of any matters
(whether occurring prior to or after the date of
approval and issue of the Information Memorandum) which
cause the Information Memorandum when read without
knowledge of such matters to be inaccurate or
misleading in any material respect; and
(vii) promptly upon being aware that any modifications
to the Licence are being proposed by the Director
General or the Target and/or that any Licence
Undertaking is being requested by the Director General
or the Secretary of State, reasonable details thereof,
to be updated from time to time to reflect any changes.
(c) Audit and Accounting Dates: The Company will ensure that:-
(i) the annual Accounts to be delivered to the Facility
Agent pursuant to Clause 21.2(a)(i)(I) are audited by
the Auditors;
(ii) the Company shall at all times have duly appointed
Auditors or, in the event of resignation of the
Auditors, shall appoint replacement Auditors within a
reasonable time;
(iii) each financial year and each quarterly Accounting
Period of the Group shall end on an Accounting Date;
(iv) each of its financial years and each financial year of
each Subsidiary shall end on 31st March, and no member
of the Group will change its financial year end (other
than to 31st March) without the prior written consent
of the Facility Agent.
57
(d) Accounting Standards: The Company will ensure that all
Accounts shall be prepared in accordance with the Applicable
Accounting Principles and (except in the case of annual
audited Accounts provided pursuant to Clause 21.2(a)(i)(I))
in substantially the same format and with substantially the
same headings and other characterisations as in the Base
Financial Statements, or shall indicate in notes to or a
letter accompanying such Accounts any material departures
from the Applicable Accounting Principles and/or such
format, headings and characterisations..
(e) Accounts Letter: Where any Accounts have been prepared in
any respect so as to depart materially from the Applicable
Accounting Principles and/or the format, headings and
characterisations as applied and/or set out in the Base
Financial Statement, the Company shall provide or procure
that there is provided to the Facility Agent a written
explanation of such departure which the Facility Agent shall
forward to the Banks. If the Majority Banks and the Company
agree, such departure shall become part of the Applicable
Accounting Principles. If the Majority Banks and the
Company do not so agree, such departure shall not become
part of the Applicable Accounting Principles and the
Majority Banks may require that the Company furnish to the
Facility Agent for the Banks a statement that such departure
has not altered any of the numerical information required
for the purpose of establishing whether or not the Company
is in compliance with its obligations under Clause 22.1 or
(if it has) setting out the effects of such alteration in
reasonable detail.
21.3 Security Value
(a) Negative Pledge: No Obligor will, and each Obligor will
procure that no other member of the Group will, create or
permit to subsist any Encumbrance on the whole or any part
of its respective present or future business, assets or
undertaking, except for the following:-
(i) Encumbrances constituted or evidenced by the Security
Documents;
(ii) Encumbrances expressly permitted by a Waiver Letter,
provided that, except to the extent permitted by any of
the following exceptions, the principal amount of the
indebtedness secured by such Encumbrances shall not at
any time be increased beyond the amount so permitted,
save as permitted by a further Waiver Letter;
(iii) Encumbrances arising by operation of law (or by
agreement to the same effect) in the ordinary course of
business and not as a result of any default or omission
on the part of any member of the Group, including
without limitation (but subject as aforesaid) (A) any
rights of set-off with respect to demand or time
deposits with financial institutions and bankers' liens
with respect to property held by financial
institutions, save in each case where such arrangements
are deliberately established for the purpose of
affording security to the bank or financial institution
concerned and (B) Encumbrances with respect to Taxes;
(iv) Encumbrances over goods and documents of title to goods
(and related insurances) arising in the ordinary course
of letter of credit transactions entered into in the
ordinary course of trade;
(v) Encumbrances over assets (other than the Shares)
acquired by members of the Group and existing at the
date of their acquisition but not created in
contemplation of their acquisition, provided that (A)
58
the principal amount secured by any such Encumbrances
shall not be increased beyond the amount secured
thereby at the date of such acquisition and (B) such
Encumbrances are released and discharged within six
months after such acquisition;
(vi) Encumbrances over credit balances on bank accounts of
members of the Group created in order to facilitate the
operation of such bank accounts and other bank accounts
of such members of the Group with the same bank on a
net balance basis with credit balances and debit
balances on the various accounts being netted off for
interest purposes;
(vii) any Encumbrance created under or in connection
with or arising out of any pooling settlement,
arrangements or agreements (including, but without
limitation, the Pooling and Settlement Agreement) of
the electricity generation, supply and distribution
industry or any transactions or arrangements entered
into in a form usual in such industry in connection
with the management of risks relating thereto;
(viii) any Encumbrance created by a Project Finance
Subsidiary over an asset and/or the income, cash flow
or other proceeds deriving from an asset owned by it
which secures only Project Finance Indebtedness of that
Project Finance Subsidiary incurred for the purpose of
financing the acquisition, development, ownership and
operation of that asset;
(ix) any Encumbrance created over (and giving the creditor
recourse only to) the shares in the capital of a
Project Finance Subsidiary securing only Project
Finance Indebtedness of that Project Finance
Subsidiary; or
(x) Encumbrances (other than over the Shares) not otherwise
permitted pursuant to paragraphs (i)-(ix) (inclusive)
above together securing indebtedness in an aggregate
principal amount not exceeding 50,000,000 pounds (or its
equivalent in other currencies).
(b) Transactions similar to security: No Obligor will, and each
Obligor will procure that no member of the Group will, save
as permitted by a Waiver Letter:
(i) sell or otherwise dispose of any of its assets on terms
where such asset may be leased to or re-acquired by any
member of the Group; or
(ii) purchase any asset on terms providing for a retention
of title by the vendor or on conditional sale terms or
on terms having a like substantive effect to any of the
foregoing, except for assets purchased in the ordinary
course of business.
(c) Disposals: No Obligor will, and each Obligor will procure
that no member of the Group will, save as permitted by a
Waiver Letter either in a single transaction or in a series
of transactions whether related or not and whether
voluntarily or involuntarily, sell, transfer, lease or
otherwise dispose of:
(i) any shares in any member of the Group except for any
disposal to the Company and the disposal of shares in a
member of the Group holding only some or all of the
businesses and assets to whose disposal the Original
Banks have consented pursuant to paragraph (ii)(H)
below;
59
(ii) all or any substantial part of its respective assets or
undertaking (not being an asset referred to in
paragraph (i) above), other than:
(A) disposals of trading assets in the ordinary course
of trading on arm's length terms;
(B) disposals of assets (other than any interest in
real property) where the net proceeds of such
disposal will be applied with reasonable
promptness in or towards acquiring other assets,
in the reasonable opinion of the person effecting
the disposal, comparable or superior as to type,
value and quality;
(C) disposals of plant and equipment or other like
assets, not required for the efficient operation
of its business substantially as currently
conducted, on arm's length terms;
(D) transfers of cash in the ordinary course of its
business unless otherwise prohibited by the terms
of the Finance Documents;
(E) the disposal of investments on arm's length terms
for cash or in exchange for other such
investments;
(F) disposals of assets by a member of the Group to
the Company or another member of the Group in
which the Company owns directly or indirectly a
corresponding percentage of the ownership
interest;
(G) the disposal of Grid Shares for cash on arm's
length terms;
(H) any disposals to which the Original Banks have
consented in writing on or prior to the date
hereof; and
(I) the disposal of receivables on arm's length terms.
All disposals (save where indicated) shall be made only
for cash consideration and on arm's length terms.
If any member of the Group shall be or, as a result of
the Target becoming a member of the Group whilst owning
Grid Shares, shall become the owner of any Grid Shares,
the Company and Bidco shall procure that those Grid
Shares are sold to a person or persons who are not
members of the Group for cash consideration and on
arm's length terms by not later than the later of 31st
January, 1996 and the date 30 days after the date on
which shares in The National Grid Holding plc are first
listed on The Stock Exchange or (if no such listing has
occurred) are first able to be freely disposed of by
holders thereof.
(d) Pari passu ranking: Each Obligor undertakes that its
obligations under this Agreement rank and will at all times
rank at least pari passu in right and priority of payment
and in point of security (save by reason of and to the
extent of the security afforded thereto by the Security
Documents) with all its other present and future unsecured
and unsubordinated obligations, other than obligations
applicable generally to companies incorporated in its
jurisdiction of incorporation which have priority by
operation of law (including, without prejudice to the
60
generality of the foregoing, in respect of employees'
remuneration, Taxes and like obligations).
21.4 Liabilities
(a) Borrowings:
(i) The Company will procure that the aggregate Borrowings
of the Target and its Subsidiaries taken together on a
consolidated basis (including the amount of any
Borrowings thereof permitted pursuant to Clause 21.4(b)
and (c) and giving effect to the proviso to the
definition of Borrowings in Clause 1.1) plus (to the
extent not otherwise included in Borrowings of the
Target and/or its Subsidiaries) the amount of any
actual or contingent liability of the Target and/or its
Subsidiaries (1) for Borrowings at that time of any
person in which the Target or any of its Subsidiaries
has an ownership interest, or (2) to provide funds by
loan, subscription for share capital or otherwise to
any person in which the Target or any of its
Subsidiaries has an ownership interest, will not exceed
the sum of the following:
(A) the outstanding principal amount from time to time
of any Tranche 3 Utilisations made by such
companies;
(B) the principal amount of all Borrowings of such
companies outstanding at the Unconditional Date
save to the extent refinanced by Tranche 3
Utilisations made by such companies and excluding
all Borrowings outstanding at the Unconditional
Date under the 400,000,000 pounds revolving credit
facility available to the Target under an
Agreement dated 26th July, 1995;
(C) the outstanding principal amount from time to time
of all Borrowings of such companies for which the
only creditor is the Company or Bidco;
(D) Project Finance Indebtedness of the Target and/or
its Subsidiaries outstanding from time to time;
and
(E) 50,000,000 pounds or such higher amount (if any) as
may be permitted by a Waiver Letter.
(ii) The Company will procure that the members of the Group
do not incur Borrowings of such amounts as result in
the Company failing to be in compliance with Clause
22.1.
(b) Third party guarantees: No Obligor will, and each Obligor
will procure that no other member of the Group will, incur
or permit to be outstanding, save as permitted by a Waiver
Letter, any Borrowing falling within the provisions of
paragraph (f) of the definition of that term in Clause 1.1,
other than any such Borrowing (A) arising under the Finance
Documents, or (B) arising out of the endorsement of
negotiable instruments for the purpose and in the ordinary
course of carrying on the relevant entity's trade (if and to
the extent that the same would fall within the definition of
Borrowings in Clause 1.1), or (C) arising out of guarantees
and indemnities by members of the Group in favour of a bank
to facilitate the operation of bank accounts of members of
the Group which are maintained with such bank on a net
balance basis, or (D) arising out of guarantees and
indemnities given by members of the Group (other than the
Company) in respect of Borrowings of other members of the
Group where the obligation guaranteed or indemnified is
permitted under the terms of this Agreement, or (E) any
61
guarantee, indemnity or similar assurance against financial
loss given under or in connection with any pooling and
settlement arrangements or agreements (including, but
without limitation, the Pooling and Settlement Agreement) of
the electricity generation, supply and distribution industry
or in connection with any transactions or arrangements
entered into in a form usual in such industry in connection
with the management of risk relating thereto (if and to the
extent that the same would fall within the definition of
Borrowings in Clause 1.1).
(c) Treasury Transactions: No Obligor will, and each Obligor
will ensure that none of its Subsidiaries will, save as
permitted by a Waiver Letter, enter into any interest rate
swap, cap, ceiling, collar or floor or any currency swap,
futures, foreign exchange or commodity contract or option
(whether over the counter or exchange traded) or any similar
treasury transaction, other than spot foreign exchange
contracts entered into in the ordinary course of business,
and transactions for the hedging of actual or projected
interest rate, currency and/or commodity and/or electricity
price exposures arising in the ordinary course of the
trading activities of such member of the Group and for
hedging against a drop in the price of Grid Shares.
21.5 Loans out: No Obligor will, and each Obligor will procure
that no member of the Group will, be the creditor in respect
of any Borrowings, save for:-
(a) any Borrowing approved pursuant to a Waiver Letter;
(b) any Borrowing under paragraph (b) of the definition of
"Borrowing" in Clause 1.1 where trade credit is
extended by any member of the Group on normal
commercial terms and in the ordinary course of its
business on substantially the same terms (or terms more
favourable to it) and in similar circumstances as for
trade credit extended prior to the date hereof by the
Target;
(c) loans made by one member of the Group to another member
of the Group the proceeds of which are used by the
latter member of the Group in the ordinary course of
its business carried on in compliance with the terms of
this Agreement;
(d) Borrowings not otherwise permitted pursuant to
paragraphs (a) - (c) above in an aggregate amount for
the Group as a whole at any time outstanding not
exceeding 5,000,000 pounds.
21.6 Dividends, Share Capital and Subordinated Debt
(a) Dividends
The Company will not, save as permitted by a Waiver Letter,
declare, make or pay any dividend (or interest on any unpaid
dividend), charge, fee or other distribution (whether in
cash or in kind) on or in respect of its share capital (or
any class of its share capital) or distribute any dividend
or share premiums reserves or pay interest or other charges
on Subordinated Debt (together "Dividends"), provided that
the Company may pay in cash Dividends if (and only if) each
of the following conditions are met:
(i) no material Default has occurred and is continuing
which has not been waived pursuant to a Waiver Letter
at the time or would occur or be continuing immediately
62
after the payment or declaration of the Dividend
(whether or not caused by such payment or declaration);
(ii) not more than 75% of the profit before tax of the Group
for any annual Accounting Period shall be distributed
by the Company by way of Dividends and/or repayment of
Subordinated Debt (aggregated together) (the "Annual
Distribution Entitlement"), provided that the Annual
Distribution Entitlement in respect of any annual
Accounting Period shall remain available (subject as
provided in this Clause 21.6(a)) for distribution until
(but not beyond) the date eighteen months after the end
of the annual Accounting Period in respect of which it
has arisen, and if not distributed by that date, shall
only be distributed with the consent of the Majority
Banks;
(iii) the ratio of Consolidated Net Total Borrowings to
the aggregate of Adjusted Capital and Reserves and
Consolidated Net Total Borrowings is, and will be
immediately after payment of the Dividends and/or
repayment of the Subordinated Debt, not more than
55:100.
(b) Certification of Payment Amounts
Where any payment of Dividends or repayment of Subordinated
Debt is proposed to be made by the Company the Company shall
prior to making such payment provide to the Facility Agent
not less than 10 Business Days before the proposed date for
payment a certificate signed by two Authorised Signatories
of the Company (one of whom shall be the Chief Financial
Officer) in a form reasonably satisfactory to the Facility
Agent showing (i) the date and amount of such proposed
payment and (ii) such calculations in reasonable detail as
are necessary to show that Clauses 21.6(a)(ii) and 22.1(a)
are and immediately after the making of such payment will be
complied with.
(c) Share Capital and Subordinated Debt
The Company will not, and (in the case of paragraph (ii)) no
Obligor will, and each Obligor will procure that no other
member of the Group will, save as permitted by a Waiver
Letter:
(i) redeem, repurchase, defease, retire, return or repay
any of its share capital or Subordinated Debt, or
resolve to do so, save, in the case of Subordinated
Debt, (A) out of the proceeds of a further issue of
share capital or Subordinated Debt permitted pursuant
to paragraph (ii) below, or (B) to the extent that such
redemption, repurchase, defeasance, retirement, return
or repayment would be permitted pursuant to Clause
21.6(a) and (b) were it to comprise instead the payment
of Dividends in the same amount; or
(ii) save (in the case of the Company) as contemplated by
the Subscription Agreement, issue any new share capital
or Subordinated Debt or grant any option to any person
to subscribe for any shares in its capital other than
(save in the case of the Company) to another member of
the Group, provided that the Company may issue (A) to
CSW and/or (provided that no Event of Default under
Clause 23.1(n) is then in existence or will result) any
other person share capital of a type substantially
similar to the shares to be issued by it to CSW
pursuant to the Subscription Agreement, which is
subscribed for in full in cash at the time of issue,
and/or (B) to CSW and/or any person who holds at least
5% of the issued share capital of the Company without
63
an Event of Default under Clause 23.1(n) existing or
resulting from such ownership and is or has become
party to the Intercreditor Agreement, Subordinated Debt
which is subscribed for in full in cash.
21.7 Environmental matters
Each Obligor will and will procure that each member of the
Group will:
(a) obtain all requisite Environmental Licences and comply
in all material respects with (i) the terms and
conditions of all Environmental Licences applicable to
it and (ii) all other applicable Environmental Law in
each case where failure to do so would have a Material
Adverse Effect;
(b) promptly upon receipt of the same, notify the Facility
Agent and the Security Agent of any claim, notice or
other communication served on it in respect of any
alleged breach of or corrective or remedial obligation
or liability under any Environmental Law which would,
if substantiated, have a Material Adverse Effect.
21.8 Insurance
Each Obligor will, and will procure that each member of the
Group will, insure and keep insured all its property and
assets (including those taken on lease) of an insurable
nature and which are customarily insured (either generally
or by companies carrying on a similar business) against loss
or damage by fire and other risks normally insured against
by persons carrying on the same class of business as that
carried on by it in a similar location and in a sum or sums
and with deductibles and other terms consistent with prudent
market practice for companies carrying on a similar business
in a similar location. Each Obligor will, and will procure
that each member of the Group will, with reasonable
promptness after becoming aware of the relevant requirement
effect and maintain all insurances required by any
applicable law or by the Licence.
21.9 General Undertakings
(a) Change of business: No Obligor will, and each Obligor will
procure that no other member of the Group will, save as
permitted by a Waiver Letter, make or threaten to make any
substantial change in the nature of its respective business
as compared to that conducted at the date hereof or carry on
any other business which, in either case, results in any
material change in the nature of the business carried on by
the Group as a whole compared to that conducted at the date
hereof.
(b) Mergers: Neither the Company nor the Target nor any other
Obligor will, and each Obligor will procure that no other
member of the Group will, save as permitted by a Waiver
Letter, enter into any merger or consolidation, provided
that members of the Group other than the Company, Bidco, the
Target and any Obligor may merge or consolidate with other
such members of the Group.
(c) Holding Company: Save as permitted by a Waiver Letter,
neither the Company nor Bidco shall carry on any business
(other than the holding of shares in and the provision of
administrative services to members of the Group) or acquire
any assets other than Cash, investments which are cash
equivalents as that term is defined for the purposes of
64
Financial Reporting Standard 1 "Cash Flow Statements" issued
by the Accounting Standards Board or shares which (i) in the
case of the Company, are shares in Bidco , or (ii) in the
case of Bidco are Shares, acquired in the Target by Bidco
pursuant to the Offer or are Grid Shares, or (iii) in the
case of the Company and/or Bidco are shares are in companies
which are already members of the Group, and in the case of
(i), (ii) and (iii) are or become on acquisition mortgaged,
pledged or otherwise charged to the Security Agent pursuant
to the Security Documents.
(d) Administration and winding-up orders etc.: No Obligor will,
and each Obligor will procure that no other member of the
Group will, save as permitted by a Waiver Letter, make or
join in making any application to any court for an
administration, winding-up, receivership or other similar
order to be made in relation to any member of the Group,
other than in respect of a solvent winding-up or dissolution
of a member of the Group which is not an Obligor where such
application or the granting of any such application would
not have a Material Adverse Effect.
(e) Arm's-length terms: No Obligor will, and each Obligor will
procure that no other member of the Group will, enter into
any material transaction with any person (including, without
limitation, CSW or any of its Affiliates or associated
companies) otherwise than on arms length terms, save as
permitted by a Waiver Letter, and save for (i) loans made by
one member of the Group to another member of the Group which
are permitted by Clause 21.5(c), (ii) disposals by one
member of the Group to another member of the Group permitted
by Clause 21.3(c), (iii) transactions entered into on terms
more favourable to a member of the Group than would have
been the case had the transaction been entered into on arms
length terms, and (iv) transactions (including the issue of
Subordinated Debt as and to the extent permitted hereunder)
expressly permitted by this Agreement.
(f) Amendments to documents: No Obligor will, and each Obligor
will procure that no other member of the Group, save as
permitted by a Waiver Letter, will or will agree to amend,
supplement, supersede or waive any term of the Transaction
Documents, if on or prior to the first Utilisation Date,
without the prior written consent of the Majority Banks, and
thereafter in any way which would be likely materially and
adversely to affect the interests of the Banks under the
Finance Documents.
(g) Constitutional Documents: No Obligor will, and each Obligor
will procure that no other member of the Group will, save as
permitted by a Waiver Letter or as required by law, amend or
seek or agree to amend or replace the memorandum or articles
of association or other constitutional documents or by-laws
of any member of the Group in any way which would be likely
materially and adversely to affect the interests of the
Banks under the Finance Documents, provided that if any such
undertaking would not be enforceable (having regard to the
rule in Xxxxxxx x. Northern Bank Development Corporation
Limited & Ors) against any Obligor it shall not be given by
that Obligor.
(h) Compliance with laws: Each Obligor will, and will procure
that each other member of the Group will, comply in all
material respects with all applicable laws, rules,
regulations and orders of any governmental authority,
whether domestic or foreign, having jurisdiction over it or
any of its assets, failure to comply with which would have a
Material Adverse Effect.
(i) Consents: Each Obligor will, and will procure that each
other member of the Group will, obtain, promptly renew from
time to time and maintain in full force and effect, and if
so requested promptly furnish certified copies to the
Facility Agent of all such material authorisations,
65
approvals, consents, licences and exemptions as may be
required under any applicable law or regulation or under the
Licence or any Licence Undertaking:
(i) to enable each Obligor to perform its respective
material obligations under the Finance Documents to
which it is a party or required for the validity or
enforceability of such Finance Documents or of any
security provided for thereby; and/or
(ii) to carry on its business as it is being conducted from
time to time where failure to obtain, renew or maintain
any such authorisation, approval, consent, licence or
exemption or non-compliance with the terms of the same
would have a Material Adverse Effect.
(j) Pension Schemes: The Company will if requested by the
Facility Agent deliver to the Facility Agent at such time as
those reports are prepared in order to comply with then
current statutory or auditing requirements actuarial reports
in relation to the pension schemes for the time being
operated by members of the Group, and will ensure that all
such pension schemes are fully funded based on reasonable
actuarial assumptions applicable in the United Kingdom.
(k) Syndication: The Company shall ensure that all members of
the Group will provide assistance to the Facility Agent and
the Arrangers in the preparation of the information
memorandum for syndication of the Facilities and comply with
all reasonable requests for information from potential
syndicate members made through the Facility Agent or the
Arrangers.
(l) Revocation or Modification of Licence: The Company and
Bidco will procure that the Target, once it has become a
Subsidiary of the Company, and any and each other Licence
holder shall comply in all respects with the terms of its
Licence and shall not consent, without the prior written
consent of the Majority Banks, to any revocation of its
Licence or to any material modification to the terms thereof
if such modification, in the reasonable opinion of the
Majority Banks, would have (whether immediately or in the
course of time prior to the Tranche 2/3 Repayment Date) a
Material Adverse Effect.
(m) Licence Undertakings: The Company and Bidco will consult
with the Original Banks with regard to the terms of any
Licence Undertaking which it or any Holding Company of it or
CSW or the Target may be required to give to the Director
General or the Secretary of State in connection with the
Offer and will not give and will procure that such Holding
Company, CSW and (once it has become a Subsidiary of Bidco)
the Target will not give any such Licence Undertaking
without the prior consent of the Majority Banks (such
consent not to be unreasonably withheld).
21.10 The Offer
(a) Each of the Company and Bidco undertakes that:
(i) without the prior agreement of the Majority Banks, (the
agreement of the Majority Banks being conclusively
evidenced by a written notice from the Facility Agent
to the Company) neither the Company (in the case of (G)
only) nor Bidco will:
(A) amend or vary any material term or condition of
the Offer;
66
(B) do or permit to be done (otherwise than on the
instructions of the Panel and otherwise than
permitting the Offer to become or declaring the
Offer unconditional without any breach of this
Clause 21.10 (other than paragraph (a)(ii) and/or
(iii) and otherwise than as permitted pursuant to
Clause 21.10(b) or (c)) anything which would cause
the Panel to regard any material term or condition
of the Offer as having been waived, withdrawn or
(in the case of the Judgment Conditions (as
defined below)) satisfied;
(C) subject to paragraph (b) below, waive, withdraw or
agree or decide not to enforce any material term
or condition of the Offer;
(D) subject to paragraph (c) below, declare or accept
or treat as satisfied any Judgment Condition;
(E) declare, decide or accept any percentage below 50
per cent. plus one Share for the purposes of any
of the conditions set out in paragraph A of
Appendix 1 to the Press Release;
(F) take or permit to be taken any step as a result of
which the offer price stated in the Offer is, or
may be required to be, increased beyond the level
agreed between Bidco and the Banks from time to
time;
(G) issue any press release or other publicity which
makes reference to the Facilities or to some or
all of the Finance Parties unless the publicity is
required by law or by the Code (in which case the
Company or Bidco shall notify the Facility Agent
and the Banks thereof as soon as practicable upon
becoming aware of the requirement).
(ii) in all material respects relevant in the context of the
Offer, it will comply with the Code (subject to any
waivers granted by the Panel), the Financial Services
Xxx 0000, the Companies Xxx 0000 and all other
applicable statutes, laws and regulations.
(iii) it will keep the Facility Agent informed as to the
status of and progress with respect to the Offer and in
particular will from time to time and promptly upon
request, give to the Facility Agent for the Banks
reasonable details as to (A) the current level of
acceptances of the Offer, and (B) such other matters
relevant to the Offer as the Facility Agent may
reasonably request. The Company or Bidco will also
promptly deliver to the Facility Agent a copy of every
certificate delivered by the receiving agents to Bidco
and/or its advisers pursuant to the Code.
(b) (i) If Bidco is not aware and has not been informed by
a Finance Party in writing of a circumstance or event
which is or could reasonably be construed to be covered
by a material term or condition to the Offer which, if
not waived, would entitle Bidco (with the Panel's
consent, if needed) to lapse the Offer, Bidco, by
waiving, withdrawing or agreeing or deciding not to
enforce that term or condition shall not breach Clause
21.10(a)(i)(C), provided that in any case involving the
following conditions (as set out in Appendix 1 to the
Press Release) Bidco has first taken the action
provided for below:
67
(A) in the case of conditions (D) and (E), Bidco has
made enquiry of the Director General as to the
subject matter thereof, has requested an urgent
response and has allowed a reasonable time for
that response to be given;
(B) in the case of conditions (F) and (G), Bidco has
sought and received appropriate advice from its
legal advisers to the effect that such condition
has been satisfied in all material respects in so
far as requirements under English law are
concerned;
(C) in the case of conditions (E), (F), (H), (I), (J),
(K), (L) and (M) where (but only where) the Offer
is at the relevant time recommended by the Board
of Directors of the Target, Bidco has made enquiry
of the Board of Directors of the Target as to
whether there were in existence any circumstances
or have occurred any events which would cause any
such condition not to be met, has requested an
urgent response and has allowed a reasonable time
for that response to be given;
(D) In the case of conditions (B) and (C),: no action
shall be required for the purpose of this
paragraph (b)(i).
(ii) If Bidco becomes aware (whether through notice from any
Finance Party or otherwise) of a circumstance or event
which is or could reasonably be construed to be covered
by a condition of the Offer which, if not waived, would
entitle Bidco (with the Panel's consent, if needed) to
lapse the Offer, Bidco shall notify the Facility Agent
and the following shall apply:
(A) if Bidco wishes to waive, withdraw or agree or
decide not to enforce the condition and the
Majority Banks agree, Bidco may do so;
(B) if the Majority Banks do not so agree and state
that in their opinion such circumstance or event
would materially and adversely affect the ability
of Bidco to comply with its material obligations
under the Finance Documents, Bidco will request
the Panel to agree that the Offer may lapse as a
result of non-satisfaction of that condition or of
the conditions as to acceptances (as set out in
paragraph A of Appendix 1 to the Press Release)
and that such lapsing will not give rise to a
breach of the Code. If the Panel does not so
agree, then Bidco may, without the Banks'
agreement, waive, withdraw or agree or decide not
to enforce such condition.
(c) (i) In relation to each of conditions (B) and (C) (as
set out Appendix 1 to the Press Release), Bidco shall
disclose to the Facility Agent any and all conditions
attaching to, respectively, the announcement by the UK
Office of Fair Trading (in the case of condition (B))
or the indication by the Director General (in the case
of condition (C).
(ii) In relation to condition (D) Bidco shall disclose to
the Facility Agent the terms of all undertakings and
assurances sought by the Director General as referred
to therein and proposed to be given.
(iii) In relation to conditions (H), (I), (J), (K), (L)
and (M), if Bidco becomes aware (whether through notice
from any Finance Party or otherwise) of a circumstance
or event which is or could reasonably be construed to
68
be covered by such condition (ignoring for this purpose
the last sentence of paragraph (d) below) and which
could reasonably be expected materially and adversely
to affect the ability of Bidco to comply with its
material obligations under the Finance Documents, Bidco
shall notify the Facility Agent.
(iv) In relation to each Judgment Condition, Bidco shall
give advance notice to the Facility Agent of its
intention to be satisfied with respect to that Judgment
Condition, and (where paragraphs (i), (ii) or (iii)
have application in relation to such Judgment
Condition) of the reasons for such intention to be
satisfied;
(v) If, in relation to a Judgment Condition, Bidco notifies
the Facility Agent of its intention to be satisfied
with respect to that Judgment Condition, and the
Majority Banks do not promptly notify Bidco that it
should not be so satisfied on grounds that the
circumstances (which shall be specified in such notice)
in relation to that Judgment Condition are such as in
their opinion materially and adversely to affect the
ability of Bidco to comply with its material
obligations under the Finance Documents, Bidco may
declare or accept or treat as satisfied such Judgment
Condition. If the Majority Banks do so notify Bidco as
aforesaid, the Majority Banks may then request Bidco to
(and Bidco in such circumstances will) request the
Panel to agree that the Offer may lapse as a result of
non-satisfaction of that Judgment Condition or of the
conditions as to acceptances (as set out in paragraph A
of Appendix 1 to the Press Release) and that such
lapsing will not give rise to a breach of the Code. If
the Panel does not so agree, then Bidco may, without
the Banks' agreement, be and declare itself to be
satisfied as to such Judgment Condition.
(d) As used in this Clause 21.10 "Judgment Condition" means a
material term or condition of the Offer which refers to
Bidco being satisfied, or making a determination, as to any
matter. For the purposes of this Clause 21.10, each of
conditions (H), (I), (J), (K), (L) and (M) as set out
Appendix 1 to the Press Release shall be deemed to include a
requirement that Bidco be satisfied as to the existence or
non-existence (as the case may be) of circumstances or
events which would cause such condition to be met or not to
be met (as the case may be).
22. FINANCIAL RATIOS
22.1 Financial Ratios
The Company will procure that, save as agreed pursuant to a
Waiver Letter:-
(a) Adjusted Capital and Reserves to Consolidated Net Total
Borrowings:
The ratio of Consolidated Net Total Borrowings to the
aggregate of Adjusted Capital and Reserves and
Consolidated Net Total Borrowings shall not be more
than 75:100 at any time on or before the Grid Disposal
Date or 65:100 at any time after the Grid Disposal
Date; and
(b) Consolidated EBITDA to Consolidated Total Interest
Payable:
Consolidated EBITDA for any period comprising an annual
Accounting Period of the Company or four consecutive
quarterly Accounting Periods of the Company (taken
69
together as one period) shall not be less than 1.65
times Consolidated Total Interest Payable for such
period in the case of any such period ending on or
before the commencement of the first quarterly
Accounting Period to commence after the Grid Disposal
Date or 2.25 times Consolidated Total Interest Payable
for such period in the case of any such period ending
on or after the expiry of the first quarterly
Accounting Period to commence after the Grid Disposal
Date.
In this Clause 22.1, "Grid Disposal Date" means
whichever is the earlier of (i) the Unconditional Date
(if on that date none of the Company, Bidco or the
Target own any Grid Shares) or (otherwise) the date on
which all Grid Shares owned by members of the Group are
sold, and (ii) (if the date in (i) above is not the
Unconditional Date) the later of 31st January, 1996 and
the date 30 days after the date on which shares in The
National Grid Holding plc are first listed on The Stock
Exchange or (if no such listing has occurred) are first
able to be freely disposed of by holders thereof.
22.2 Initial Consolidated EBITDA/Consolidated Total Interest
Payable Tests
The first test of the covenant set out in Clause 22.1(b)
shall be made in respect of a period ending on the expiry of
the quarterly Accounting Period commencing on, or (if none)
on the expiry of the first quarterly Accounting Period
commencing after, the Unconditional Date. The first three
tests of such covenant shall be made in respect of periods
which shall include such number of pro forma Accounting
Periods commencing before the Unconditional Date as shall be
required in order that each test is made for a period
comprising four quarterly Accounting Periods and on the
basis of pro forma Accounts for those pro forma Accounting
Periods delivered to the Facility Agent pursuant to Clause
21.2(a)(vi) and Accounts delivered to the Facility Agent
pursuant to Clause 21.2(a)(ii).
23. DEFAULT
23.1 Events of default
Each of the events set out below is an Event of Default
(whether or not caused by any reason outside the control of
any or all of the Obligors or of any other person):-
(a) Non-payment: any Obligor does not pay on the due date
any amount payable by it under any Finance Document at
the place, in the currency and in the funds expressed
to be payable, provided that this sub-clause shall not
apply to unpaid amounts which are paid in full within
five days of the due date; or
(b) Breach of Obligation:
(i) any Obligor fails to comply with any provision of
Clause 22 (Financial Undertakings); or
(ii) any Obligor fails to comply with any other
provision of this Agreement (irrespective of
whether or not such provision is valid and
enforceable against such Obligor) and/or any other
provision of any other Finance Document and, if
such failure is in the reasonable opinion of the
Majority Banks capable of remedy within such
period, such Obligor shall have failed to remedy
such failure within 21 days after the earlier of
70
the relevant Obligor becoming aware of such
default and receipt by the relevant Obligor of
written notice from the Facility Agent to such
Obligor requiring the failure to be remedied; or
(iii) any Obligor shall do any of the things
prohibited in Clauses 21.6(a) (Dividends) or
21.6(c) (Share Capital), or any of the things
prohibited in Clause 21.9(g) (Constitutional
Documents) shall be done to or by any Obligor,
whether or not (having regarding to the rule in
Xxxxxxx x. Northern Bank Development Corporation
Limited & Ors.) such undertaking is enforceable
against that Obligor, and the thing, if remediable
in the reasonable opinion of the Majority Banks,
shall not have been remedied within 21 days after
the earlier of the relevant Obligor becoming aware
thereof and receipt by the relevant Obligors of
written notice from the Facility Agent to such
Obligor requiring the thing to be remedied; or
(c) Misrepresentation/Breach of Warranty: any
representation, warranty or statement made or repeated
by or on behalf of any Obligor, in any Finance Document
or in any certificate or statement delivered by or on
behalf of any Obligor or other member of the Group
under or in connection with any Finance Document, is
incorrect or misleading in any respect which in the
reasonable opinion of the Majority Banks is material
when made or deemed to be made or repeated by reference
to the facts and circumstances then subsisting and, if
the circumstances causing such misrepresentation are in
the reasonable opinion of the Majority Banks capable of
remedy within such period, such Obligor shall have
failed to remedy such circumstances within 21 days
after the earlier of the relevant Obligor becoming
aware of such misrepresentation and receipt by the
relevant Obligor of written notice from the Facility
Agent to such Obligor requiring the circumstances
causing such misrepresentation to be remedied; or
(d) Invalidity: any of the Finance Documents shall cease to
be in full force and effect in any material respect or
shall cease to (or be alleged by any Obligor not to)
constitute the legal, valid and binding obligation of
any Obligor party to it or, in the case of any Security
Document, fail to (or be alleged by any Obligor not to)
provide effective security in favour of the Security
Agent and the Banks over the assets over which security
is intended to be given by that Security Document, in
each case in a manner and to an extent reasonably
considered by the Majority Banks to be materially
adverse to the interests of the Banks under the Finance
Documents or it shall be unlawful for any Obligor to
perform any of its material obligations under any of
the Finance Documents, provided that where the relevant
Finance Documents are re-executed in the same form in
all material respects and none of the circumstances
described in this paragraph apply in respect of those
Finance Documents as so re-executed and the interests
of the Banks under the Finance Documents are not
continuing to be materially and adversely affected as a
result of any of the foregoing circumstances having
occurred, the relevant Event of Default under this
paragraph shall be treated as having been cured; or
(e) Cross-acceleration:
(i) any Borrowings of any one or more members of the
Group (taken together if more than one)
aggregating 25,000,000 pounds (or the equivalent in
other currencies) or more at any one time
outstanding become due and payable or due for
redemption before their normal maturity date or
71
are placed on demand, in each such case by reason
of the occurrence of an event of default
(howsoever characterised) or any event having the
same effect, or any such Borrowings which are
payable on demand shall be demanded other than
where the Borrowings or the demand therefor is
being contested in good faith and the Facility
Agent is reasonably satisfied that the relevant
member of the Group has available sufficient
reserves to pay such Borrowings); or
(ii) any such Borrowings aggregating 25,000,000 pounds
(or the equivalent in other currencies) or more, or
any sum or sums payable in respect of any such
Borrowings, are not paid when due (or, in the case
of demand facilities, within 3 Business Days of
their due date) (whether falling due by demand, at
scheduled maturity or otherwise) or within any
applicable grace period provided for in the
original document evidencing or constituting those
Borrowings; or
(iii) (if funds aggregating 25,000,000 pounds (or the
equivalent thereof in other currencies) are
outstanding in respect thereof) any commitment for
or underwriting of any facility for Borrowings of
any member of the Group is cancelled or suspended
by the provider of that facility by reason of the
occurrence of an event of default (howsoever
characterised); or
(iv) any Encumbrances over assets of any one or more
members of the Group (taken together if more than
one) securing an aggregate of 25,000,000 pounds (or
its equivalent in other currencies) or more become
enforceable and steps are taken to enforce the
same;
provided that if the Borrowings concerned are Project
Finance Indebtedness (and in relation to paragraph (iv)
above any such Encumbrance extends only over the shares
in or assets of a Project Finance Subsidiary securing
only Project Finance Indebtedness), the foregoing
events or circumstances shall not constitute Events of
Default; or
(f) Liquidation: any order is made or resolution passed or
any legal proceedings are initiated or are consented to
by any Obligor or any petition shall be presented or
legal proceedings commenced by any person (and not,
where that person is unconnected with that member of
the Group save for being a creditor of such member,
discharged or stayed within twenty-one days in the case
of both legal proceedings and such petition) for the
suspension of payments generally or for any process
giving protection against creditors or for the
dissolution, termination of existence, liquidation,
winding up, bankruptcy or other like process of the
Company, Bidco or any Principal Subsidiary (other than
a solvent liquidation, dissolution or winding up of a
member of the Group (not being an Obligor)); or
(g) Moratorium: a moratorium in respect of all or any debts
of the Company, Bidco or the Company, Bidco or any
Principal Subsidiary or a composition or an arrangement
with creditors generally of the Company, Bidco or any
Principal Subsidiary or any other arrangement whereby
its affairs and/or assets are submitted to the control
of or are protected from its creditors is applied for,
ordered or declared; or
(h) Administrator: an application is made for the
appointment of an administrator (as such term is used
in the Insolvency Act 1986) or similar official in
relation to the Company, Bidco or any Principal
72
Subsidiary or an effective resolution is passed by the
directors or shareholders of the Company, Bidco or any
Principal Subsidiary for such an application to be made
or an administrator or administrative receiver is
appointed in respect of the Company, Bidco or any
Principal Subsidiary; or
(i) Receiver: a liquidator or provisional liquidator (save
as excepted in paragraph (f) above) or, a trustee,
receiver, administrative receiver, manager (being a
person acting on behalf of all or any creditors) or
similar officer is appointed in respect of the Company,
Bidco or any Principal Subsidiary or in respect of (or
takes possession of) all or any part of its assets with
a value in excess of 25,000,000 pounds (or the equivalent
in other currencies); or
(j) Insolvency: the Company, Bidco or any Principal
Subsidiary is declared or deemed pursuant to any
applicable legislation to be insolvent or is or is
deemed pursuant to any applicable legislation to be
unable, or admits in writing its inability, to pay its
debts as they fall due or stops or threatens to stop
payment of its debts generally or becomes insolvent
within the terms of any applicable law excluding
Section 123(1)(a) of the Xxxxxxxxxx Xxx, 0000; or
(k) Distress: any distress, execution, attachment,
registration or other process affects the Company,
Bidco or any Principal Subsidiary having an aggregate
value of 25,000,000 pounds save where (i) the relevant
member is, in good faith, contesting the distress, execution,
attachment, sequestration or other process by
appropriate proceedings diligently pursued and (ii) the
Majority Banks acting reasonably are satisfied that the
ability of any Obligor to comply with its obligations
under the Finance Documents will not be materially and
adversely affected whilst such distress, execution,
attachment, diligence or other process is being so
contested; or
(l) Analogous Proceedings: there occurs, in relation to the
Company, Bidco or any Principal Subsidiary in any
country or territory in which it is incorporated or
carries on business or to the jurisdiction of whose
courts it or any part of its assets is subject, any
event which, in the reasonable opinion of the Majority
Banks, corresponds in that country or territory with
any of the events mentioned in paragraphs (f) to (k)
(inclusive) above, or the Company, Bidco or any
Principal Subsidiary otherwise becomes subject, in any
of those countries or territories, to any law or
proceedings relating to insolvency, bankruptcy,
liquidation, reorganisation or dissolution having a
similar effect to the events mentioned in paragraphs
(f) to (k) (inclusive) above; or
(m) Cessation: the Company, Bidco or any Principal
Subsidiary ceases to carry on all or a substantial part
of its business (save in consequence of any
reorganisation, reconstruction or amalgamation
permitted under this Agreement or approved pursuant to
a Waiver Letter and save as may result from any
disposal of assets permitted by the terms of this
Agreement or any solvent liquidation, dissolution or
winding-up of any of the Group (not being an Obligor)
which would not have a Material Adverse Effect); or
(n) Control: without the prior written consent of the
Majority Banks, any single person or group of persons
acting in concert (as defined in the City Code on
Takeovers and Mergers) acquires control (as defined in
Section 416 of the Income and Corporation Taxes Act
1988) of the Company or Bidco or the Target (unless
such person or group of persons shall be CSW) or CSW
shall cease to own directly or indirectly for its own
73
account a majority of all classes of the share capital
of the Company or Bidco or Target (once it has become a
Subsidiary of the Company) shall cease to be
Subsidiaries of CSW; or
(o) Proceedings: there is current or pending at the
Unconditional Date or there shall occur thereafter any
litigation, arbitration, administrative, regulatory or
other proceedings or enquiry (including without
limitation, any such by the Office of Fair Trading, the
Monopolies and Mergers Commission, the Department of
Trade and Industry, or any equivalent body in any other
jurisdiction or the European Commission or any division
of any thereof or authority deriving power from any
thereof) concerning or arising in consequence of any of
the Transaction Documents and/or the implementation of
any matter or transaction provided for in the
Transaction Documents or otherwise concerning or
involving any member of the Group and the same has a
Material Adverse Effect; or
(p) Expropriation: the authority or ability of the
Company, Bidco or the Target to conduct its business is
wholly or substantially curtailed by any seizure,
expropriation, intervention, renationalisation or other
action by or on behalf of any governmental, regulatory
or other authority; or
(q) Revocation and Modification of Licence: without the
prior consent of the Majority Banks, any Licence (or
any replacement Licence as contemplated in paragraph
(i) below) is:
(i) revoked or surrendered other than in circumstances
which permit the Company or another member of the
Group to carry on the electricity distribution and
supply business of the Target substantially as is
envisaged at the date of this Agreement either
without a Licence (as a result of a change to the
Act) or with a new Licence whose terms are not
materially less favourable than those of the
Licence in force prior to such revocation or
surrender; or
(ii) modified in any manner which in the reasonable
opinion of the Majority Banks would have (whether
immediately or over time) a Material Adverse
Effect; or
(r) Compliance with Act: the Target fails to comply with a
final order (within the meaning of Section 25 of the
Electricity Act) or with a provisional order (within
the meaning of that section) which has been confirmed
under that section (and not since been revoked); or
(s) Pooling and Settlement Agreement: any notice requiring
the Target to cease to be a party to the Pooling and
Settlement Agreement is given to the Target under
Clauses 60.1.3 or 60.2.2 of the Pooling and Settlement
Agreement; or
(t) Intercreditor Agreement and Subordinated Creditors:
(i) any creditor for any Subordinated Debt fails to
comply with any of the material provisions of, or
its material obligations under, the Intercreditor
Agreement; or
74
(ii) any warranty made by any creditor for any
Subordinated Debt in the Intercreditor Agreement
is incorrect when made; or
(iii) the Intercreditor Agreement is not or ceases
to be binding on or enforceable against any
creditor for any Subordinated Debt by reason of
any act or omission by the Company or such
creditor;
and in each such case in the reasonable opinion of the
Majority Banks the interests of the Banks under the
Finance Documents or any of them shall be materially
prejudiced thereby.
23.2 Sanctions
Subject, where applicable, to Clause 23.3, upon the
occurrence of an Event of Default and at any time thereafter
while the same is continuing and has not been waived
pursuant to a Waiver Letter, the Facility Agent may, and
shall if so directed by the Majority Banks, by notice to the
Company:-
(a) declare that an Event of Default has occurred; and/or
(b) declare that the Total Commitments shall be cancelled
or reduced forthwith to the level specified by the
Facility Agent, whereupon the same shall be so
cancelled and all fees payable in relation to the
amount of the Total Commitments so cancelled or reduced
shall become immediately due and payable, provided that
until all the Shares have been acquired pursuant to the
Offer and/or the procedure set out in Section 428 et
seq. Companies Act, 1985 or the Offer Termination Date
has occurred this power shall not be exercised so as to
result in (i) the maximum aggregate amount from time to
time remaining to be paid (on the assumption that all
outstanding Shares will be acquired) to accepting
shareholders pursuant to the Offer and/or pursuant to
procedures implemented or to be implemented under
Section 428 et seq. Companies Xxx 0000, less (ii) the
amount (if any) by which the aggregate amount
subscribed to the Company by CSW in cash for share
capital and Subordinated Debt from time to time exceeds
the amount which has actually been paid to accepting
shareholders pursuant to the Offer from time to time,
exceeding (iii) the amount of the undrawn Commitments
the proceeds of drawings of which are capable in
accordance with Clause 3.1 of being applied in payment
to accepting shareholders in the Target pursuant to the
Offer; and/or
(c) declare that some or all of the Utilisations to some or
all of the Borrowers (as specified in such notice),
together with all interest, commissions and other
charges accrued with respect to those Utilisations and
all other amounts payable by some or all of the
Borrowers (as specified in such notice) or any of them
under the Finance Documents from time to time, shall
thenceforth be repayable on demand being made by the
Facility Agent (and in the event of any such demand
those Utilisations, such interest, commissions and
other charges and such other amounts shall be
immediately due and payable); and/or
(d) declare some or all of the Utilisations by some or all
of the Borrowers (as specified in such notice)
immediately due and repayable, whereupon they shall
become immediately due for payment or repayment
together with all interest, commissions and other
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charges accrued on those with respect to those
Utilisations and all other amounts payable by those
Borrowers under the Finance Documents; and/or
(e) declare that some or all of the Borrowers shall
forthwith pay or procure the payment to the Facility
Agent of a sufficient sum to cover the Outstanding
Liability Amounts under outstanding Bills constituting
Utilisations by those Borrowers (as specified in such
notice), whereupon the same shall become immediately
due and payable and, once paid, shall be held by the
Facility Agent in an interest bearing account for
application in reimbursing the Banks, as the case may
be, forthwith for all payments made or to be made under
such outstanding Bills, provided that any sum remaining
after settling such payments shall be applied first in
settlement of any other amounts then due and payable to
any Facility Agent and/or the Banks under the Finance
Documents and, subject to that, any balances shall be
promptly repaid to the relevant Borrowers or other
person entitled to the balance.
23.3 Clean up Period
If during the period of three months from the Unconditional
Date any event or circumstance which (but for this
Clause 23.3) would constitute a Default (the "Potential
Event of Default") shall exist which consists of, or is a
direct consequence of any event or circumstance which
occurred in relation to the Target or any of its
Subsidiaries (or its or any of their business, assets or
liabilities) on or before the Unconditional Date, then the
following shall apply:
(a) the Company or Bidco or the Target shall notify the
Facility Agent of that fact by fax promptly after
becoming aware thereof, giving a reasonable description
of:
(i) the Potential Event of Default and its causes; and
(ii) the remedial action in relation to that Potential
Event of Default which the Company and/or Bidco
and/or the Target propose to take;
(b) that Potential Event of Default shall not constitute a
Default, and the Facility Agent shall not with respect
to that Potential Event of Default (but, for the
avoidance of doubt, not so as to restrict the Facility
Agent's rights to take such action with respect to any
other Event of Default which is not a Potential Event
of Default) be entitled to take any of the actions set
out in Clause 23.2, until (assuming that the Potential
Event of Default is then continuing) the earlier of:
(i) the date three months after the Unconditional
Date; or
(ii) the Facility Agent confirming in writing to the
Company and Bidco that in the reasonable opinion
of the Facility Agent it is likely that a Material
Adverse Effect would result from such Potential
Event of Default or from the effects thereof or
from the continued inaction by the Facility Agent
as regards the exercise of rights under this
Agreement; or
(iii) a Material Adverse Effect actually occurring.
Provided that (A) the foregoing shall not apply with respect
to any Potential Event of Default under any of the following
Clauses 23.1(a), (b)(i) (insofar as it relates to Clause
22.1(b)), (b)(iii), (d), (f), (g), (h), (i), (n), (p), (q),
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(r) or (s), in each case irrespective of whether or not that
Potential Event of Default occurred in consequence of any
event or circumstance which occurred before the
Unconditional Date, and (B) any Potential Event of Default
shall nevertheless constitute a Default for the purposes of
Clause 4.3, save (in the case only of a Potential Event of
Default consisting of a Default arising under Clause 23.1
(b)(ii), (c) or (e)) where it is demonstrated to the
reasonable satisfaction of the Majority Banks that such
Potential Event of Default is likely to be cured within
three months after the Unconditional Date without any
Material Adverse Effect occurring, and (C) where the
Potential Event of Default consists of a breach of Clause
22.1(a), the date referred to in paragraph (i) above shall
be taken as the earlier of the date when the Company has
issued further share capital or incurred further
Subordinated Debt as referred to in Clause 21.6(d)(i) and
the expiry of the period referred to in the first lines of
Clause 21.6(d).
24. INDEMNITIES
24.1 Currency Indemnity
(a) If any amount payable by any Obligor under or in connection
with any Finance Document is received by any Finance Party
in a currency (the "Payment Currency") other than that
agreed to be payable under that Finance Document (the
"Agreed Currency"), whether as a result of any judgement or
order or the enforcement of the same, the liquidation of
such Obligor or otherwise and the amount produced by
converting the Payment Currency so received into the Agreed
Currency at market rates prevailing at or about the time of
receipt of the Payment Currency is less than the amount of
the Agreed Currency due under that Finance Document, then
the Obligors shall, as an independent and additional
obligation, indemnify each Finance Party for the deficiency
and any loss sustained as a result.
(b) The above indemnities shall constitute separate and
independent obligations of each of the Obligors from their
other obligations under the Finance Documents and shall
apply irrespective of any indulgence granted by any Finance
Party. The Obligors shall pay the reasonable costs of
making any conversion from the Payment Currency to the
Agreed Currency.
(c) Each Obligor waives any right it may have in any
jurisdiction to pay any amount under this Agreement in a
currency other than that in which it is expressed to be
payable under that Finance Document.
24.2 Other indemnities
The Obligors shall indemnify each Finance Party against any
losses (excluding loss of the applicable Margin save in the
case of paragraphs (a) and (b) below), charges or expenses
which such Finance Party may sustain or incur as a
consequence of:-
(a) the occurrence of any Default; or
(b) the operation of Clause 23.2; or
(c) any repayment or prepayment of an Advance or payment of
an overdue amount being made otherwise than on its
Interest Date; or
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(d) (other than by reason of default by any Finance Party)
any Utilisation not being made (or not being made in
full) to any Borrower after a Request has been given
pursuant to Clause 5 or Clause 6 (as the case may be),
including but not limited to any losses, charges or expenses
on account of funds acquired, contracted for or utilised to
fund any amount payable under this Agreement, any amount
repaid or prepaid or any Utilisation (as the case may be).
A certificate of such Finance Party as to the amount of any
such loss or expense shall be prima facie evidence in the
absence of manifest error.
24.3 Indemnity Relating to Facilities
(a) The Company agrees to indemnify each Finance Party and each
of their respective directors, officers and employees
against any and all claims, damages, liabilities, costs and
expenses (including legal fees) which may be incurred by or
asserted against such Finance Party or their respective
directors, officers and employees in connection with or
arising out of any such proceedings, actions or enquiry by
any regulatory authority of a type referred to in
Clause 23.1(o) (ignoring the provision as to materiality
contained therein) or any litigation or other proceedings
connected with the Offer. It is agreed that:
(i) Each Finance Party shall notify the Company in
reasonable detail of any potential claim by it or its
directors, officers or employees on the Company under
this Clause 24.3 promptly upon its becoming aware of
that potential claim; and
(ii) If the Company wishes any Finance Party to enter into
any negotiations with a view to settlement of any
dispute with any third party likely to give rise to any
claims, damages, liability, costs and expenses for
which a claim may be made under this Agreement, it
shall notify that Finance Party accordingly, which
Finance Party will then enter into such negotiations in
good faith on a without prejudice basis but shall not
be bound so to settle; and
(iii) Any payments required to be made by reason of this
indemnity shall be in addition to any other amounts
provided for in this Agreement or agreed to be paid in
respect of the Facilities.
(b) Each Finance Party shall give promptly to the Company such
details and copies of legal opinions and process served
concerning (or concerning the circumstances giving rise to)
any claims, damages, liabilities, costs and expenses which
may form the basis of any claim by it on the Company
hereunder, as the Company may reasonably request.
(c) At the request of the Company, from time to time, each
Finance Party will discuss with the Company and will give
careful consideration in good faith to the views of the
Company concerning the appointment of professional advisers
in connection with any such claims, damages, liabilities,
costs and expenses (and in connection with the circumstances
giving rise thereto and any proceedings current, pending or
threatened relating thereto) and the conduct of any
proceedings, and will use reasonable endeavours to procure
that (once appointed) all professional advisers acting for
it in relation thereto shall do likewise and that where
possible and where such Finance Party does not reasonably
consider that it is against such Finance Party's best
interest, one firm of professional advisers only is
appointed to represent all of the Finance Parties.
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(d) Notwithstanding the foregoing provisions of this
Clause 24.3, no Finance Party shall be required to disclose
to the Company or any other Obligor any matter with regard
to which it is under a duty of non-disclosure. All
information which may be disclosed by any Finance Party
pursuant to this Clause 24.3 shall be disclosed on the same
conditions as to confidentiality, as are set out in
Clause 32.
25. AGENTS, ARRANGERS AND BANKS
25.1 Appointment
Each Bank hereby appoints the Facility Agent and the
Security Agent to act as its agent hereunder and with
respect to the Finance Documents and irrevocably authorises
the Facility Agent on such Bank's behalf to:
(a) enter into any Accession Agreement or Security
Agreement (whereupon and by which act such Bank shall
become bound thereby); and
(b) perform such duties and exercise such rights and powers
under the Finance Documents as are specifically
delegated to such Agent by the terms thereof, together
with such rights and powers as are reasonably
incidental thereto.
Each Agent shall have only those duties and powers which are
expressly specified in the Finance Documents. Each Agent's
duties under the Finance Documents each are intended to be
of a mechanical and administrative nature.
25.2 Majority Banks' Directions
In the exercise of any right or power granted and as to any
matter not expressly provided for by the Finance Documents,
each Agent shall act in accordance with the instructions of
the Majority Banks or as this Agreement may require and
shall be fully protected in so doing. Any such instructions
shall be binding on all the Banks. Subject to Clauses 25.7
and 25.16, in the absence of any such instructions and/or
any relevant requirement contained in any Finance Document,
each Agent may act or refrain from acting with respect to
such right or power and as to any such matter as it shall
see fit.
25.3 Relationship
(a) The relationship between each Bank and each Agent is that of
principal and agent. Nothing herein (other than in relation
to the Security Agent and the Security Documents as to which
the Security Agent shall be a trustee for the Banks) shall
constitute the Facility Agent a trustee or (save, with
regard to any Bank, as necessarily results from its agency
relationship with that Bank) fiduciary for any Bank, any
Obligor or any other person.
(b) No Agent shall be liable to any Obligor for any breach by
any Bank of this Agreement or be liable to any Bank for any
breach by any Obligor of any Finance Document.
79
25.4 Delegation
Without prejudice to its obligations hereunder, each Agent
may act under the Finance Documents through its personnel
and through agents selected by it with reasonable care (who
shall be entitled to the same protections as those given to
the Agents under this Clause 25).
25.5 Documentation
Neither any Agent or any of the Arrangers nor any of its
officers, employees or agents shall be responsible to any
Bank or to each other for:-
(a) the execution, genuineness, validity, enforceability or
sufficiency of any Finance Document or any other
document in connection therewith; or
(b) the collectibility of amounts payable thereunder; or
(c) the accuracy of any statements (whether written or
oral) made in or in connection with any Finance
Document or other document in connection therewith.
25.6 Default
No Agent shall be required to ascertain or inquire as to the
performance or observance by any Obligor of the terms of any
Finance Document or any other document in connection
therewith. No Agent shall be deemed to have knowledge of
the occurrence of any Default unless that Agent has received
notice from a party hereto describing such Default and
stating that such notice is a "Notice of Default". If any
Agent receives such a notice of default or officers of any
Agent engaged in the performance of that Agent's functions
under the Finance Documents otherwise acquire actual
knowledge that a Default has occurred, that Agent shall give
notice thereof promptly to the Banks. Each Agent shall take
or refrain from taking such action with respect to such
Default as shall be directed by the Majority Banks, provided
that nothing herein contained shall oblige any Agent to
institute any legal action or proceedings on behalf of any
Bank. Until any Agent shall have received such directions,
it may (but shall not be obliged to) take or refrain from
taking such action with respect to such Default as it shall
see fit.
25.7 Exoneration
Neither Agent nor any of its officers, employees or agents
shall be liable to any Bank for any action taken or omitted
under or in connection with any Finance Document unless
caused by its or their negligence or wilful misconduct.
25.8 Reliance
Each Agent may rely on any communication or document
reasonably believed by it to be genuine and correct and may
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.
Each Agent may engage, pay for and rely on legal or other
professional advisers selected by it and shall be protected
in so relying.
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25.9 Credit approval
Each of the Banks severally represents and warrants to each
Agent and each of the Arrangers that it has made its own
independent investigation and assessment of the financial
condition and affairs of each Obligor and their related
entities and other parties considered by it to be relevant
in connection with its participation in this Agreement and
has not relied exclusively on any information, including the
Information Memorandum provided to such Bank by any Agent or
any Arranger in connection herewith. Each Bank represents,
warrants and undertakes to each Agent and each Arranger that
it shall continue to make its own independent appraisal of
the creditworthiness of the Obligors and other parties
considered by it to be relevant in connection with the
Finance Documents and their related entities while any
amount is or may be outstanding under the Finance Documents.
25.10 Information
(a) The Facility Agent shall promptly furnish each Bank with a
copy of any documents received by it under Clause 21.2. If
so requested by any Bank, the Facility Agent shall furnish
to such Bank (at the expense of the Company) a copy of any
of the documents listed in Schedule G delivered on or prior
to Closing.
(b) The Facility Agent shall, without any liability on its part
in the event of any failure to do so except in the case of
its negligence or wilful default, send to the Banks (at the
expense of the Company) any document (or a summary of the
material details of such document) received by it from any
Obligor pursuant to this Agreement which contains any
information which the Facility Agent considers to be of
direct and material interest and significance to the Banks
and their interests under this Agreement and which can
lawfully be distributed by the Facility Agent without
incurring any liability to any person whatsoever.
(c) Save as provided in paragraph (a) above neither Agent nor
any Arranger shall have any duty either initially or on a
continuing basis to provide any Bank with any credit or
other information with respect to the financial condition or
affairs of any Obligor or any of their related entities
whether coming into its possession or that of any related
entities of the Facility Agent or any Arranger before the
entry into of this Agreement or at any time thereafter.
(d) Unless specifically requested to do so by a Bank, neither
Agent shall have any duty to request any certificates or
other documents from any Obligor under any of the Finance
Documents.
(e) No Agent need disclose any information relating to any
Obligor or any of their related entities or any other person
if such disclosure would or might in the reasonable opinion
of the Facility Agent constitute a breach of any law or
regulation or be otherwise actionable at the suit of any
person.
25.11 The Facility Agent and the Arrangers individually
(a) Each Agent and each Arranger shall have the same rights and
powers hereunder as any other Bank and may exercise the same
as though it were not the Facility Agent or an Arranger.
(b) Each Agent and each Arranger may accept deposits from, lend
money to and generally engage in any kind of banking, trust,
advisory or other business whatsoever with any Obligor and
their related entities and accept and retain any fees
payable by any Obligors or any related entities for its own
81
account in connection herewith and/or therewith without
liability to account therefor to any Bank or any Arranger.
25.12 Indemnity
Each Bank agrees to indemnify each Agent on demand (to the
extent not reimbursed by any Obligor and without prejudice
to the liability of any Obligor under any Finance Document)
for any and all liabilities, losses, damages, penalties,
actions, judgements, costs, expenses or disbursements of any
kind whatsoever which may be imposed on, incurred by or
asserted against such Agent in any way relating to or
arising out of its acting as an Agent under any of the
Finance Documents or performing its duties thereunder or any
action taken or omitted by any Agent thereunder (including,
without limitation, the charges and expenses referred to in
Clause 26.5 and all stamp Taxes on or in connection with any
of the Finance Documents but excluding payment of its agency
fee pursuant to Clause 26.3 and the normal administrative
costs and expenses incidental to the performance of its
agency duties hereunder save to the extent increased in
consequence of a Default). Such indemnification by each
Bank shall be pro rata to its Commitments. Notwithstanding
the foregoing, no Bank shall be liable for any portion of
the foregoing resulting from any Agent's negligence or
wilful misconduct.
25.13 Legal restrictions
Each Agent may refrain from doing anything which would or
might in its reasonable opinion (a) be contrary to the law
of any applicable jurisdiction or any applicable official
directive or regulation or (b) render it liable to any
person, and may do anything which in its reasonable opinion
(acting on legal advice) is necessary to comply with any
such law or directive.
25.14 Resignation
Each Agent may (after consultation with the Company) resign
by giving notice thereof to the Banks and the Company and
may be removed by the Majority Banks giving notice to that
effect to such Agent and the Company. In that event the
Majority Banks, with the consent of the Company where the
relevant Agent has so resigned (such consent not to be
unreasonably withheld or delayed and the Company shall be
deemed to have consented if it has not given notice refusing
consent within 14 days of any request for consent) and in
any event after consultation with the Company to the extent
practicable, may appoint a successor for the relevant Agent
which shall be a reputable and experienced bank,
incorporated in or having a branch in England and acting
through such branch. If the Majority Banks have not, within
30 days after such notice of resignation or removal, so
appointed a successor Agent which shall have accepted such
appointment, the retiring Agent, after consultation with the
Company, shall have the right to appoint a successor Agent
which shall be a reputable and experienced Bank incorporated
or having a branch in England and acting through such
branch. The resignation or removal of the retiring Agent
and the appointment of any successor Agent or Security Agent
shall both become effective upon the successor Facility
Agent or Security Agent notifying all the parties hereto in
writing that it accepts such appointment, whereupon the
successor Facility Agent or Security Agent shall succeed to
the position of the retiring Facility Agent or Security
Agent and the terms "Facility Agent" and "Security Agent" in
all of the Finance Documents shall include such successor
Agent where appropriate. This Clause 25 shall continue to
benefit a retiring Agent in respect of any action taken or
omitted by it hereunder while it was an Agent.
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25.15 Assignments
Each Agent may treat each Bank named as a party hereto as
continuing to be such a party, as entitled to payments
hereunder and as acting hereunder through its Facility
Office until it has received notice from such Bank to the
contrary.
25.16 Amendments
(a) If authorised by the Majority Banks, the Facility Agent or
(in the case of the Security Documents) the Security Agent
may (except where any other authority is required for the
same by the express provisions of this Agreement) grant
waivers or consents or (with the agreement of the Company)
vary the terms of the Finance Documents. Any such waiver,
consent or variation so authorised and effected by the
Facility Agent or, as the case may be, the Security Agent
shall be binding on all the Banks and the Facility Agent or,
as the case may be, the Security Agent shall be under no
liability whatsoever in respect of any such waiver, consent
or variation, provided always that, except with the prior
written consent of all the Banks and the Company, nothing in
this Clause 25.16(a) shall authorise:-
(i) the extension of any Availability Period; or
(ii) any variation of the definition of "Majority Banks" in
Clause 1.1; or
(iii) any extension of the date for, or alteration in
the amount or currency of, or waiver of any payment of
principal, interest, Margin, fee, commission or any
other amount payable under any of the Finance
Documents; or
(iv) any change to any Bank's Commitment; or
(v) any variation of Clauses 12.2, 13, 30.2, 32 or this
Clause 25.16; or
(vi) any variation of any provision wherein (before such
variation) it is provided that certain things may not
be done without or may be done with the consent or
approval of all the Banks.
(b) If authorised by the Majority Banks, the Security Agent may
grant any waiver or consent in relation to, or variation of
the material provisions of, any Security Document (but not,
for the avoidance of doubt, so as to release any security).
Subject as otherwise provided for in this Agreement, any
release of the security provided by any Security Document
over the Shares requires the consent of all the Banks,.
25.17 Security Agent as Trustee
(a) The Security Agent in its capacity as Trustee or otherwise
shall not be liable for any failure, omission, or defect in
perfecting the security constituted by any Security Document
or any security created thereby including, without
limitation, any failure to register the same in accordance
with the provisions of any of the documents of title of the
relevant Obligor to any of the property thereby charged.
83
(b) The Security Agent in its capacity as Trustee or otherwise
may accept without enquiry such title as any Obligor may
have to the property over which security is intended to be
created by any Security Document.
(c) Save where the Security Agent holds a legal mortgage over or
over an interest in, real property or shares, the Security
Agent in its capacity as Trustee or otherwise shall not be
under any obligation to hold any title deeds, Security
Documents or any other documents in connection with the
property charged by any Security Document or any other such
security in its own possession or to take any steps to
protect or preserve the same. The Security Agent may permit
the relevant Obligor to retain all such title deeds and
other documents in its possession.
(d) Save as otherwise provided in the Security Documents, all
moneys which under the trusts herein or therein contained
are received by the Security Agent in its capacity as
Trustee or otherwise may be invested in the name of or under
the control of the Security Agent in any investment for the
time being authorised by English law for the investment by
trustees of trust money or in any other investments which
may be selected by the Security Agent with the consent of
the Majority Banks. Additionally, the same may be placed on
deposit in the name of or under the control of the Security
Agent at such bank or institution (including any Agent) and
upon such terms as the Security Agent may think fit. Any
and all such monies and all interest thereon shall be paid
over to the Facility Agent forthwith upon demand by the
Facility Agent.
(e) Each Bank hereby confirms its approval of the Finance
Documents and any security created or to be created pursuant
thereto and hereby authorises, empowers and directs the
Security Agent (by itself or by such person(s) as it may
nominate) to execute and enforce the same as trustee or as
otherwise provided (and whether or not expressly in the
Banks' names) on its behalf.
26. FEES, EXPENSES AND STAMP TAXES
26.1 Commitment Fee
(a) The Company will pay (or will procure that there is paid) to
the Facility Agent for distribution among the Banks pro rata
to the aggregate of their respective Tranche 1 Commitments,
Tranche 2 Commitments and Tranche 3 Commitments, as the case
may be, a commitment fee computed at the rate of (i) zero
point one zero per cent. (0.10%) per annum on the daily
undrawn balance of the Tranche 1 Commitments, the Tranche 2
Commitments and the Tranche 3 Commitments during the period
from and including the date hereof until the earlier of the
Unconditional Date and the expiry of the applicable
Availability Period, (ii) zero point three seven five per
cent. (0.375%) per annum on the daily undrawn balance of the
Tranche 1 Commitments, the Tranche 2 Commitments and the
Tranche 3 Commitments during the period from and including
the Unconditional Date until the earlier of the first
Utilisation Date and the expiry of the applicable
Availability Period, and (iii) 50% of the applicable Margin
(being that chargeable from time to time in relation to
calculations involving the relevant Commitments) from and
including the first Utilisation Date.
(b) Accrued commitment fee shall be payable quarterly in arrears
and also on the date on which the Tranche 1 Commitments or
the Tranche 2 Commitments or the Tranche 3 Commitments, as
the case may be, shall terminate. Commitment fee shall
accrue from day to day and be calculated on the basis of a
year of 365 days and for the actual number of days elapsed.
The Company shall supply to the Facility Agent promptly on
84
request such information as is necessary to calculate the
amount of commitment fee payable from time to time.
26.2 Arrangement and Underwriting Fees
On the dates stated in such letter, the Company shall pay to
the Facility Agent for the account of the Arrangers an
arrangement fee and an underwriting fee in the amount stated
in a letter dated on or before the date hereof from the
Facility Agent to the Company, counter-signed by or on
behalf of the Company.
26.3 Agency Fees
The Company shall pay to each of the Facility Agent and the
Security Agent for its own account for use by it as it sees
fit agency fees in the amounts, and on the dates as
specified in letters dated on or before the date hereof from
the Facility Agent to the Company, counter-signed by the
Company.
26.4 Initial and Documentation expenses
(a) On or before the date of the first Utilisation if demanded
before such date and otherwise promptly on demand by the
Facility Agent, the Company shall reimburse the Facility
Agent for the reasonable out-of-pocket charges and expenses
(including, but not limited to, the fees and expenses of
legal advisers) incurred by it or the Arrangers in
connection with the negotiation, preparation, printing and
execution of the Finance Documents (including any thereof
which may be executed at any time after the date of this
Agreement), together in all cases with all value added and
similar Taxes applicable.
(b) The Company shall reimburse the Facility Agent within 30
days of demand for the reasonable out of pocket charges and
expenses (including, but not limited to, the fees and
expenses of legal advisers) incurred by it or the Arrangers
in connection with the syndication by the Original Banks of
the Finance Documents and the Commitments and Utilisations
thereunder and the execution of any further Finance
Documents from time to time, together with all value added
tax and similar Taxes applicable to the same.
(c) Where this Agreement provides that any document or other
information is to be copied or provided by the Facility
Agent to all or any of the Banks or the Security Agent
(including, without limitation, as contemplated in Clause
25.10(a) or (b)) the Company will promptly on demand
reimburse the Facility Agent for the reasonable out-of-
pocket charges and expenses incurred by it in so copying or
providing such document or other information, together with
all value added and similar Taxes applicable to the same.
26.5 Expenses of Administration, Enforcement, Waiver and
Amendment
The Company (or the relevant Borrower where in the
reasonable opinion of the Facility Agent such amounts are
referable to a particular Borrower) shall reimburse each of
the Finance Parties promptly on demand for the out-of-pocket
charges and expenses (including the fees and expenses of
legal advisers and notaries and the fees and expenses of any
accountants or other professional advisers (a) incurred by
any of them in connection with the enforcement of, or the
preservation of any rights under, any of the Finance
Documents, (b) reasonably incurred by any of them in
connection with any waiver or consent which may at any time
be sought by any Obligor under or in relation to any of the
Finance Documents, and (c) reasonably incurred by any of
them in connection with any variation of or supplement to
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any of the Finance Documents (other than any Substitution
Certificate or a variation or supplement requested by a
Finance Party), together, in each case, with all value added
and similar Taxes applicable to the same. While any Default
is continuing and has not been waived the Company (or the
relevant Borrower, as the case may be) shall promptly on
demand pay each of the Facility Agent and the Security Agent
for the reasonable cost of the management time properly
charged by the Facility Agent or, as the case may be, the
Security Agent in connection with any additional
administration of the Finance Documents arising in
consequence of such Default.
26.6 Stamp Taxes
The Company shall pay or indemnify the Finance Parties
against any and all stamp, registration and similar Taxes
(excluding such Taxes as are imposed by a jurisdiction other
than the United Kingdom) which may be or become payable in
connection with the entry into, performance or enforcement
against any of the Obligors of any of the Finance Documents.
27. WAIVERS, REMEDIES CUMULATIVE
27.1 Waivers
No failure to exercise and no delay in exercising any right,
power or privilege under any Finance Document by any of the
Finance Parties shall operate as a waiver of the same, nor
shall any single or partial exercise of any such right,
power or privilege preclude any other or further exercise of
the same, or the exercise of any other right, power or
privilege. No waiver by any of the Finance Parties shall be
effective unless it is in writing.
27.2 Remedies Cumulative
The rights and remedies of each of the Finance Parties in
this Agreement may be exercised as often as necessary and
are cumulative and not exclusive of any rights or remedies
provided by law.
28. NOTICES
28.1 Address
Except as otherwise stated in this Agreement, all notices or
other communications hereunder to any party hereto shall be
made by letter or by facsimile transmission and shall be
deemed to be duly given or made when delivered (in the case
of letter or facsimile transmission) to such party addressed
to it at its address or telex number or facsimile number
specified in the relevant Part of Schedule A or Schedule B,
or at such other address or telex number or facsimile number
as such party may after the date of this Agreement specify
for such purpose to the others by notice.
28.2 Non-working days
A notice or other communication received on a non-working
day or after 5.00 p.m. on a working day in the place of
receipt shall be deemed to be served on the next following
working day in such place.
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29. ASSIGNMENTS, TRANSFERS AND SUBSTITUTIONS
29.1 Successors
This Agreement shall be binding upon and ensure to the
benefit of the Obligors, the Banks, the Facility Agent, the
Security Agent and their respective successors and permitted
assigns.
29.2 Assignments and Transfers by Obligors
Save as expressly provided in this Agreement, no Obligor may
assign or transfer all or any part of its rights or
obligations under this Agreement without the prior written
consent of all the Banks.
29.3 Assignments and Transfers by Banks
(a) Subject to Clause 29.10 any Bank may at any time assign or
otherwise transfer all or any part of its rights or
obligations under this Agreement and the other Finance
Documents to another bank with the consent of the Company
(such consent not to be unreasonably withheld and not to be
required for assignments or transfers from a Bank to another
Bank or to an Affiliate of any Bank), provided that such
bank is then a Recognised Bank, that if it is a bank having
its principal place of business in the U.S.A. it is a bank
as defined in section 3(a)(6) of the Securities Xxxxxxxx Xxx
0000 of the U.S.A. and that in the case of a transfer of
obligations the transferee shall have confirmed to the
Facility Agent and the Company, prior to the transfer taking
effect, that it undertakes to be bound by the terms of the
Finance Documents as a Bank under those documents (such
confirmation to be in form and substance satisfactory to the
Facility Agent and the Company). On any such transfer of
obligations being made the original Bank shall be relieved
of its obligations to the extent of the transfer of such
obligations .
(b) A proportion of the assignor's rights and obligations under
and arising out of the other Finance Documents equal to the
proportion of the assignor's rights under this Agreement
being transferred or assigned, shall automatically be
assigned or transferred, as appropriate, to the assignee or
transferee at the same time as the rights under this
Agreement.
29.4 Substitution Certificates
(a) Subject to Clause 29.10 if any Bank (the "Existing Bank")
wishes to transfer all or any part of its rights, benefits
and/or obligations under the Finance Documents to another
bank (the "New Bank") then, as an alternative to
Clause 29.3, provided that the New Bank is then a Recognised
Bank and that if it is a bank having its principal place of
business in the U.S.A. it is a bank as defined in section
3(a)(6) of the Securities Xxxxxxxx Xxx 0000 of the U.S.A.,
the Existing Bank may, with the consent of the Company (such
consent not to be unreasonably withheld and not to be
required for assignments or transfers from a Bank to another
Bank or to an Affiliate of any Bank) effect a substitution
in respect thereof involving the New Bank in respect of all
of its rights, benefits and/or obligations by the delivery
to the Facility Agent and acceptance by it of a duly
completed certificate executed by the Existing Bank and the
New Bank in substantially the form of Schedule D (a
"Substitution Certificate").
(b) Upon delivery to the Facility Agent of any Substitution
Certificate and acceptance of the same by the Facility Agent
(which delivery and acceptance shall be evidenced
exclusively and conclusively by the Agent's countersignature
thereon pursuant to paragraph (d) below):-
87
(i) the respective rights of the Existing Bank and the
Obligors (or the relevant Obligors) against each other
under the Finance Documents with respect to all or the
relevant part of the Existing Bank's relevant
Commitment and/or relevant Advances (all as specified
in the schedule to such Substitution Certificate),
shall be terminated and each shall be released from all
further obligations to the other under the Finance
Documents with respect to the same, (all such rights
and obligations to be so terminated or released being
referred to as "Discharged Rights and Obligations");
(ii) the relevant Obligors and the New Bank and (through the
Facility Agent) the other parties to the Finance
Documents shall each acquire rights against each other
and assume obligations towards each other which differ
from the Discharged Rights and Obligations only
(subject as provided in Clause 29.7) insofar as the
Obligors, the New Bank and such other parties have
assumed and/or acquired the same in place of the
Obligors, the Existing Bank and such other parties
respectively;
(iii) the Facility Agent, the Security Agent, the New
Bank and the other Banks as well as the other parties
to the Finance Documents shall acquire the same rights
and assume the same obligations between themselves as
they would have acquired and assumed had such New Bank
been an original party to this Agreement as a Bank with
the Discharged Rights and Obligations acquired or
assumed by it in consequence of such Substitution
Certificate;
(iv) the New Bank shall become by the execution by the
Facility Agent of such Substitution Certificate bound
by the terms of the Intercreditor Agreement as if it
were an original party thereto as a Senior Creditor and
shall acquire the same rights and assume the same
obligations towards the other parties to the
Intercreditor Agreement as would have been acquired and
assumed had the New Bank been an original party to the
Intercreditor Agreement as a Senior Creditor; and
(v) a proportion of the Existing Bank's rights and
obligations under all of the Finance Documents, equal
to the proportion of the Existing Bank's rights under
this Agreement being assumed by the New Bank, shall
automatically and simultaneously be assumed by the New
Bank.
(c) Discharged Rights and Obligations shall not include, and
there shall be no termination or release pursuant to this
Clause 29.4 of, any rights or obligations arising pursuant
to Clauses 13 or 15.1 in respect of the period or in respect
of payments made hereunder during the period prior to the
effective date of the relevant Substitution Certificate (as
stated in that certificate).
(d) Each Obligor, the Banks and the Security Agent hereby
irrevocably appoint the Facility Agent to receive and
countersign each Substitution Certificate as agent on its
behalf and, to the extent relevant, the provisions of
Clause 25 shall apply mutatis mutandis with respect to such
appointment. The Facility Agent shall be entitled (but not
obliged) to decline to accept and/or countersign any
proposed Substitution Certificate entered into in breach of
Clause 29.9.
(e) The New Bank party to any Substitution Certificate shall pay
to the Facility Agent an administration fee of 500 pounds on
or before the effective date for that Substitution Certificate
(as specified therein).
88
(f) Without prejudice to any provision of Clause 25, each New
Bank shall, by its execution of a Substitution Certificate,
accept that neither the Existing Bank party to that
certificate nor the Facility Agent, the other Banks, the
Arrangers or the Security Agent is in any way responsible
for or makes any representation or warranty as to (i) the
accuracy and/or completeness of any information supplied to
such New Bank in connection with the Finance Documents,
(ii) the creditworthiness, condition, affairs, status or
nature of the Obligors or the observance by any of them of
any of their obligations under any Finance Document,
(iii) the legality, validity, effectiveness, adequacy or
enforceability of any Finance Document or (iv) the tax
status of any payments to be made to or for the account of
such New Bank by any Obligors or the Facility Agent or the
Security Agent under any Finance Document and save, in the
case of the Facility Agent or the Security Agent, as
otherwise expressly provided herein, none of such parties
shall be or be deemed to be the agent or trustee of such New
Bank in connection with this Agreement.
(g) Each New Bank shall, by its execution of a Substitution
Certificate, be taken to confirm that it is a financial
institution whose ordinary business is or includes
participation in syndicated facilities of this type and that
it has made its own independent investigation and assessment
of the financial condition and affairs of each Obligor and
their related entities and other parties considered by it to
be relevant in connection with its participation in this
Agreement and has not relied exclusively on any information
provided to it by the Existing Bank or the Facility Agent or
the Security Agent or the Arrangers in connection with any
Finance Document. No other party shall be required to
investigate the truth or otherwise of such confirmation and
all parties to this Agreement shall be entitled fully to
rely on that confirmation for the purposes of this
Agreement.
(h) The Facility Agent shall be entitled to rely on any
Substitution Certificate delivered to it pursuant to the
provisions of this Agreement which is complete and regular
on its face as regards its contents and appears to be signed
on behalf of the Existing Bank and the New Bank named as
party to this Agreement, and the Facility Agent shall have
no liability or responsibility to any party as a consequence
of placing reliance on and acting in accordance with and
counter-signing that Substitution Certificate.
(i) The Facility Agent shall notify the Company promptly of the
receipt and execution on its behalf by the Facility Agent of
any Substitution Certificate and shall deliver a copy of it
to the Company.
29.5 Reference Banks
The Facility Agent may (subject to the Company giving its
consent thereto, such consent not to be unreasonably
withheld) nominate additional Banks or Affiliates thereof to
become Reference Banks and such Banks or Affiliates shall
become Reference Banks upon their indicating to the Facility
Agent that they are prepared to act as such. The Facility
Agent will give the Company written notice of such Banks or
Affiliates having become Reference Banks as soon as
practical thereafter. If a Reference Bank (or the Bank of
which a Reference Bank is an Affiliate, in the case of any
Reference Bank which is not itself a Bank) transfers the
whole of its rights and obligations under this Agreement as
a Bank or ceases to be one of the Banks, the Facility Agent,
subject to agreement by the Company (such agreement not to
be unreasonably withheld or delayed) will appoint another
Bank to replace such Bank or Affiliate as a Reference Bank.
89
29.6 Change of Facility Office
Each Bank shall participate in this Agreement through its
Facility Office(s), but any Bank may change its Facility
Office with respect to any Utilisation from time to time, on
giving not less than four Business Days' prior notice to the
Facility Agent, to any other location in the United Kingdom.
29.7 Increased Costs and Illegality
(a) Subject as provided in paragraph (b) below, if any
assignment, transfer or substitution of or with respect to
all or any part of the rights or obligations of a Bank under
this Agreement pursuant to Clause 29.3 or 29.4 or any change
in Facility Office pursuant to Clause 29.6 is made which
results (or would but for this Clause result) at the time
thereof in amounts becoming payable under Clauses 13 or
15.1, then the assignee, transferee, New Bank or Bank acting
through its new Facility Office shall be entitled to receive
such amounts only to the extent that the assignor,
transferor, Existing Bank or Bank acting through its
original Facility Office would have been so entitled had
there been no such assignment, transfer, substitution or
change in Facility Office. No such assignment, transfer,
substitution or change in Facility Office shall be made if
the assignee, transferee or substitute or such Bank (in the
case of a change in Facility Office) would be entitled
immediately afterwards to give notice under Clause 16.
(b) The provisions of the first sentence of paragraph (a) above
shall not apply in relation to any assignment, transfer or
substitution of or with respect to the rights or obligations
of the Original Banks, provided that the same is effected by
the Original Banks within six months from the date of this
Agreement.
However, the Original Banks will use reasonable endeavours
(to the extent not materially prejudicial to their ability
successfully to syndicate the Facilities within six months
of the Unconditional Date) to avoid making any assignment,
transfer or substitution to or in favour of any assignee,
transferee or New Bank having an entitlement at the time of
such assignment, transfer or novation to receive amounts
payable under Clauses 15 or 16.1 in amounts greater than
would have been payable by the Obligors hereunder at that
time in the absence of such assignment, transfer or
substitution.
29.8 Sub-participations
Any Bank shall be entitled freely to enter into any sub-
participation or other arrangement with any third party
relating to the Finance Documents which does not transfer to
that third party any obligation and/or any legal or
equitable interest in any of the rights arising under this
Agreement.
29.9 Timing
Each Bank undertakes to the Facility Agent that it will not
effect any assignment or transfer pursuant to Clause 29.3
and will not enter into any Substitution Certificate
pursuant to Clause 29.4 on or within five Business Days
before the due date for any payment to be made under any of
the Finance Documents where it would have the effect of
altering the amount to be paid by the Facility Agent to such
Bank consequent on the receipt by the Facility Agent of such
payment under the Finance Documents.
90
29.10 Restriction
Notwithstanding anything to the contrary contained in this
Agreement, unless otherwise agreed by the Majority Banks in
any particular case, each Bank may only effect an assignment
or transfer of, or substitution with respect to, outstanding
Utilisations and/or Commitments where the assignment,
transfer or substitution relates to all Utilisations in
which it participates and/or all its Commitments pro rata as
between such Utilisations and/or such Commitments.
30. SET-OFF AND REDISTRIBUTION
30.1 Set-off
Each Bank may (but shall not be obliged to) set off against
any obligation of any Obligor due and payable by it to or
for the account of such Bank under this Agreement and not
paid on the due date any moneys held by such Bank for the
account of such Obligor at any office of such Bank anywhere
and in any currency, whether or not matured. Such Bank may
effect such currency exchanges as are appropriate to
implement the set-off and any usual charges and all
applicable Taxes in relation to such currency exchanges
shall be paid by such Obligor. Any Bank which has set off
shall give prompt notice of that fact to the relevant
Obligor.
30.2 Redistribution
(a) If at any time the proportion which any Bank (the "receiving
Bank") has received or recovered (whether by set-off or
otherwise) on account of any sum due from any Borrower or
any Guarantor under this Agreement is greater (the amount of
the excess being herein referred to as the "excess amount")
than the proportion received or recovered by the Bank
receiving or recovering the smallest proportion (which shall
include a nil receipt) in relation to the sum then due to
the latter Bank from the relevant Borrower or the Guarantors
under this Agreement, then the receiving Bank shall promptly
notify the Facility Agent thereof and:-
(i) the receiving Bank shall promptly and in any event
within ten days of receipt or recovery of the excess
amount pay to the Facility Agent an amount equal to the
excess amount;
(ii) the excess amount shall be treated as having been paid
to or recovered by the receiving Bank for the account
of the Facility Agent for payment to the Banks as
provided in paragraph (iii) below, and the obligations
of the relevant Borrower and the Guarantors to the
receiving Bank shall only be reduced or discharged by
the receipt or recovery by the receiving Bank of such
excess amount to the extent of the receiving Bank's
entitlement to payment by the Facility Agent pursuant
to paragraph (iii) below; and
(iii) the parties to this Agreement shall treat such
payment as if it were a payment by the relevant
Borrower or the Guarantors to the Facility Agent on
account of a sum owed to the Banks and shall pay the
same to the Banks (including the receiving Bank) pro
rata to their respective entitlements in such sum;
provided that where a receiving Bank is subsequently
required to repay to any Obligor any amount received or
recovered by it and dealt with under paragraphs (i), (ii)
and (iii) above, each Bank shall promptly repay to the
Facility Agent for the receiving Bank the portion of such
amount distributed to it, together with interest on it at a
91
rate sufficient to reimburse the receiving Bank for any
interest which it has been required to pay to such Obligor
in respect of such portion of such amount.
(b) Where a receiving Bank has recovered any amount as a
consequence of the satisfaction or enforcement of a
judgement obtained in any legal action or proceedings to
which it is a party, this Clause 30.2 shall not apply so as
to benefit any other Bank which (being entitled so to do)
did not join with the receiving Bank in such action or
proceedings, unless the receiving Bank did not give prior
notice of its involvement in such action or proceedings to
the Facility Agent for disclosure to the other Banks.
(c) Each Bank shall promptly give notice to the Facility Agent
of:-
(i) the institution by such Bank of any legal action or
proceedings under this Agreement or in connection with
this Agreement prior to such institution; and
(ii) the receipt or recovery by such Bank of any amount
received or recovered by it otherwise than through the
Facility Agent.
Upon receipt of any such notice, the Facility Agent will as
soon as practicable thereafter notify all the other Banks.
30.3 Loss Sharing
Without prejudice to the foregoing provisions of this Clause
30, if it transpires for any reason that after enforcement
in full of the Finance Documents any of the liabilities of
any of the Obligors under the Finance Documents remain
undischarged and for any reason any resulting losses are not
being borne by the Banks pro rata to the amount which their
respective aggregate Commitments bore to the aggregate of
all the Commitments on the date on which an Enforcement
Event occurred, the Banks shall make such payments inter se
as shall be required to ensure that after taking into
account such payments such losses are borne by the Banks pro
rata. For this purpose, "Enforcement Event" means the
Facility Agent first exercising any of its rights under
Clause 23.2(b), (d) or (e) or, having exercised its rights
under Clause 23.2(c), first making demand with respect to
some or all of the Advances. Any assignment, transfer or
substitution by a Bank pursuant to Clause 29 (whether
occurring before or after an Enforcement Event) shall also
be effective to assign, transfer or effect a substitution
pursuant to that Clause with respect to the rights of such
Bank under this Clause 30.3.
31. GOVERNING LAW AND JURISDICTION
31.1 Governing Law
This Agreement shall be governed by and construed in
accordance with English law.
31.2 Courts of England
(a) For the benefit of each of the Finance Parties, each Obligor
hereby irrevocably agrees that the High Courts of Justice in
London, and all appellate courts therefrom have jurisdiction
to settle any disputes which may arise out of or in
connection with any of the Finance Documents and that any
suit, action or proceedings (together "Proceedings") in
connection with any Finance Document may be brought in the
High Courts of Justice in London and all appellate courts
92
therefrom and accordingly submits to the jurisdiction of the
High Courts of Justice in London and all appellate courts
therefrom.
(b) Each Obligor hereby irrevocably and unconditionally agrees
that nothing in any of the Finance Documents shall affect
the right to serve process in any manner permitted by law.
31.3 No limitation
Nothing in this Clause 31 shall limit the right of any of
the Finance Parties to take Proceedings against any Obligor
in any other court of competent jurisdiction, nor shall the
taking of Proceedings in one or more jurisdiction preclude
the taking of Proceedings in any other jurisdiction, whether
concurrently or not.
32. CONFIDENTIALITY
Each Finance Party hereby severally undertakes to each
Obligor that it will keep confidential and that it will not
make use of for any purposes (otherwise than for the
purposes of the Finance Documents and otherwise than in the
context of an addition to its general experience, knowledge
or expertise), any of the Transaction Documents or other
documents relating to this Agreement and all of the
information distributed on behalf of the Obligors or any of
them during syndication or contained in, received under or
obtained in the course of discussions relating to the
Information Memorandum and/or the Transaction Documents,
other than any such document or information which has become
generally available to banks through no breach by it of this
Clause, provided that each Finance Party shall be entitled
to make disclosure of the same:-
(a) to its auditors, accountants, legal counsel and tax
advisers and to any other professional advisers
appointed to act in connection with the administration
of the Finance Documents or the enforcement of, or
realisation of any security provided under, any of the
Finance Documents;
(b) (whether or not the relevant assignment, transfer,
substitution, sub-participation or other arrangement is
made) to any proposed assignee, transferee or
substitute of, or proposed party to any proposed sub-
participation (or party to any actual sub-
participation) or other arrangement with, any Bank
permitted pursuant to this Agreement, provided that
before any such disclosure such assignee, transferee,
substitute or other party expressly undertakes to the
Company and the Facility Agent in writing to be bound
by this Clause 32 irrespective of whether such
assignment, transfer, substitution or other arrangement
shall proceed;
(c) to any other third party where the relevant Obligor has
previously agreed in writing that disclosure may be
made to that third party;
(d) to any banking or other regulatory or examining
authorities (whether governmental or otherwise) where
such disclosure is requested by them;
(e) pursuant to subpoena or other legal process, or in
connection with any action, suit or proceeding relating
to any of the Finance Documents;
(f) pursuant to any law or regulation having the force of
law; and
93
(g) to CSW and to any member of the Group.
The provisions of this Clause 32 shall supersede any
undertakings with respect to confidentiality previously
given by any Finance Party in favour of any Obligor.
33. MISCELLANEOUS
33.1 Severability
(a) If any provision of any Finance Document is prohibited or
unenforceable in any jurisdiction, such prohibition or
unenforceability shall not invalidate the remaining
provisions of such Finance Document or affect the validity
or enforceability of such provision in any other
jurisdiction.
(b) If any of the undertakings given in Clause 21.6(a)
(Dividends), 21.6(c) (Share Capital and Subordinated Debt)
or 21.9(g) (Constitutional Documents) are not enforceable
against any Obligor the obligation on each other Obligor to
procure compliance with such undertaking shall remain
enforceable.
33.2 Certifications
Where any person gives any certificates on behalf of any of
the parties to the Finance Documents pursuant to any
provision hereof and such certificate proves to be
incorrect, the individual shall incur no personal liability
in consequence of such certificate being so incorrect save
where such individual acted fraudulently, recklessly or
negligently in giving such certificate (in which case any
liability of such individual shall be determined in
accordance with applicable law).
33.3 Accounts as Evidence
Accounts maintained by the Facility Agent or each Bank in
connection herewith shall constitute prima facie evidence of
sums owing to such Bank under this Agreement.
33.4 Press Announcements
The Company and the Facility Agent shall agree the form of
all press announcements issued in respect of the Finance
Documents.
33.5 Counterparts
This Agreement may be executed in any number of counterparts
and all of such counterparts taken together shall be deemed
to constitute one and the same instrument.
IN WITNESS WHEREOF the parties to this Agreement have caused this
Agreement to be duly executed on the date first written above.
94
SCHEDULE A
PART I
BORROWERS
CSW INVESTMENTS
State of Incorporation: England and Wales
Registered Office: 00 Xxxxx Xxxxxx
Xxxxxx XX0X 0XX
Registered No: 3123865
Address for Notices: x/x Xxxxxxx xxx Xxxxx Xxxxxxx Corporation
XX Xxx 000000
Xxxxxx
Xxxxx 00000-0000
XXX
Attention: Treasurer
Fax: 000 000 0000000
CSW (UK) PLC
State of Incorporation England and Wales
Registered Office: 00 Xxxxx Xxxxxx
Xxxxxx XX0X 0XX
Registered No: 3123442
Address for Notices: x/x Xxxxxxx xxx Xxxxx Xxxxxxx Corporation
XX Xxx 000000
Xxxxxx
Xxxxx 00000-0000
XXX
Attention: Treasurer
Fax: 000 000 0000000
95
PART II
GUARANTORS
CSW INVESTMENTS
State of Incorporation: England and Wales
Registered Office: 00 Xxxxx Xxxxxx
Xxxxxx XX0X 0XX
Registered No: 3123865
Address for Notices: x/x Xxxxxxx xxx Xxxxx Xxxxxxx Corporation
XX Xxx 000000
Xxxxxx
Xxxxx 00000-0000
XXX
Attention: Treasurer
Fax: 000 000 000 0000
CSW (UK) PLC
State of Incorporation: England and Wales
Registered Office: 00 Xxxxx Xxxxxx
Xxxxxx XX0X 0XX
Registered No: 3123442
Address for Notices: x/x Xxxxxxx xxx Xxxxx Xxxxxxx Corporation
XX Xxx 000000
Xxxxxx
Xxxxx 00000-0000
XXX
Attention: Treasurer
Fax: 000 000 000 0000
96
PART III
Facility Agent and Security Agent
Credit Suisse,
0 Xxxxx Xxxxxx
Xxxxxx X00 0XX
Xxxxxxx
Address for notices: as above
Attention: Geoff Ireland/Xxxx Chrisford
Tel: 0000-000-0000
Fax: 0000-000-0000
97
SCHEDULE B
Bank, Facility Office Tranche 1 Tranche 2 Tranche 3
and Notice Details Commitment Commitment Commitment
pounds pounds pounds
CITIBANK, N.A. 83,333,333.33 283,333,333.33 50,000,000
X.X. Xxx 000
000 Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Address for notices: as above
Attention: Loans Administration
Tel: 0000-000-0000
Fax: 0000-000-0000
CREDIT SUISSE 83,333,333.34 283,333,333.34 50,000,000
0 Xxxxx Xxxxxx
Xxxxxx X00 0XX
Xxxxxxx
Address for notices: as above
Attention: Client Services Unit
Tel: 0000-000-0000
Fax: 0000-000-0000
UNION BANK OF SWITZERLAND 83,333,333.33 283,333,333.33 50,000,000
X.X. Xxx 000
100 Xxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Address for notices: as above
Attention: Credit Administration
Tel: 0000 000 0000/4770
Fax: 0000 000 0000/1903
250,000,000 850,000,000 150,000,000
pounds pounds pounds
98
SCHEDULE C
FORMS OF REQUEST
PART I (ADVANCE)
To: Credit Suisse
0 Xxxxx Xxxxxx
Xxxxxx X00 0XX
Attention: [ ]
From: [Company or Borrower] Date: [ ]
REQUEST (ADVANCE)
Facility Agreement dated 5th November, 1995
Dear Sirs,
[On behalf of] [As] the Borrower named below, we hereby give you
notice pursuant to Clause 5.1 of the above Facility Agreement
that we require an Advance to be made to the Borrower named below
under the Facility Agreement, as follows
(a) Borrower: [ ]
(b) Utilisation Date: [ ]
(c) Requested Amount: [ ]
(d) Interest Period: [ ]
(e) Tranche Designation: [ ]
Payment instructions with respect to the proceeds of the Advance
to be made in relation to this Request are as follows, subject
always to Clause 12.2 of the Facility Agreement:
[ ].
+ [We confirm that acceptances of the Offer in respect of an
aggregate of at least [ ] Shares have been received
and that Bidco or its advisers are due to pay a sum of at least
pounds [ ] to accepting shareholders in the Target within
the next five Business Days. We further confirm that the
proceeds of the Advance hereby requested will be applied in
accordance with the relevant part of Clause 3.1.
OR
+ Include only in Request for Tranche 2 Advances save where the
proceeds of those Advances are to be used for an alternative
purpose permitted by Clause 3.1, in which case the purpose
should be stated in the Request.
99
Purpose:
Terms used in this Request and defined in the Facility Agreement
have the same meaning in this Request as in the Facility
Agreement.
We confirm that all of the conditions precedent to the
obligations of the Banks with respect to the making of the
proposed Advance provided for in Clause 4 of the Facility
Agreement are satisfied or have been waived pursuant to a Waiver
Letter.
Yours faithfully
[Authorised Signatory]
[for and on behalf of
[ ]
100
PART II (BILLS)
To: Credit Suisse
0 Xxxxx Xxxxxx
Xxxxxx X00 0XX
From: [Company or Borrower] Date: [ ]
REQUEST (XXXX)
Facility Agreement dated 5th November, 1995
Dear Sirs,
[On behalf of] [As] the Borrower named below, we hereby give you
notice pursuant to Clause 6.1 of the above Facility Agreement of
the following proposed utilisation of the xxxx facility under the
Tranche 3 Facility:
(a) Borrower: [ ]
(b) Utilisation Date: [ ]
(c) Requested Amount: [ ]
(d) Purpose: [ ]
(e) Interest Period: [7 to 183 days' duration]
Payment instructions with respect to the proceeds of the
Utilisation to be made in relation to this Request are as
follows, subject always to Clause 12.2 of the Facility Agreement:
[ ].
Terms used in this Request and defined in the Facility Agreement
have the same meaning in this Request as in the Facility
Agreement.
We confirm that all of the conditions precedent to the
obligations of the Banks with respect to the making of the
proposed Utilisation provided for in Clause 4 of the Facility
Agreement are satisfied or have been waived pursuant to a Waiver
Letter no Default has occurred and is continuing or would result
from the proposed Utilisation.
Yours faithfully
[Authorised Signatory]
for and on behalf of
101
SCHEDULE D
SUBSTITUTION CERTIFICATE
To: CREDIT SUISSE
(the "Facility Agent")
for itself and on behalf of
the other parties to the Facility
Agreement and Intercreditor Agreement
referred to below.
This Certificate ("Substitution Certificate") relates to a
Facility Agreement (together with and as supplemented and amended
by all Accession Agreements, Substitution Certificates and other
agreements from time to time entered into in relation to it, the
"Facility Agreement") dated 5th November, 1995 made between CSW
Investments as the Company, CSW (UK) plc as Bidco, the Arrangers
and the Banks (all as defined in the Facility Agreement), and
Credit Suisse as Facility Agent and Security Agent for the Banks
in respect of term loan facilities of up to 1,100,000,000 pounds
and a revolving credit facility of up to 150,000,000 pounds, and
to the Intercreditor Agreement referred to in the Facility Agreement.
Terms defined in the Facility Agreement shall, unless otherwise
defined herein, have the same meanings herein as in the Facility
Agreement.
1. [Existing Bank] (the "Existing Bank"):-
(a) confirms that the details appearing in the Schedule
hereto under the headings "Existing Bank's Commitments
(Portion Substituted)" and "Existing Bank's
Participations in Utilisations (Portion Substituted)"
are accurate; and
(b) requests [ ] (the "New Bank")
to accept and procure the substitution pursuant to
Clause 29.4 of the Facility Agreement of the Existing
Bank by the New Bank in respect of the portion of its
relevant Commitment(s) specified under the heading
"Existing Bank's Commitments (Portion Substituted)" in
the Schedule hereto and/or in respect of the
Utilisations referred to under the heading "Existing
Banks' Participations in Utilisations (Portion
Substituted)" by counter-signing the copy of this
Substitution Certificate executed by the Existing Bank
and delivering the same to the Facility Agent.
2. The New Bank hereby requests the Obligors, the Arranger, the
Banks, the Facility Agent and the Security Agent and the
other parties to the Intercreditor Agreement to accept this
duly executed Substitution Certificate as being delivered
pursuant to and for the purposes of Clause 29.4 of the
Facility Agreement and Clause 18 of the Intercreditor
Agreement so as to take effect in accordance with its terms
under such Clauses on [insert date of substitution].
3. The New Bank hereby (a) confirms receipt of a copy of the
Finance Documents as at the date hereof and all such other
documents and information as it has required in connection
herewith, (b) accepts and confirms the application of the
provisions of Clause 29.4 of the Facility Agreement and
Clause 18 of the Intercreditor Agreement as they apply in
connection herewith and the transactions and matters to
occur in consequence hereof, and (c) confirms the
correctness of the details specified with respect to it in
the schedule hereto.
102
4. The New Bank hereby undertakes to counter-indemnify the
Existing Bank for the New Bank's pro rata share of all
amounts payable by the Existing Bank under the Bills in
respect of which any liability is intended to be transferred
hereunder, which Bills are identified in the Schedule.
5. The New Bank confirms that:
(a) it has received a copy of the Finance Documents
together with such other documents and information as
it has required in connection with this transaction;
(b) it has not relied and will not hereafter rely on the
Existing Bank to check or enquire on its behalf into
the legality, validity, effectiveness, adequacy,
accuracy or completeness of any such documents or
information;
(c) it has made its own independent investigation and
assessment of the financial affairs of each Obligor and
their related entities and the other parties considered
by it to be relevant in connection with this
transaction and agrees that it has not relied and will
not rely on the Existing Bank, the Arrangers, the
Facility Agent, the Security Agent or the Banks to
assess or keep under review on its behalf the financial
condition, creditworthiness, condition, affairs, status
or nature of any member of the Group or any other party
to the Finance Documents (save as otherwise expressly
provided therein);
(d) it has power and authority to become a party to the
Finance Documents and has taken all necessary action to
authorise execution of this Substitution Certificate
and has obtained all necessary approvals and consents
to the assumption of its obligations under the Facility
Agreement and the Intercreditor Agreement; and
(e) it is a Recognised Bank.
6. The New Bank hereby undertakes with the Existing Bank and
each of the other parties to the Facility Agreement and the
Intercreditor Agreement that it will perform in accordance
with its terms all those obligations which by the terms of
the Facility Agreement and the Intercreditor Agreement will
be assumed by it thereunder after delivery of the executed
copies of this Substitution Certificate to the Facility
Agent and countersignature thereof by the Facility Agent,
and the New Bank hereby undertakes to be bound by the
provisions of the Facility Agreement and the Intercreditor
Agreement as if the New Bank were an original party thereto.
7. The Existing Bank hereby gives notice that nothing herein or
in any Finance Document (or any other document relating
thereto) shall oblige the Existing Bank (i) to accept a re-
transfer from or novation by the New Bank of the whole or
any part of its rights, benefits and/or obligations under
the Finance Documents or (ii) to support any losses directly
or indirectly sustained or incurred by the New Bank for any
reason whatsoever including, without limitation, the non-
performance by any Obligor or any other party to the Finance
Documents (or any document relating thereto) of their
obligations under any such document. The New Bank hereby
acknowledges the absence of any such obligation as is
referred to in paragraphs (i) and (ii) above.
8. This Substitution Certificate shall be governed by and
construed in accordance with English law.
9. This Substitution Certificate may be executed in any number
of counterparts and all of such counterparts taken together
shall be deemed to constitute one and the same instrument.
103
Schedule to Substitution Certificate
Existing Bank's Commitments (Portion Substituted)
Tranche 1 Commitment:
Tranche 2 Commitment:
Tranche 3 Commitment:
Existing Bank's Participations in Utilisations (Portion
Substituted)
Tranch Amount Amount hereby Type of Utilisation Next
of Existing Substituted Utilisation Date Interest
Bank's
participation Payment Date
Details of Bills:
Existing Bank: New Bank:
[Name] [Name]
By: By:
Date: Date:
Facility Office:
Address for Notices:
Attention:
Telex:
Fax:
CREDIT SUISSE
for itself and as Facility Agent and for and
on behalf of the Obligors, the Arrangers,
the Banks and the Security Agent and each
of the parties to the Intercreditor Agreement
By: By:
Date:
104
SCHEDULE E
CALCULATION OF ADDITIONAL COST
(1) The Additional Cost relative to each Advance where (and to
the extent that) Banks making such Advance are subject to
the Mandatory Liquid Asset requirements of the Bank of
England, will be, subject as hereinafter provided, for the
Interest Period relating to such Advance (or, if longer than
three months, for each consecutive period of three months
within such Interest Period and for any balance of such
Interest Period) (which Interest Period if not longer than
three months and each other such period is herein referred
to as a "Relevant Period") the percentage rate (or the
arithmetic average of the percentage rates where there is
more than one Reference Bank supplying the same) supplied by
the Reference Banks (or such of them as supply it to the
Facility Agent) arrived at by applying the following formula
in relation to each Reference Bank:-
Additional Cost = BY + L(Y-X) + S(Y-Z) % per annum
100-(B + S)
Where:-
B = The percentage of such Reference Bank's
eligible liabilities then required to be held on a
non-interest-bearing deposit account with the Bank
of England pursuant to the cash ratio requirements
of the Bank of England.
Y = The rate at which Sterling deposits in an
amount approximately equal to the principal amount
of such Advance are offered by such Reference Bank
to leading banks in the London Interbank Market at
or about 11.00 a.m. on the Utilisation Date
relative to such Advance (or the first day of the
relevant Interest Period) for a period comparable
to the Relevant Period in relation to such
Advance.
L = The average percentage of eligible
liabilities which the Bank of England from time to
time requires each Reference Bank to maintain as
secured money with members of the London Discount
Market Association and/or as secured call money
with those money brokers and gilt-edged market
makers recognised by the Bank of England.
X = The rate at which secured Sterling deposits
in an amount approximately equal to the principal
amount of such Advance may be placed by such
Reference Bank with members of the London Discount
Market Association and/or as secured call money
with money brokers and gilt-edged market makers at
or about 11.00 a.m. on such Utilisation Date (or
the first day of the relevant Interest Period) for
a period comparable to the Relevant Period in
relation to such Advance.
S = The percentage of such Reference Bank's
eligible liabilities then required to be placed as
a special deposit with the Bank of England.
105
Z = The percentage interest rate per annum
allowed by the Bank of England on special
deposits.
For the purposes of this paragraph "eligible liabilities"
and "special deposits" shall bear the meanings ascribed to
them from time to time by the Bank of England.
(2) In the application of the above formula, B, Y, L, X, S and Z
will be included in the formula as figures and not as
percentages, e.g. if B = 0.5% and Y = 15%, BY will be
calculated as 0.5 x 15 and not as 0.5% x 15%.
(3) The Additional Cost computed by the Facility Agent in
accordance with this schedule shall be rounded upward, if
necessary, to four decimal places.
(4) The calculation in respect of the Additional Cost for each
Advance denominated in Sterling will be made by the Facility
Agent on the first day of each Relevant Period.
(5) Calculations will be made on the basis of a year of 365 days
and the actual number of days elapsed.
(6) If no Reference Bank furnishes the appropriate information
for the purposes of this Schedule, the Additional Cost shall
be determined by the Facility Agent on the basis of such
other information and quotations as the Facility Agent shall
reasonably determine to be appropriate.
(7) In the event of a change in circumstances (including the
imposition of alternative or additional official
requirements, excluding capital adequacy requirements) which
renders the above formula inappropriate in the reasonable
opinion of the Facility Agent, the Facility Agent shall
promptly notify the Company and the Banks thereof and (after
consultation with the Reference Banks and the Company) shall
notify the Borrowers of the manner in which the Additional
Cost shall thereafter be determined (which manner shall be
determined in a bona fide manner and provide a fair
assessment of the Additional Cost) and the Obligors and the
Banks shall be bound thereby.
106
SCHEDULE F
ACCESSION AGREEMENT
THIS ACCESSION AGREEMENT is dated the day of ,
19 and made BETWEEN [ ] (the "Additional
Borrower") (1), (the "Company" and an "Existing Borrower" and a
"Guarantor") (2), CSW (UK) PLC ("Bidco") and an "Existing
Borrower" and a "Guarantor") (3) [ ] (each
also an "Existing Borrower") (4), and CREDIT SUISSE in its
capacities as Arranger, Facility Agent and Security Agent under
the Facility Agreement referred to in Recital (A) hereof and on
behalf of the other Arrangers and the Banks parties to and
defined as such in such Facility Agreement and on behalf of each
of the parties to the Intercreditor Agreement (5) other than the
Obligors.
WHEREAS:
(A) By and upon and subject to the terms of a facility agreement
(the "Facility Agreement", which term includes any
supplements and amendments thereto which may at any time be
made in relation thereto and also any Substitution
Certificates and Accession Agreements) dated 5th November,
1995 made between the Company and Bidco as Borrowers and
Guarantors as therein defined, the Arrangers, the several
banks parties thereto as Banks, Credit Suisse as Facility
Agent and Security Agent, term loan facilities and a
revolving credit facility were made available to certain of
the Borrowers (as defined in the Facility Agreement).
(B) Each of the entities expressed to be party hereto (other
than the Additional Borrower), whether directly or through
signature hereof by the Facility Agent or the Company on its
behalf, is a party to the Facility Agreement and the
Intercreditor Agreement either by having been an original
party thereto or pursuant to an Accession Agreement or a
Substitution Certificate to which it is party or otherwise.
(C) The Additional Borrower wishes to become party to the
Facility Agreement as a Borrower pursuant to the procedure
established in Clause 19 of the Facility Agreement and a
party to the Intercreditor Agreement pursuant to the
procedure established in Clause 18 of the Intercreditor
Agreement, by the execution of this Accession Agreement.
NOW IT IS HEREBY AGREED as follows:-
1. Definitions
Terms used herein which are defined in or to which a meaning
or construction is assigned by or in the Facility Agreement
shall, unless otherwise defined herein, have the same
meaning and construction herein as therein.
2. Agreements, Confirmations and Representations
(a) The Additional Borrower hereby:-
(i) confirms that it has received a copy of the Facility
Agreement and the Intercreditor Agreement, together
with such other documents and information as it has
required in connection herewith and therewith;
107
(ii) agrees to become, with effect from the date of this
Accession Agreement a Borrower under the Facility
Agreement and an Obligor under the Intercreditor
Agreement and agrees to be bound in such capacity with
effect from such date by the terms of the Facility
Agreement and the Intercreditor Agreement and
undertakes accordingly to perform its obligations as a
Borrower or, as the case may be, Obligor thereunder;
(iii) confirms the accuracy of the information set out
under its name at the end of this Accession Agreement;
(iv) represents and warrants as a Borrower to the Arranger,
the Banks, the Security Agent and the Facility Agent in
the terms of Clause 20.1 (other than paragraphs [(k),
(l), (m), and (o)(ii),] of the Facility Agreement by
reference to the facts and circumstances existing at
the date hereof; and
(v) confirms that it has not relied on any of the Finance
Parties, to assess or inform it as to the legality,
validity, effect or enforceability of the Facility
Agreement or the Intercreditor Agreement or any other
document referred to therein or the accuracy or
completeness of any such information as is referred to
in paragraph (i) above or the creditworthiness,
affairs, condition or status of any of the parties to
the Facility Agreement or the Intercreditor Agreement,
or any such other document.
(b) The Existing Borrower(s), the Guarantors and the Finance
Parties and the parties to the Intercreditor Agreement
hereby agree amongst themselves and with the Additional
Borrower that the Additional Borrower shall become party to
the Facility Agreement and the Intercreditor Agreement with
effect from the date of this Accession Agreement.
3. Law
This Accession Agreement shall be governed by and construed
in accordance with English law.
IN WITNESS WHEREOF the parties hereto have caused this Accession
Agreement to be duly executed on the date first written above.
Additional Borrower:
Company:
CSW INVESTMENTS
for itself and as agent for and on
behalf of the Existing Borrowers and
the Guarantors
By:
108
Facility Agent:
CREDIT SUISSE
for itself and as Facility Agent and
for and on behalf of the Arrangers,
the Banks and the Security Agent
and all parties to the
Intercreditor Agreement
other than the Obligors
By:
109
SCHEDULE G
DOCUMENTARY CONDITIONS PRECEDENT
1. A certified copy of the memorandum and articles of
association (if any), statutes or by-laws and of each other
constitutional or governing document of each Obligor.
2. A certified copy or originals of all other Transaction
Documents.
3. The fee letter(s) referred to in Clause 26.2 and 26.3 duly
executed by the Company.
4. At least two originals of (a) the Security Documents, duly
executed by each relevant Obligor, and (b) (if Subordinated
Debt is to be subscribed) the Intercreditor Agreement, duly
executed by all parties other than the Finance Parties.
5. A certified copy of a resolution of the Directors of each
Obligor approving the transactions and matters contemplated
by this Agreement and the other Finance Documents to which
it is a party and authorising an Authorised Signatory of
such Obligor to execute respectively on their behalf all the
Finance Documents to which they are party and in the case of
documents to be executed under seal or as a deed,
authorising the execution thereof as a deed or the
affixation of the seal and the witnessing thereof by the
appropriate officers in accordance with the relevant
Obligor's articles of association, statutes, by-laws or
other constitutional documents.
6. A copy of (and of all applications for) any and all
approvals, consents, licences, exemptions and other
requirements of governmental and other authorities required
for the entering into or performance of the Finance
Documents and any other Transaction Document.
7. A specimen, of the signature of each person (each being an
Authorised Signatory) authorised to execute any of the
Finance Documents on behalf of any Obligor and/or to sign
all notices, certificates and other documents or
communications to be delivered by such Obligor thereunder.
8. An opinion, addressed to the Facility Agent and the Banks,
of English legal advisers to the Facility Agent and the
Banks as to such matters relating to the Obligors and their
obligations under the Finance Documents as the Facility
Agent may reasonably require.
9. The Offer Document, reflecting the text of the Press
Release.
10. The Press Release.
11. A copy of any and each Licence Undertaking.
12. A copy of any amendments to be made to the Licence
consequent on the acquisition of the Shares by the Company.
110
SCHEDULE H
Form of Xxxx
Face of Xxxx
No. for pounds ...................
Commitment pounds .......... 19.....
To
On ................................... 19.... pay against this
Xxxx of Exchange to our order the sum of
.................................................... for value
received against [ ].
For and on behalf of
....................
Authorised Signatory
Reverse of Xxxx
For and on behalf of
....................
Authorised Signatory
111
SCHEDULE I
Form of Power of Attorney
THIS POWER OF ATTORNEY is made as a deed the day of
199[ ] by [ ] (registered number
[ ]) (the "Borrower") for the purposes of
a Facility Agreement dated 5th November, 1995 (the "Facility
Agreement") made between (inter alios) the Borrower, the
Arrangers, the Banks and Credit Suisse as Facility Agent and
Security Agent.
1. Terms defined in the Facility Agreement have their defined
meanings when used in this Deed.
2. The Borrower hereby appoints Credit Suisse to be the
attorney of the Borrower, on behalf of the Borrower, to
draw, endorse and deliver, in accordance with the following
provisions of this Deed, any Bills which the Borrower is
obliged under Clause 6 of the Facility Agreement to ensure
that the Facility Agent receives as a result of any
Utilisations of the Tranche 3 Facility by the Borrower by
way of Bills.
3. The powers conferred on Credit Suisse under paragraph 2 of
this Deed shall be exerciseable jointly by any two persons
(whether or not directors) who are for the time being
authorised signatories of Credit Suisse.
4. In exercising those powers, such authorised signatories
shall:
(i) act as the agents of Credit Suisse in its capacity as
the Borrower's attorney under this Deed; and
(ii) sign on behalf of Credit Suisse and the Borrower as
follows:
"For and on behalf of [ ] by Credit Suisse as
Attorney.
....................
Authorised Signatory"
5. Any authorised signatory of Credit Suisse may make such
arrangements as are customary for facilities of this type
for the Bills drawn and endorsed under this Deed to be
delivered in accordance with the Facility Agreement.
6. Any Bills drawn, endorsed and delivered in accordance with
this Deed shall be binding upon the Borrower for all
purposes and the Borrower hereby agrees to ratify any action
taken by or on behalf of Credit Suisse in accordance with
the terms of this Deed.
7. This Deed shall remain in full force and effect and may be
acted upon until the receipt by Credit Suisse of a notice in
writing which is signed by a director or the secretary of
the Borrower, is addressed to Geoff Ireland or Xxxx
Chrisford of Credit Suisse, is left at (not posted to) the
offices of Credit Suisse and expressly revokes this Deed.
112
8. Notwithstanding the foregoing such revocation shall not take
effect with respect to any Bills in relation to which a
Drawdown Notice has been issued prior to the time of receipt
by Credit Suisse of the notice of revocation referred to in
paragraph 7 above and in relation to which the powers of
Credit Suisse contained in this Deed shall remain in full
force and effect.
9. This Deed shall be governed by English law.
IN WITNESS whereof the Borrower has executed this Deed on the
date first before written.
Executed as a deed by )
[ ] )
acting by )
and )
..........................
director
..........................
director/secretary
113
SIGNATORIES TO FACILITY AGREEMENT
The Company
CSW INVESTMENTS
By: X. XXXXXXXXX
Bidco
CSW (UK) PLC
By: X. XXXXXXXXX
The Arrangers
CITIBANK INTERNATIONAL PLC
By: X. XXXXXXXX
CREDIT SUISSE
By: X. XXXXXXX By: X. XXXXX-XXXXXX
UNION BANK OF SWITZERLAND
By: X. XXXXX By: X. XXXXXXXX
The Original Banks
CITIBANK, N.A.
By: X. XXXXX
CREDIT SUISSE
By: X. XXXXXXX By: X. XXXXX-XXXXXX
UNION BANK OF SWITZERLAND
By: X. XXXXX By: X. XXXXXXXX
The Facility Agent and the Security Agent
CREDIT SUISSE
By: X. XXXXXXX By: X. XXXXX-XXXXXX
