EXHIBIT (b)(3)
DATED 1999
(1) UNITED NEWS & MEDIA PLC
as Original Borrower and/or Guarantor
- and -
(2) UNITED FINANCE LIMITED
as Original Subsidiary Borrower
- and -
(3) LLOYDS BANK PLC CAPITAL MARKETS
as Facility Agent
- and -
(4) THE FINANCIAL INSTITUTIONS NAMED HEREIN AS BANKS
------------------------------------
MULTICURRENCY
REVOLVING CREDIT
AGREEMENT
US$240,000,000
------------------------------------
CONTENTS
1. INTERPRETATION 1
2. THE FACILITY 15
3. PURPOSE OF FACILITY 16
4. CONDITIONS PRECEDENT TO AVAILABILITY OF FACILITY 16
5. CONDITIONS PRECEDENT TO EACH ADVANCE 16
6. UTILISATION OF THE FACILITY 17
7. ALTERNATIVE CURRENCIES 18
8. INTEREST 19
9. DEFAULT INTEREST 20
10. MARKET DISRUPTION 20
11. REPAYMENT OF ADVANCES 21
12. NETTING OF PAYMENTS 21
13. PARTIAL PAYMENTS 21
14. CANCELLATION AND PREPAYMENT 22
15. PAYMENTS 23
16. TAXES 26
17. INCREASED COSTS 29
18. ILLEGALITY 30
19. MITIGATION 31
20. REPRESENTATIONS 32
21. FINANCIAL INFORMATION 34
22. FINANCIAL CONDITION OF THE GROUP 35
23. COVENANTS 37
24. EVENTS OF DEFAULT 39
25. GUARANTEE 41
26. ACCESSION AND CESSATION OF SUBSIDIARY BORROWERS 44
27. INDEMNITIES 46
28. FEE 47
29. COSTS AND EXPENSES 47
30. THE FACILITY AGENT 48
31. TRANSFERS 51
32. REDISTRIBUTION PROVISIONS 53
33. CALCULATIONS AND EVIDENCE OF DEBT 55
34. AMENDMENTS AND WAIVERS 56
35. NOTICES 57
36. PARTIAL INVALIDITY 58
37. REMEDIES AND WAIVERS 59
38. COUNTERPARTS 59
39. JURISDICTION 59
40. GOVERNING LAW 60
SCHEDULE 1 61
The Banks 61
SCHEDULE 2 61
Conditions Precedent 61
SCHEDULE 3 62
Form of Drawdown Request 62
SCHEDULE 4 62
Form of Novation Certificate 63
The Schedule 65
SCHEDULE 5 66
Timetable 66
SCHEDULE 6 67
Mandatory Liquid Asset Costs Formula 67
SCHEDULE 7 69
Form of Subsidiary Borrower's Accession Memorandum 69
SCHEDULE 8 71
Documents to Accompany Subsidiary Borrower's Accession Memorandum 71
SCHEDULE 9 73
Form of Subsidiary Borrower's Cessation Notice 73
SCHEDULE 10 74
Form of Compliance Certificate 74
THIS FACILITY AGREEMENT is made on of May 1999
BETWEEN:
(1) UNITED NEWS & MEDIA PLC (the "Original Borrower" and/or the "Guarantor");
(2) UNITED FINANCE LIMITED (the "Original Subsidiary Borrower");
(3) LLOYDS BANK PLC CAPITAL MARKETS (the "Facility Agent"); and
(4) THE FINANCIAL INSTITUTIONS identified as Banks in Schedule 1;
IT IS AGREED as follows:
1. INTERPRETATION
1.1 Definitions
In this Agreement:
"Acceding Subsidiary Borrower" means any Subsidiary of the Original
Borrower provided that it has executed and delivered a Subsidiary
Borrower's Accession Memorandum to the Facility Agent pursuant to
clause 26.1 (Delivery of Subsidiary Borrower's Accession Memorandum)
and delivered to the Facility Agent each of the documents set out in
Schedule 8 (Documents to accompany Subsidiary Borrower's Accession
Memorandum) in respect of such Subsidiary in form and substance
satisfactory to the Facility Agent;
"Accounts" means the latest audited annual accounts of the Original
Borrower or, if the same are prepared, the latest audited
consolidated annual accounts of the Group;
"Adjusted Share Capital and Reserves" means the aggregate as
certified by the auditors of the Original Borrower of:
(a) the amount paid up or credited as paid up on the issued share
capital of the Original Borrower; and
(b) the amount standing to the credit of the reserves of the
Original Borrower and its Subsidiaries including share premium
account and capital redemption reserve and plus or minus (as
the case may be) the credit or debit balance on profit and
loss account,
all as shown by the Latest Consolidated Balance Sheet but after:
(c) adjusting for any variation in such paid up share capital,
share premium account and capital redemption and other
reserves (excluding profit and loss account) and any variation
in interests in Subsidiaries since the date of the Latest
Consolidated Balance Sheet (for which purpose an issue or
proposed issue of share capital for cash which has been
underwritten shall be deemed paid up to the extent that the
underwriters are liable for the issue and that such capital
will be paid up within six months from the date on which such
underwriting becomes unconditional);
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(d) deducting any amount distributed or proposed to be distributed
out of the profits except to the extent that such distribution
is attributable to the Original Borrower or any of its
Subsidiaries or has been provided for in such consolidation;
and
(e) excluding any amounts attributable to minority interests in
Subsidiaries, amounts provided for deferred taxation and
amounts attributable to goodwill and any other intangible
assets (other than publishing rights, titles and benefits)
provided that there should be added back the amount of
goodwill (but not other intangibles) that would have remained
on such balance sheet if all goodwill had been carried on the
balance sheet as an asset and amortised on a straight line
basis over 20 years (or such longer period, as determined by
the Original Borrower, as may be in accordance with generally
accepted accounting practice in the United Kingdom) such
amount to be certified by the auditors of the Original
Borrower.
The determination of the auditors as to the amount of the Adjusted
Share Capital and Reserves at any time shall, in the absence of
manifest error, be conclusive and binding on all concerned and, for
the purposes of their computation, the auditors may at their
discretion make such further or other adjustments (if any) as they
think fit;
"Advance" means each Advance made, or to be made, by a Bank under
this Agreement and any Overdue Amount payable to a Bank;
"Affiliate" means, in respect of any Person, a Subsidiary or Holding
Company of such Person, or a Subsidiary of a Holding Company of such
Person;
"Agent" means the Facility Agent;
"Alternative Currency" means any currency (other than Dollars) which
is (if applicable, having regard to the amount being requested under
this Agreement) freely transferable and convertible into Dollars in
the London foreign exchange market;
"Applicable Treaties" means, in relation to any bank or financial
institution and an Obligor, such double tax treaties or conventions
between the jurisdiction in which such bank or financial institution
is resident for Tax purposes on the one hand and the jurisdiction in
which the relevant Obligor is resident on the other;
"Authorised Signatory" means, in relation to any Person and any
communication to be made, or any document to be executed or
certified by that Person, any individual that has been duly
authorised by that Person to make such communication or to execute
or certify any documents on behalf of that Person;
"Available Commitment" means, in relation to any Bank at any time
but subject always to the provisions of clause 2.2, its Commitment
less the aggregate Dollar Amount of its Advances which are
outstanding at such time adjusted, in the case of a proposed
Utilisation only, so as to take into account:
(a) any reduction in the Commitment of such Bank which will occur
prior to the commencement of, or during, the Term relating to
the proposed Utilisation consequent upon a cancellation of the
whole or a part of that Bank's Commitment under this
Agreement;
6
(b) the Dollar Amounts of any Advances which, pursuant to any
other Drawdown Request, such Bank has been requested to make
on or before the proposed Drawdown Date; and
(c) the Dollar Amounts of any Advances which were made by such
Bank and which are due to be repaid on or before the proposed
Drawdown Date;
"Available Facility" means, at any time, the aggregate of the
Available Commitments at such time;
"Availability Period" means the period commencing on the Effective
Date and ending on the date falling one month before the Final
Repayment Date (both dates inclusive);
"Bank" means each of the financial institutions identified as Banks
in Schedule 1 and each New Bank (together the "Banks");
"Basle Paper" refers to the paper prepared by the Basle Committee on
Banking Regulations and Supervisory Practice dated July 1988 (as
amended in November 1991) entitled "International Convergence of
Capital Measurement and Capital
Standards";
"Borrowers" means, at any time, the Original Borrower and the
Subsidiary Borrowers at such time and "Borrower" means any of them;
"Business Day" means:
(a) (other than in relation to rate fixing in euros or euro units)
a day (excluding a Saturday and Sunday) on which banks are
open for business in London and New York; and
(b) if such reference relates to a date for the payment or
purchase of any sum denominated in an Alternative Currency
(other than Sterling, euros, euro units or national currency
units), a day on which banks are generally open to all
business in the principal financial centre in the country or,
as the case may be, countries of such Alternative Currency;
and
(c) in relation to a payment of or other transaction in euros,
euro units and national currency units (other than Sterling),
a TARGET Day;
"Certified Copy" means, in respect of any document, agreement or
communication to be delivered in connection with this Agreement, a
copy thereof which has been certified by an Authorised Signatory of
the Person providing the document, agreement or communication as
being a true copy of the original;
"clause" refers, unless otherwise stated, to a clause of this
Agreement;
"Compliance Certificate" means a certificate substantially in the
form set out at Schedule 10 (Form of Compliance Certificate);
"Commitment" means:
7
(a) in relation to a Bank which is a Bank on the date of this
Agreement, the relevant amount set opposite its name in
Schedule 1 (Banks and Commitments) and the amount of any other
Bank's Commitment acquired by it under Clause 31.2 (Banks);
and
(b) in relation to a Bank which becomes a Bank after the date of
this Agreement, the amount of any other Bank's Commitment
acquired by it under Clause 31.2 (Banks),
to the extent not cancelled, reduced or transferred under this
Agreement.
"Default" means an Event of Default or a Potential Event of Default;
"Default Interest Period" is defined at clause 9.2 (Default
Interest);
"Dollar Amount" means, in relation to an Advance denominated in
Dollars, the principal amount of such Advance and, in relation to
any other Advance, the amount of Dollars which may be purchased with
the principal amount of such Advance at the Rate of Exchange on the
date falling three Business Days before that Advance's Drawdown
Date;
"Dollars" and "$" means the lawful currency of the United States of
America;
"Drawdown Date" means, in respect of an Advance, the date such
Advance is made, or is proposed to be made, under this Agreement;
"Drawdown Request" means a request substantially in the form set out
at Schedule 3 (Form of Drawdown Request);
"Effective Date" means the date on which the Facility Agent notifies
the other parties pursuant to Clause 4 (Conditions Precedent to
Availability) that each of the conditions precedent to the
availability of the Facility have been satisfied;
"EMU" means Economic and Monetary Union as contemplated in the
Treaty on European Union;
"EMU Legislation" means legislative measures of the European Council
for the introduction of, changeover to or operation of a single or
unified European current (known as the euro), being in part the
implementation of the third stage of EMU;
"euro" means the single currency of participating member states of
the European Union;
"euro unit" means the currency unit of the euro;
"Event of Default" means one of the events specified in clause 24.1
(The Events of Default) as being an "Event of Default";
"Facility" means the multicurrency revolving credit facility granted
to the Borrowers in this Agreement;
"Facility Office" means,
8
(i) in relation to the Facility Agent, the office identified with
its signature below;
(ii) in relation to any Bank, the office identified with its
signature below (or, in the case of a New Bank, at the end of
the Novation Certificate to which it is a party as New Bank);
"Fee Letter" means the letter of even date herewith addressed by the
Facility Agent to the Original Borrower;
"Final Repayment Date" means the date falling on the expiry of 364
days from the date of this Agreement;
"Finance Documents" means this Agreement, each Subsidiary Borrower's
Accession Memorandum, each Subsidiary Borrower's Cessation Notice
and the Fee Letter and any other document which the Facility Agent
and the Borrowers (acting reasonably) designate as being a Finance
Document and "Finance Document" means any of them;
"Finance Party" means, as the context requires, the Arranger, the
Facility Agent or a Bank and "Finance Parties" means each of them;
"Financial Indebtedness" means, in relation to any Person, any
obligation, whether incurred as a principal or as a surety, actual
or contingent, present or future, for the payment or repayment of
money, in respect of:
(a) monies borrowed or monies raised by acceptance under an
acceptance credit arrangement;
(b) any note, bond (other than a performance bond issued in the
ordinary course of trading by one Group Member in respect of
the obligations of another Group Member), debenture, loan
stock or other similar instrument;
(c) receivables sold or discounted to the extent of any recourse
to any Group Member;
(d) the purchase price payable in respect of an asset, the payment
of which is deferred where the deferred payment is arranged
primarily as a method of finance or financing or refinancing
the acquisition of the asset acquired;
(e) payment obligations under hire purchase agreements,
conditional sale agreements and finance leases, the primary
purpose of which is to raise finance or to finance the
acquisition of the relevant asset (but, for the avoidance of
doubt, not including any liabilities arising under operating
leases);
(f) any interest rate swap, currency swap, currency exchange
transaction, cap, floor, collar or option arrangement and any
other hedging or treasury transaction (or any combination of
any such transactions) which is entered into with a view to
managing exposure to fluctuations in interest rates or
currency exchange rates (the amount of such Financial
Indebtedness in relation to any such transaction or
arrangement shall be calculated by the xxxx-to-market
valuation of such transaction at the time such valuation is
9
carried out); and
(g) any amount raised under any other transaction having, as a
primary and not an incidental effect, the commercial effect of
a borrowing or raising of money;
provided that where the amount of Financial Indebtedness falls to be
calculated:
(i) Financial Indebtedness owed by one Group Member to another
wholly-owned Group Member shall be excluded;
(ii) no amount shall be taken into account more than once in the
same calculation;
(iii) when any amount required to be taken into account on any
particular day is denominated or payable in a currency other
than Sterling, that amount shall be converted into Sterling at
the Rate of Exchange on that day for the purchase of such
other currency;
"Group" means the Original Borrower and its Subsidiaries;
"Group Member" means a member of the Group;
"Guarantor" means United News & Media PLC in its capacity as
guarantor of the obligations of the Subsidiary Borrowers as
contemplated pursuant to clause 25 (Guarantee) of this Agreement;
"Holding Company" means, in respect of any Person, the company
or corporation of which such Person is a Subsidiary;
"Indebtedness" shall be construed so as to mean any obligation
(whether incurred as principal or as surety) for the payment or
repayment of money, whether present or future, actual or contingent;
"Initial Financial Statements" means the audited consolidated
accounts of the Original Borrower for the Financial Year ended 31
December 1998;
"Interest Rate Fixing Day" means:
(a) in the case of an Advance (other than an Advance denominated
in Sterling), the day falling two Business Days before that
Advance's Drawdown Date; and
(b) in the case of an Advance denominated in Sterling that
Advance's Drawdown Date; and
(c) in the case of an Overdue Amount (other than an Overdue Amount
denominated in Sterling), the day falling two Business Days
before the commencement of the period for which the rate is to
be determined in respect of such Overdue Amount; and
(d) in the case of an Overdue Amount denominated in Sterling the
first day of the
10
period for which the rate is to be determined in respect of
such Overdue Amount;
"Latest Consolidated Balance Sheet" means, at any date, the then
latest consolidated balance sheet forming part of the group accounts
of the Original Borrower prepared for the purpose of the Companies
Xxx 0000, as amended from time to time, which has been audited and
has been reported on by the auditors as the main accounts of the
Group, whether prepared in accordance with the historical cost
convention or current cost convention or otherwise.
"LIBOR" means in relation to any Advance or Overdue Amount, on any
day, the London Interbank Offered Rate for deposits in the specified
currency, being determined by the Facility Agent to be either:
(i) the offered rate (if any) for the specified term which appears
on page 3750 of the Telerate screen which displays British
Bankers Association Interest Settlement Rates for deposits in
the specified currency for the period for which such rate is
to be determined at 11.00am London time on the relevant
Interest Rate Fixing Day or, if such page or service shall
cease to be available, such other page or service displaying
the London Interbank Offered Rates in such currency of prime
banks as the Facility Agent shall, (and with the consent of
the Original Borrower, not to be unreasonably withheld or
delayed) after consultation with the Banks, select as at 11.00
am London time on the relevant Interest Rate Fixing Day; or
(ii) if no such display rate is then available for such period or
currency and, at the time the Facility Agent and the Original
Borrower have not selected any alternative service as
contemplated in (i) above, the arithmetic mean (rounded
upwards, if not already such a multiple, to the nearest five
decimal places) of the respective rates notified to the
Facility Agent by each of the Reference Banks as the rate at
which it is offered deposits in an amount approximately equal
to the relevant Advance in the specified currency and for the
specified term by prime banks in the London Interbank Market
at 11.00am London time on the relevant Interest Rate Fixing
Day for the specified term,
and for the purpose of this definition "specified currency" means
the currency of such Advance or, as the case may be, Overdue Amount
and "specified term" means the Term of such Advance or, as the case
may be, in respect of an Overdue Amount, the Default Interest Period
selected by the Facility Agent pursuant to clause 9 (Default
Interest);
"Majority Banks" means a Bank or group of Banks whose aggregate
Commitments amount to more than sixty-six and two thirds per cent.
of the Total Commitments or, if each Bank's Commitment has been
reduced to zero, would have amounted in aggregate to more than
sixty-six and two thirds per cent. of the Total Commitments,
immediately prior to such reduction to zero;
"Mandatory Liquid Asset Costs" means the cost calculated in
accordance with Schedule 6 (Mandatory Liquid Asset Costs Formula)
carried by a Bank of complying with the Mandatory Liquid Asset
requirements from time to time of the Bank of England and/or charge
imposed by the Financial Services Authority (or other agency
11
performing functions concerned with the regulation of the banking
industry in the United Kingdom);
"Margin" means;
(a) in the event that the Available Facility is greater than
$160,000,000, at any time prior to the Six Month Date, 0.35%
per cent. per annum, and at any time on or after the Six Month
Date, 0.5% per cent. per annum; and
(b) in the event that the Available Facility is equal to or less
than $160,000,000, at any time prior to the Six Month Date,
0.50% per cent. per annum, and at any time on or after the Six
Month Date, 0.65% per cent. per annum;
"Material Adverse Effect" means an effect resulting from any
occurrence of whatever nature (including without limitation any
adverse determination in any litigation, arbitration, or
governmental investigation or proceeding), which is materially
adverse to the ability of:
(i) the Original Borrower or any Subsidiary Borrower to
comply with their respective obligations (other than
their payment obligations) under the Finance Documents;
or
(ii) the Original Borrower to comply with its payment
obligations under the Finance Documents (including
without limitation pursuant to Clause 25 (Guarantee);
"month" means a period starting on one day in a calendar month and
ending on the numerically corresponding day in the following
calendar month, except that:-
(i) if such corresponding day is not a Business Day, in
which case it shall end on the next day which is a
Business Day or, if there is not a corresponding day in
that calendar month, the last Business Day in that
calendar month; and
(ii) if a Term commences on the last Business Day of a
calendar month, that Term shall end on the last Business
Day in the calendar month in which it is to end;
"national currency unit" means the unit of currency (other
than a euro unit) of a participating member state;
"New Bank" is defined at clause 31.2 (Banks);
"Non-Recourse Indebtedness" means any Indebtedness of a Group
Member, which is a single purpose company whose principal assets and
business are constituted by a particular project (an "SPV") and,
under the terms of such Indebtedness, payment (or repayment) thereof
is to be made solely from the revenues arising out of such project
with recourse for such payment only to (i) such revenues; and/or
(ii) the assets of such SPV, and for the avoidance of doubt none of
the liabilities of that SPV are directly or indirectly the subject
of security or a guarantee, indemnity or any other form of
assurance, undertaking or support from any other Group Member other
than Security Interests granted by a Group Member over the shares of
such SPV to secure
12
the said Indebtedness;
"Novation Certificate" means a certificate substantially in the form
set out in Schedule 4 (Form of Novation Certificate);
"Obligors" means the Borrowers and the Guarantor (each an
"Obligor");
"Obligor's Agent" means the Original Borrower, appointed to act on
behalf of each Obligor in relation to the Finance Documents pursuant
to clause 2.6;
"Overdue Amount" is defined at clause 9 (Default Interest);
"participating member state" means each state so described in any
EMU legislation;
"Party" means any Person party to this Agreement;
"Permitted Security Interests" means:
(i) Security Interests in favour of the Banks in relation to the
obligations of any Obligor under the Facility;
(ii) Security Interests for which the Borrower has ensured, in a
manner on each occasion satisfactory to the Majority Banks
that the obligations of any relevant Obligor under this
Agreement (i) share equally and rateably with the indebtedness
or other obligations secured by any such Security Interest and
that in the creation of such Security Interest express
provision is made to such effect, or (ii) receive the benefit
of a Security Interest on other assets or income of the Group
which is, in the opinion of the Majority Banks, equivalent to
that granted in relation to such other indebtedness or
obligations;
(iii) Security Interests for taxes due and any liens arising by
operation of law or in the ordinary course of trade provided
that in each such case the underlying obligation is not
overdue for a period in excess of 30 days;
(iv) Security Interests arising pursuant to conditional sale or
other title retention arrangements relating to supplies made
to any Group Member in the ordinary course of trading;
(v) Security Interests given or arising over cash and marketable
securities in the normal course of business of those Group
Members whose principal business is securities broking;
(vi) Security Interests arising in connection with any cash
management or netting arrangement made between any banks or
financial institution and any Group Member in the ordinary
course of business;
(vii) Security Interests created in the ordinary course of business
over cash or debt securities provided as collateral to any
bank, financial institution, stock exchange or clearing house
for foreign exchange, swaps or other hedging transactions in
the ordinary course of participating in such transactions;
13
(viii) any Security Interests existing or future created over a
deposit in connection with a back-to-back loan facility
arrangement where (i) the deposit is in the same currency as
the outstanding advances under the loan facility to which it
relates and (ii) the amount of the deposit does not exceed the
higher of (aa) the amount of the said loan facility and (bb)
the aggregate amount of the advances outstanding under the
said loan facility plus an amount equal to the aggregate of
the interest that will accrue on all such advances during the
interest periods then current;
(ix) the giving, simultaneously with or within ninety (90) days
after the acquisition of shares or debentures of any person or
entity, of any Security Interest for the unpaid purchase price
of, or borrowed monies to purchase, such shares or debentures,
on such share or debentures hereafter acquired and not
heretofore owned by the Original Borrower or the relevant
Subsidiary, provided that in each such case such Security
Interest is limited to such acquired shares or debentures;
(x) Security Interests which may exist over any property or other
asset at the time when such property or other asset is
acquired by the Original Borrower or the relevant Subsidiary
or which may be created at the time of acquisition thereof to
secure an amount not exceeding the purchase price thereof and
interest thereon (but so that the principal amount thereby
secured may not be increased);
(xi) Security Interests (a) which may exist over any property or
other assets of a body corporate or any of its Subsidiaries at
any time when share capital of such body corporate is acquired
by the Original Borrower, or the relevant Subsidiary, or (b)
which may be created (if permitted by applicable law) at the
time of such acquisition to secure an amount not exceeding the
acquisition price of such share capital and interest thereon
at then commercial rates (but so that, in the case of (a) or
(b) the principal amount thereby secured may not be
increased);
(xii) Security Interests securing an aggregate principal amount not
exceeding (pound)30,000,000 (or its equivalent in other
currencies) over land and buildings owned directly or
indirectly by United News & Media (Property Investments)
Limited where the amount secured is raised to finance or
refinance the acquisition or development of that land or
buildings and where the indebtedness so secured is not
guaranteed or secured by any Group Member; or
(xiii)Security Interests created by any Group Member to secure any
Non-Recourse Indebtedness;
(xiv) Security Interests granted with the prior written consent of
the Majority Banks from time to time; and
(xv) Security Interests securing an aggregate principal amount not
exceeding the higher of 5% of Adjusted Capital and Reserves
and (pound)50,000,000 (or its equivalent in other currencies);
"Person" shall include any person, firm, company, corporation,
Government, State
14
or agency of a State or any association or partnership (whether or
not having a separate legal personality) of two or more of the
foregoing;
"Potential Event of Default" means an event which, with the passage
of time, the giving of notice, or the making of any determination
(or any combination of those three), will become an Event of
Default;
"Principal Subsidiary" means, at any time:
(i) any Subsidiary of the Original Borrower (other than a
Subsidiary which does not trade and acts solely as a Holding
Company):
(a) whose turnover in any Financial Year is equal to or
greater than six per cent. of the turnover of the Group
in such Financial Year; or
(b) whose Profit before Interest and Tax in any Financial
Year is equal to or greater than six per cent. of the
Consolidated Profit before Interest and Tax of the Group
in such Financial Year,
each as determined by reference to the latest audited
financial statements (or, in the case where under or in
accordance with applicable law or accounting practice, audited
accounts are not required or available, the latest accounts as
incorporated in the most recent audited consolidated financial
statements of the Group) of such Subsidiary and the latest
audited consolidated financial statements of the Group,
provided that, in the case of a Subsidiary acquired after the
end of the Financial Year to which the latest relevant audited
accounts related, the reference to the latest audited
financial statements (or, as the case may be, latest accounts
as incorporated in the most recent audited consolidated
financial statements of the Group) for the calculation above
shall, until audited accounts for the financial period in
which the acquisition is made are published, be deemed to be a
reference to such first-mentioned accounts as if such
Subsidiary had been shown in such accounts by reference to its
own latest audited accounts (or, as the case may be, latest
accounts as so incorporated), adjusted as deemed appropriate
by the auditors of the Original Borrower; or
(ii) any Subsidiary (other than a Subsidiary which does not trade
and acts solely as a Holding Company) not falling within
paragraph (i) above but which, as a result of any intra-group
transfer or reorganisation would, adopting the test referred
to in paragraph (i) above and as if the accounts referred to
in such paragraph had been drawn up immediately following such
transfer or reorganisation, be a Principal Subsidiary upon the
completion of such transfer or reorganisation, and a report by
the auditors of the Original Borrower that in their opinion a
Subsidiary is or is not, or was or was not, at a particular
time or during any particular period a Principal Subsidiary
shall, in the absence of manifest error, be conclusive and
binding on all the Parties hereto;
For the purposes of the above "Profit before Interest and Tax"
of any Subsidiary shall be determined in accordance with
"Consolidated Profit before Interest and Tax" in clause 22.2
(Financial definitions) but on an individual company basis
only and by reference to the unconsolidated
15
accounts of such Subsidiary by itself regardless of whether
such Subsidiary itself has Subsidiaries.
"Proportion" means, in relation to any Bank:
(i) whilst no Advances are outstanding hereunder, the proportion
borne by its Commitment to the Total Commitments (or, if the
Total Commitments are then zero, by its Commitment to the
Total Commitments immediately prior to their reduction to
zero); or
(ii) whilst at least one Advance is outstanding hereunder, the
proportion borne by its share of the Dollar Amount of the
Facility to the Dollars Amount of the Facility;
"Qualifying Bank" means
(a) in relation to any Utilisation by an Obligor resident in the
United Kingdom, a Bank which is:
(i) a bank as defined in Section 840A of the Taxes Act and
which is within the charge to UK Corporation Tax as
regards any interest received by it under this
Agreement; or
(ii) resident in a jurisdiction which has a double taxation
treaty with the United Kingdom and under or by virtue of
such treaty payments or principal and interest are
exempted in full from retention, reduction, withholding
or similar of or on account of any Taxes and which is
not acting through a Facility Office in the United
Kingdom; or
(b) in relation to any Utilisation by an Obligor not resident in
the United Kingdom, a Bank which, at the date such Bank gives
its approval to such Obligor acceding to this Agreement as a
Subsidiary Borrower pursuant to clause 26.1 (Delivery of
Subsidiary Borrower's Accession Memorandum), or in the case of
a Bank that becomes a party to this Agreement pursuant to a
Novation Certificate, at the date such Bank signed such
Novation Certificate would, if a payment of principal,
interest or otherwise was made by such Obligor under this
Agreement, be entitled by virtue of the laws of the
jurisdiction of residence of the Obligor or by virtue of an
Applicable Treaty to receive such payment from the Obligor
without deduction or withholding of Tax;
"Rate of Exchange" means, on any date, the Facility Agent's spot
rate of exchange, at or about 10am on such date, for the purchase of
Dollars with the relevant Alternative Currency;
"Reference Banks" means the principal London office of Lloyds Bank
Plc and following Syndication such other Banks as may become
additional or replacement banks pursuant to clause 33.7 (Reference
Banks);
"Repayment Date" means, in relation to any Advance, the last
day of its Term;
"Requested Amount" means, in respect of a Drawdown Request, the
principal
16
amount requested to be borrowed under that Drawdown Request;
"Schedule" means, unless otherwise stated, a schedule of this
Agreement;
"Scheduled Time" means, in respect of any clause where such
expression appears, the time set opposite such clause at Schedule 5
(Timetable) under the heading "Scheduled Time";
"Security Interest" shall be construed as a reference to a mortgage,
charge, pledge, lien, security interest, conditional sale or other
title retention agreement or other encumbrance securing any
obligation of any Person;
"Six Month Date" means the date falling 182 days after the date of
this Agreement;
"Sterling" and "(pound)" means the lawful currency for the time
being of the United Kingdom;
"Subsidiary" means:-
(a) a subsidiary within the meaning of Section 736 of the
Companies Xxx 0000; and
(b) unless the context otherwise requires, a subsidiary
undertaking within the meaning of Section 258 of the Companies
Xxx 0000,
in each case, as at the date of this Agreement;
"Subsidiary Borrowers" means the Original Subsidiary Borrower and
any Acceding Subsidiary Borrower that has not ceased to be a
Subsidiary Borrower pursuant to clause 26.3 (Cessation of Subsidiary
Borrower) and "Subsidiary Borrower" means any of them;
"Subsidiary Borrower's Accession Memorandum" means a memorandum in
the form or substantially in the form, set out at Schedule 7 (Form
of Subsidiary Borrower's Accession Memorandum) to be delivered by
the Original Borrower to the Facility Agent pursuant to clause 26.1
(Delivery of Subsidiary Borrower's Accession Memorandum);
"Subsidiary Borrower's Cessation Notice" means a notice in the form
or substantially in the form set out at Schedule 9 (Form of
Subsidiary Borrower's Cessation Notice) to be delivered by the
Original Borrower to the Facility Agent pursuant to clause 26.3
(Cessation of Subsidiary Borrower);
"Syndication" means the process by which, before the Final Repayment
Date, and with the written consent of the Original Borrower (such
consent not to be unreasonably withheld or delayed) the Facility
Agent may syndicate the Facility to a group of banks or financial
institutions subject to the terms of this Agreement;
"TARGET" means Trans-European Automated Real-time Gross Settlement
Express Transfer System;
"TARGET Day" means a day on which payments in euros are settled in
the
17
TARGET system;
"Tax" shall be construed so as to include all present and future
taxes, charges, imposts, duties, levies, deductions, withholdings or
amounts or charges of a similar nature, or any amount payable on
account of, or as security for, any of the foregoing, including any
penalties, fines, surcharges or interest payable in connection with
such amounts, and "Taxes" and "Taxation" shall be construed
accordingly;
"Taxes Act" means the Income and Corporation Taxes Act 1988 as the
same may have been or may from time to time be, amended or
re-enacted.
"Term" means, in relation to an Advance, the period for which such
Advance is requested to be borrowed, as adjusted under this
Agreement;
"Total Commitments" means, at any time, the aggregate of the Banks'
Commitments at that time;
"Treaty on European Union" means the Treaty of Rome of 25 March
1957, as amended by the Single Xxxxxxxx Xxx 0000 and the Maastricht
Treaty (which was signed at Maastricht on 7 February 1992 and came
into force on 1 November 1993), as amended from time to time;
"Utilisation" means a utilisation of the Facility; and
"VAT" means value added tax.
1.2 Construction
Unless the contrary is indicated the following rules of construction
shall apply to this Agreement:
1.2.1 "including" means "including without limitation";
1.2.2 references to the "winding-up", "dissolution" or
"administration" of a company or a corporation shall include
any equivalent or analogous proceedings or proceedings having
a similar effect thereto under the law of the place in which
such company or corporation is incorporated or in which it
carries on business;
1.2.3 a "wholly-owned subsidiary" of a Person shall be construed as
a reference to any Person which has no other members except
that other Person and that other Person's wholly-owned
Subsidiaries or Persons acting on behalf of that other Person
or its wholly-owned Subsidiaries;
1.2.4 references to laws or regulations shall be construed as a
reference to such laws or regulations as amended or
re-enacted;
1.2.5 a Bank may procure that its obligations to make an Advance to
a Borrower incorporated in a jurisdiction outside the United
Kingdom are performed by one of its Affiliates. In this event,
references to that Bank in respect of any such Advance will,
unless the context otherwise requires, be construed as a
reference to that Affiliate. However, this will not prejudice
the obligations
18
of that Bank to the other Parties, and, for the purposes of
its Available Commitment, that Bank and the Affiliate will be
treated as a single Bank;
1.2.6 references to any agreement or document, including this
Agreement (but not the Basle Paper), shall be construed as a
reference to that agreement or document as amended, novated or
supplemented;
1.2.7 a person includes its successors and assigns;
1.2.8 unless otherwise stated to the contrary, a time of day is a
reference to London time;
1.2.9 headings are for convenience only and shall be ignored in
construing this Agreement; and
1.2.10 references to the plural include the singular and vice versa.
2. THE FACILITY
2.1 The Facility
Subject to and upon the terms and conditions of this Agreement, the
Xxxxx xxxxx to the Borrowers a committed multicurrency revolving
credit facility.
2.2 Commitments and Maximum amount outstanding
2.2.1 The aggregate Dollar Amount of outstanding Advances shall not,
at any time, exceed the Total Commitments at that time which,
at the date of this Agreement, is $240,,000,000.
2.2.2 The aggregate Dollar Amount of Advances made by a Bank shall
not, at any time, exceed that Bank's Commitment at that time.
2.3 Number of Utilisations
A maximum of five Utilisations may be outstanding at any time.
2.4 Nature of Banks' obligations and rights
2.4.1 The obligations of each of the Banks under this Agreement are
several. The failure of a Bank to perform any of its
obligations will not:
2.4.1.1 increase the liability of any other Bank under this
Agreement nor impose any liability on an Agent; or
2.4.1.2 relieve any other Party from their respective
obligations under this Agreement.
2.4.2 The rights of a Finance Party under this Agreement are
several. A Finance Party may, except as otherwise stated in
this Agreement, separately enforce those rights.
2.5 Company as Obligor's Agent
19
Each Obligor (other than the Original Borrower) by its execution of
this Agreement or an Accession Agreement irrevocably authorises the
Original Borrower to act on its behalf as its agent in relation to
the Finance Documents and irrevocably authorises the Original
Borrower on its behalf to give all notices and instructions
(including, in the case of a Borrower, a Drawdown Request), to
execute on its behalf any Accession Agreement and to make such
agreements capable of being given or made by any Obligor
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 Drawdown
Request) or executed or made such agreements.
2.6 Original Borrower's acts binding
Every act, omission, agreement, undertaking, settlement, waiver,
notice or other communication given or made by the Original
Borrowers 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 other
Obligors as if the other Obligors had expressly made, given or
concurred with the same. In the event of any conflict between any
notices or other communications of the Original Borrower and any
other Obligor, those of the Original Borrower shall prevail. For the
avoidance of doubt, references in this clause 2.6 to "Original
Borrower" shall include the Original Borrower acting in its capacity
as Obligor's Agent.
3. PURPOSE OF FACILITY
3.1 Each Advance shall be used for general corporate purposes.
3.2 Without affecting the obligations of any Borrower under (a) above,
no Finance Party shall be obliged to concern itself with the
application of amounts raised by any Borrower under this Agreement.
4. CONDITIONS PRECEDENT TO AVAILABILITY OF FACILITY
No Borrower may deliver a Drawdown Request unless the Facility Agent has
previously confirmed to the Original Borrower and each of the Banks that
it has received all of the documents set out in Schedule 2 (Conditions
precedent) and that each is, in form and substance, satisfactory to the
Facility Agent.
5. CONDITIONS PRECEDENT TO EACH ADVANCE
5.1 The obligation of each Bank to participate in an Advance is subject
to the conditions precedent that, on both the date that the relevant
Drawdown Request is delivered to the Facility Agent and the Drawdown
Date for that Advance:
5.1.1 no Default has occurred which is either continuing or has not
been waived in writing by the Facility Agent pursuant to
clause 34 (Amendments and waivers); and
5.1.2 the representations in clause 20 (Representations) which are
to be repeated pursuant to clause 20.3 (Repetition of
representations) on those dates are true and correct.
20
6. UTILISATION OF THE FACILITY
6.1 Delivery of Drawdown Request
6.1.1 A Borrower may utilise the Facility by delivering to the
Facility Agent, not later than the Scheduled Time, a duly
completed Drawdown Request.
6.1.2 Each Drawdown Request delivered to the Facility Agent shall
oblige the relevant Borrower to borrow the Requested Amount on
its Drawdown Date on the terms and conditions stated in this
Agreement.
6.2 Completion of Drawdown Request for Advances
Each Drawdown Request in respect of Advances delivered to the
Facility Agent pursuant to clause 6.1 (Delivery of Drawdown Request)
shall be irrevocable and shall not be considered to have been duly
completed unless it specifies:
6.2.1 the proposed Drawdown Date for the making of the Advances
requested, which shall be a Business Day occurring during the
Availability Period;
6.2.2 the currency in which the proposed Advances are to be
denominated which shall be either Dollars and/or an
Alternative Currency;
6.2.3 the Requested Amount, which shall be:
6.2.3.1 if the Requested Amount is in Dollars, a minimum
amount of $5,000,000, an integral multiple of $1,000,000
and less than the Available Facility; or
6.2.3.2 if the Requested Amount is in an Alternative Currency,
an amount comparable to the amount specified in
paragraph (i) above which is less than the Available
Facility; or
6.2.4 an amount equal to the Available Facility;
6.2.5 the Term of the Advances being requested, which shall be a
period of one, two, three or six months (or such other
duration as the Banks may have previously agreed in writing
for such Advances) which will begin on the proposed Drawdown
Date and end on a Business Day which is or precedes the Final
Repayment Date; and
6.2.6 the account to which the proceeds of the proposed Utilisation
are to be paid.
6.3 Requested Amount exceeds Available Facility
If the Requested Amount stipulated in a Drawdown Request would,
whether as a result of the Rate of Exchange applicable to the
Advances requested under that Drawdown Request or otherwise, exceed
the Available Facility, the Requested Amount shall be deemed to be
equal to the Available Facility.
6.4 Amount of each Bank's Advance
6.4.1 The amount of each Bank's Advance will, subject to the terms
of this Agreement, be
21
the proportion of the Requested Amount which its Available
Commitment bears to the Available Facility on the date the
Facility Agent receives the relevant Drawdown Request.
6.4.2 No Bank shall be required to make its Advance if its
Commitment will be fully cancelled under this Agreement either
prior to, or during, the Term of the requested Advance.
6.5 Notification by Facility Agent
6.5.1 The Facility Agent shall, no later than the Scheduled Time,
notify each Bank no later than the Scheduled Time by telefax
or letter of the details of the requested Advances and the
principal amount of that Bank's Advance.
6.5.2 If a Bank's Commitment is reduced in accordance with this
Agreement after the Facility Agent has received a Drawdown
Request, then such part of the proposed Utilisation as is
attributable to that Bank and exceeds its Available Commitment
(as so reduced) shall not be made and the amount of such
Utilisation shall be reduced accordingly.
6.6 Making of Advances
Subject to the terms and conditions of this Agreement, each Bank
shall make its Advance available to the Facility Agent in accordance
with clause 15 (Payments) on the relevant Drawdown Date.
7. ALTERNATIVE CURRENCIES
7.1 Bank's inability to fund
If a Borrower has delivered a Drawdown Request for Advances to be
denominated in an Alternative Currency a Bank may, not later than
the Scheduled Time, notify the Facility Agent that it does not agree
to such request because, in that Bank's considered and reasonable
opinion:
7.1.1 it would be unable, because of circumstances affecting the
London Interbank Market generally, to obtain matching deposits
in that Alternative Currency in the London Interbank Market at
the required time and in sufficient amounts to fund its
Advance; or
7.1.2 it is, or would be, unlawful (whether by reason of that Bank's
inability to obtain exchange control consent or any
governmental or other approval or authorisation) to make, fund
or permit to remain outstanding the proposed Advance; or
7.1.3 provided that the Facility Agent has, in respect of that
Utilisation, been notified by a group of Banks (including that
Bank) to whom in aggregate fifty per cent. or more of the
Dollar Amount of the outstanding Advances is (or, if the
requested Advance was made, would be) owed that LIBOR will
not, because of circumstances affecting the London Interbank
Market generally, reflect the cost to that Bank of obtaining
deposits in such Alternative Currency for the Term of such
Advance,
22
then clause 7.2 (Notification by Facility Agent) shall apply.
7.2 Notification by Facility Agent
If a Bank gives notice under clause 7.1 (Bank's inability to fund),
it is not required to make an Advance in the requested Alternative
Currency, but shall, instead make an Advance denominated in Dollars
on the relevant Drawdown Date in an amount equal to the Dollars
Amount of such Advance and for the same Term. The Facility Agent
shall, not later than the Scheduled Time, inform the relevant
Borrower if any Advances are to be made in Dollars pursuant to the
provisions of this clause 7 (Alternative Currencies).
8. INTEREST
8.1 Interest rate
The rate of interest which shall accrue on each Advance for its Term
is the rate per annum, determined by the Facility Agent to be the
aggregate of LIBOR, the Margin and, the Mandatory Liquid Asset Costs
applicable to that Advance.
8.2 Due date
Save as otherwise provided in this Agreement, accrued interest on
each Advance is payable by the relevant Borrower in arrear on that
Advance's Repayment Date and, if the Term of an Advance exceeds six
months, on the expiry of each period of six months during its Term.
8.3 Duration
Interest on any Advance shall accrue from (and including) the
Drawdown Date for that Advance to (but excluding) the date that such
Advance is repaid in full.
8.4 Notification of LIBOR
The Facility Agent shall promptly notify the relevant Borrower and
the Banks of any determination of LIBOR made by it under this
Agreement;
9. DEFAULT INTEREST
9.1 If any Obligor fails to pay any amount payable by it under this
Agreement on the due date (the unpaid balance being an "Overdue
Amount"), that Obligor shall pay default interest on the Overdue
Amount from (and including) the due date to (but excluding) the date
such Overdue Amount is repaid in full, both before and after
judgment.
9.2 Default interest shall be payable:
9.2.1 on an Overdue Amount at a rate per annum equal to one per
cent. plus the Margin and, LIBOR and the Mandatory Liquid
Asset Costs applicable to that Overdue Amount; and
9.2.2 The period during which an Overdue Amount is outstanding shall
be divided into
23
successive periods (each a "Default Interest Period"), each of
which (apart from the first) shall start on the last day of
the preceding Default Interest Period. The duration of each
Default Interest Period shall (save as provided at paragraph
(d) below) be selected by the Facility Agent having regard,
where possible, to the likely date that the relevant Overdue
Amount will be repaid in full.
9.3 If any Overdue Amount corresponds to the principal amount payable in
respect of an Advance which has become repayable prior to its
Repayment Date, the first Default Interest Period which shall be
selected by the Facility Agent shall be of a duration equal to the
unexpired portion of the Term of such Advance. The rate of the
default interest payable in respect of such Overdue Amount during
that unexpired period shall be one per cent. (1%) over the rate
which would have been applicable to such Advance had it not so
fallen due.
9.4 If less than two of the Reference Banks are offering deposits in the
currency in which an Overdue Amount is denominated, the rate of
default interest in respect of such Overdue Amount shall be equal to
one per cent. (1%), the Margin, the cost to each of the Reference
Banks (expressed as a percentage rate per annum) of funding that
Overdue Amount for the applicable Default Interest Period and, the
Mandatory Liquid Asset Costs applicable to that Overdue Amount.
9.5 Any interest which shall have accrued under this clause 9 (Default
Interest) in respect of an Overdue Amount shall be payable on demand
and, if not paid, compounded at the end of its then current Default
Interest Period.
10. MARKET DISRUPTION
10.1 If paragraph (ii) of the definition "LIBOR" applies and the Facility
Agent is unable to determine LIBOR in relation to any requested
Advance for the purposes of this Agreement as a result of, at any
time prior to Syndication, Lloyds Bank being unable to provide the
required quotation, and at any time after Syndication, less than two
Reference Banks supplying the required quotations, the Facility
Agent shall promptly notify each of the other Parties.
10.2 If the requested Advances were to be denominated:
10.2.1 in an Alternative Currency, such Advances shall not be made;
or
10.2.2 in Dollars, the requested Advances will, subject to the terms
and conditions of this Agreement, be made by the Banks, have
a Term of one month and bear interest during their Term at
the rate determined by the Facility Agent to be the aggregate
of the Margin plus the rate determined by each Bank before
the Repayment Date of their Advance to be the rate which
expresses (as a percentage rate per annum) the cost to that
Bank of funding its Advance from whatever source it may
select (acting reasonably).
10.3 If the Facility Agent requires, within three Business Days of the
Facility Agent giving a notice under clause 10.1, the Facility Agent
and the Original Borrower will enter into negotiations with a view
to agreeing a substitute basis for determining the rate of interest
which may be applicable to any future Advances. Any substitute basis
that is agreed shall be confirmed in writing, be deemed to be a term
of this Agreement, take
24
effect in accordance with its terms and be binding on the Parties.
The Facility Agent confirms to the Banks that it will not agree to
any substitute basis without the prior consent of each Bank.
11. REPAYMENT OF ADVANCES
The Borrower shall repay each Advance made to it in full on its Repayment
Date. Subject to the terms and conditions of this Agreement, any amounts
repaid may, during the Availability Period, be reborrowed. All outstanding
Advances, together with accrued interest thereon and any other amounts
payable to the Banks under this Agreement shall be repaid in full on the
Final Repayment Date.
12. NETTING OF PAYMENTS
If the Repayment Date of a Advance made to a Borrower coincides with the
Drawdown Date of another Advance being made to that Borrower and the
Advances are denominated in the same currency, the Facility Agent may
apply any amount which would otherwise have been paid to, or credited to,
that Borrower's account under this Facility Agreement in or towards the
discharge of amounts payable by that Borrower under this Agreement on that
date
13. PARTIAL PAYMENTS
If the Facility Agent receives a payment which is insufficient to
discharge all the amounts due and payable by an Obligor under this
Agreement on the day such payment is received, the Facility Agent shall
apply that payment in or towards the discharge of the Obligor's
obligations under this Agreement in the following order:
13.1 first (and at its discretion), in or towards payment of any unpaid
costs and expenses of the Facility Agent incurred by it in
connection with this Agreement;
13.2 secondly, in or towards payment (pro rata) of any unpaid fees under
clause 28 (Fees);
13.3 thirdly, in or towards payment (pro rata) of any unpaid interest
(including default interest);
13.4 fourthly, in or towards repayment (pro rata) of any unpaid
principal; and
13.5 fifthly, in or towards payment of any other amounts due and payable
to the relevant Obligor under this Agreement.
14. CANCELLATION AND PREPAYMENT
14.1 Cancellation of Total Commitments
The Original Borrower may, by giving to the Facility Agent not less
than 5 Business Days' prior notice to that effect, cancel the whole
or any part (being a minimum amount of $10,000,000 and an integral
multiple of $5,000,000) of the Total Commitments. Any such
cancellation shall reduce the Commitment of each Bank pro rata.
14.2 Cancellation and prepayment of a Bank's Commitment and repayment of
its Advances
14.2.1 If any Obligor is required to make any additional payment to
a Bank pursuant to
25
clause 16 (Taxes) or any Bank claims indemnification under
clause 16 (Taxes) or clause 17 (Increased Costs), the Original
Borrower may, provided that the relevant circumstances are
still continuing, serve a notice on that Bank, through the
Facility Agent, whereupon that Bank's Commitment shall
immediately be cancelled.
14.2.2 Five Business Days after the date of service of any such
notice, (unless the Original Borrower had stated in such
notice that the provisions of this paragraph (b) would not
apply) each Borrower shall repay each outstanding Advance made
to it by that Bank together with accrued interest thereon and
any other amounts payable by that Borrower to that Bank under
this Agreement, including any amount payable in respect of
breakage costs on the amount prepaid pursuant to clause 27.1.2
(Broken funding).
14.3 Voluntary prepayment
Any Borrower may, on giving not less than 5 Business Days' prior
notice to the Facility Agent and subject to clause 27.1.2 (Broken
funding), prepay the Advances or any part thereof such that the
Dollar Amount so prepaid is in a minimum amount of $10,000,000 and
an integral multiple of $5,000,000. Any amount so notified shall be
due and payable on expiry of such notice together with interest
accrued thereon and any other sums then due and payable under this
Agreement.
14.4 Notices of prepayment/cancellation
14.4.1 Any notice of prepayment and/or cancellation delivered under
this Agreement is irrevocable.
14.4.2 Each notice shall specify the date upon which such
cancellation and/or prepayment is to be made and the amount of
such cancellation and/or prepayment.
14.5 Notification of Bank(s)
The Facility Agent shall notify the relevant Bank(s) promptly upon
receipt of any notice of cancellation and/or prepayment.
14.6 Only method
No payment, prepayment or cancellation (with respect to this
Agreement) is permitted other than in accordance with the provisions
of this Agreement.
15. PAYMENTS
15.1 To Facility Agent
On each date that a Party (other than the Facility Agent) is obliged
to make a payment under this Agreement, that Party shall make the
same available to the Facility Agent:
15.1.1 if the amount is denominated in Dollars by payment in Dollars
and in same day funds (or in such funds as may be customary in
New York City for the settlement in New York City of
international banking transactions in Dollars) to the Facility
Agent at Bank of New York, 1 Wall Street, New York, NY, USA,
26
Account 890 0047 003 in the name of Lloyds Bank Plc, Loans
Administration, reference UNM or such other account as the
Facility Agent may have specified for this purpose;
15.1.2 if the amount is denominated in an Alternative Currency
(other than Sterling), by payment in such Alternative Currency
and in immediately available, freely transferable, cleared
funds to such account with such bank in the principal
financial centre of the country of such Alternative Currency
(or in the case of euros, euro units or national currency
units in the principal financial centre of a participating
member state or London) as the Facility Agent shall have
specified for this purpose; or
15.1.3 if the amount is denominated in Sterling, by payment in
Sterling in immediately available, freely transferable,
cleared funds, to the Facility Agent's account number 0000000
with Lloyds Bank Plc, Treasury Division, Xxxxxxxx Xxxxx, XX
Xxx 000, 00 Xxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX (Quoting CHAPS
Sort Code 30-15-57) or such other account as the Facility
Agent may have specified for this purpose.
15.2 Distribution by Facility Agent
15.2.1 If the Facility Agent receives a payment for the account of
another Party in connection with this Agreement, the Facility
Agent shall make that payment available to such Party for
value the same day by transfer to such account of such Party
with such bank in the principal financial centre of the
country of the currency of such payment as that Party shall
have previously notified to the Facility Agent in writing for
this purpose.
15.2.2 If a sum is paid under this Agreement to the Facility Agent
for the account of another Party, the Facility Agent shall not
be obliged to pay that amount to that Party until the Facility
Agent has established, to its satisfaction, that it has
actually received and retained that sum.
15.2.3 The Facility Agent may, but shall not be obliged to, assume
that it has received and retained all amounts payable to it
under this Agreement on the due date and, in reliance on that
assumption, make available to the relevant Party a
corresponding amount. If, however, such a sum has not been
received and retained by the Facility Agent the relevant Party
shall, on demand by the Facility Agent promptly refund the
corresponding amount to the Facility Agent together with
interest on that amount from (and including) the date of
payment by the Facility Agent to (but excluding) the date such
amount is repaid to the Facility Agent in full, at a rate
calculated by the Facility Agent so as to reflect its cost of
funding such payment.
15.3 Currency of payment
15.3.1 A repayment and/or prepayment of an Advance shall be made in
the currency in which such Advance is denominated.
15.3.2 Each payment of interest shall be made in the currency in
which the sum in respect of which such interest is payable is
denominated.
27
15.3.3 Any payment made in respect of costs, expenses or Taxes shall
be made in the currency in which it is incurred and each
payment made pursuant to clause 16 (Taxes) or clause 17
(Increased costs) shall be made in the currency in which it
was incurred or as specified by the Party making the claim.
15.3.4 Any other amount payable under this Agreement is, except as
otherwise provided in this Agreement, payable in Dollars.
15.4 Set-off and counterclaim
15.4.1 All payments required to be made by any Obligor under this
Agreement shall be made without reference to any set-off or
counterclaim and shall be made free and clear of and without
any deduction for or on account of any set-off or
counterclaim.
15.4.2 Each Obligor authorises each Bank after the occurrence of an
Event of Default and whilst the same is continuing to apply
any credit balance to which that Obligor is entitled on any
account of that Obligor with that Bank in satisfaction of any
sum due and payable from that Obligor to that Bank under this
Agreement but unpaid. Each Bank is, accordingly, authorised to
purchase with any credit balance of any such account such
other currencies as may be necessary to effect such
application. No Bank shall be obliged to exercise any right
given to it by this clause 15.4.2.
15.4.3 Coming into Effect of Provisions
If and to the extent that the provision of clause 15.4.4 to
15.4.7 relates to any state (or the currency of such state)
which is not be a participating member state such provisions
shall come into effect in relation to such state (and the
currency of such state) on and with effect from the date on
which such state becomes a participating member state.
15.4.4 Redenomination and Alternative Currencies
Each obligation under this Agreement or a party to this
Agreement which has been denominated in a national currency
unit shall be redenominated into the euro unit in accordance
with EMU legislation provided that, if and to the extent that
any EMU legislation provides that an amount denominated either
in the euro or in the national currency unit of a
participating member state and payable within that
participating member state by crediting an account of the
creditor can be paid by the debtor either in the euro unit or
in that national currency unit, each party to this Agreement
shall be entitled to pay or repay any such amount either in
the euro unit or in such national currency unit.
15.4.5 Payments by the Facility Agent
In relation to the payment of any amount denominated in the
euro or in a national currency unit, the Facility Agent shall
not be liable to the Obligor or any Bank in any way whatsoever
for any delay, or the consequences resulting in any delay, in
the crediting to any account of any amount required by this
Agreement be paid by the Facility Agent if the Facility Agent
shall have
28
taken all relevant steps to achieve, on the date required by
this Agreement, the payment of such amount immediately
available, freely transferable, cleared funds (in the euro
unit or, as the case may be, in a national currency unit) to
the amount in the principal financial centre in the
participating member state which the relevant Obligor or, as
the case may be, any Banks shall have specified for such
purpose, In this clause 11.13, "all relevant steps" means all
such steps as may be prescribed from time to time by the
regulations or operating procedures of such clearing or
settlement systems as the Agent may from time to time
determine for the purpose of clearing or settling payments of
the euro.
15.4.6 Basis of accrual
If, in relation to the currency of any state which becomes a
participating member state, the basis of accrual of interest
or commitment commission expressed in this Agreement in
respect of that currency shall be inconsistent with any
convention or practice in the London Interbank Market for the
basis of accrual of interest or commitment commission in
respect of the euro, such expressed basis shall be replaced by
such convention or practice with effect on the date on which
such state becomes a participating member state provided that,
if any Advance in the currency of such state, is outstanding
immediately prior to such date, such replacement shall take
effect, with respect to such Advance, at the end of the then
current Term.
15.4.7 Rounding and other consequential changes
Without prejudice and in addition to any method of conversion
or rounding prescribed by any EMU legislation and without
prejudice to the respective liabilities for indebtedness of
the Obligors to the Banks and the Banks to the Obligors under
or pursuant to this Agreement:
(i) each reference in this Agreement to a minimum amount (or
an integral multiple thereof) in a national currency
unit to be paid to or by the Facility Agent shall be
replaced by a reference to such reasonable, comparable
and convenient amount (or an integral multiple thereof)
in the euro unit as the Facility Agent may from time to
time specify; and
(ii) save as expressly provided in this Clause 15.4.7 each
provision of this Agreement shall be subject to such
reasonable changes of construction as the Facility Agent
may from time to time specify to be necessary or
appropriate to reflect the introduction of or changeover
to the euro in a member state of the EMU which becomes a
participating member state.
16. TAXES
16.1 Payment of Taxes
16.1.1 All payments to be made by the Obligors under or in respect
of this Agreement shall be made free and clear of and without
any deduction or withholding of Tax.
29
16.1.2 If an Obligor is required to make any deduction or
withholding of Tax, that Obligor shall:
16.1.2.1 promptly notify the Facility Agent of the amount
which it is required to deduct or withhold; and
16.1.2.2 pay such additional amounts as are necessary to
ensure that the relevant Finance Party receives and
retains a net amount equal to the full amount which it
would have received had the payment not been made
subject to a deduction or a withholding.
16.2 Tax indemnity
Without prejudice to the provisions of clause 16.1 (Payment of
Taxes), if any Finance Party, or any other Person through which a
payment relating to this Agreement is made, is required to make any
payment on account of Tax (other than Tax on the net income of its
Facility Office imposed by the Tax authorities in the jurisdiction
in which it is incorporated or in which its Facility Office is
located or, in respect of any Person, on its net income imposed by
the Tax authorities in the jurisdiction in which it is incorporated
or through which payment is made) on or in relation to any sum
received or receivable under this Agreement by that Finance Party,
or any other Person through which such a payment is made, the
relevant Obligor shall, upon demand by the Facility Agent, indemnify
the relevant Finance Party against such payment, together with any
interest, penalties and expenses payable or incurred in connection
therewith (otherwise than any such interest, penalties or expense
payable or incurred by virtue of unreasonable delay on the part of
the relevant Finance Party in remitting to a tax authority an amount
paid to it by an Obligor or in notifying the relevant Obligor of any
assessment or other notification of an amount payable received from
a tax authority).
16.3 Notification of claims
Without prejudice to clause 16.2 (Tax indemnity), if the relevant
Obligor so requests, the relevant Finance Party shall notify the
relevant Obligor of the reason for making a claim under clause 16.2
(Tax indemnity) and provide, in reasonable detail, the calculation
and cause of the amount being claimed. This clause 16.3
(Notification of claims) shall not oblige any Finance Party to
disclose any information relating to the organisation of its
business or tax affairs or how the amount requested was calculated
if it considers, in its sole opinion, that such information is
confidential.
16.4 Tax receipts
If, as a result of a payment being made by or on behalf of an
Obligor under this Agreement, that Obligor is required to pay any
Tax, the Obligor shall pay such Tax in full to the relevant
authority within the time allowed for such payment under applicable
law. The Obligor shall, within 30 days of the payment being made,
deliver to the Facility Agent an original (or a Certified Copy) of
any receipt issued by the relevant authority evidencing that payment
in full has been received by the relevant authority.
16.5 Tax credits
30
16.5.1 If an Obligor makes a payment under clause 16.1 (Payment of
Taxes) or clause 16.2 (Tax indemnity) for the account of any
Finance Party and that Finance Party, in its sole opinion,
determines that it has received or been granted a credit
against or relief from or remission for, or repayment of, any
Tax paid or payable by that Obligor in respect of, or
calculated by reference to, the deduction or withholding
giving rise to such payment, such Finance Party shall, to the
extent that it can do so without prejudice to the retention of
the amount of such credit, relief, remission or repayment, pay
to that Obligor (through the Facility Agent) such amount as
such Finance Party shall, in its sole opinion, have determined
to be attributable to such deduction or withholding.
16.5.2 Any payment made by a Finance Party under this clause 16.5
(Tax credits) shall be conclusive evidence of the amount due
to the relevant Obligor under this clause 16.5 (Tax credits)
and shall be accepted by that Obligor in full and final
settlement of its rights of reimbursement under this Agreement
in respect of the relevant deduction or withholding. Nothing
in this clause 16.5 (Tax credits) shall interfere with the
right of each Finance Party to arrange its affairs (including
its Tax affairs) in such manner as it thinks fit and, in
particular, no Finance Party shall be under any obligation to
claim any credit, relief, remission or repayment from or
against its corporate profits or similar Tax liabilities in
respect of the amount of such deduction or withholding in
priority to any other claims, reliefs, credits or deductions
available to it.
16.5.3 No Finance Party will be obliged to disclose any information
or computations relating to its Tax affairs to the Obligors or
to any other Person.
16.6 Qualifying Banks
16.6.1 No Obligor shall be required to pay an additional amount
under this clause 16 (Taxes) if the relevant Finance Party
either:
16.6.1.1 is not at the date it becomes a party to this
Agreement a Qualifying Bank; or
16.6.1.2 ceases after the date it becomes a party to this
Agreement to be a Qualifying Bank,
and, in either case, the obligation to deduct or withhold
would not have arisen if the relevant Finance Party had been
or had not ceased to be a Qualifying Bank, unless such Finance
Party ceases to be a Qualifying Bank as a result of a change
in any applicable law, regulation, practice or concession of
any taxation authority (whether in the United Kingdom or
elsewhere).
16.6.2 Each Bank warrants to each Obligor that as at the date of
this Agreement and, as at the date it gives its approval to a
Subsidiary Borrower not resident in the United Kingdom,
acceding to this Agreement in such capacity pursuant to clause
26.1 (Delivery of Subsidiary Borrower's Accession Memorandum)
(or, in the case of a New Bank, at the date of the relevant
Novation Certificate or, in the case of an assignee of a Bank,
as at the date on which the assignment to such assignee
becomes effective) it is a Qualifying Bank. Each Bank agrees
to notify the Facility Agent and the Borrower promptly should
it cease to be a Qualifying Bank.
31
16.7 Double tax-treaties
Each Bank and the Facility Agent or the relevant Agent or the
relevant Obligor (as the case may be) shall as soon as reasonably
practicable after the date hereof or upon becoming a party to this
Agreement or (as the case may be) after the date a Subsidiary
Borrower not incorporated in the United Kingdom accedes to this
Agreement submit the form or forms to the appropriate Revenue
authorities as may reasonably be necessary in order to comply with
the requirements of any applicable law or Applicable Treaties in
relation to the payment of any interest and commitment commission
hereunder to such Bank or the Facility Agent free (or subject to any
applicable reduced rate) of deduction or withholding of or on
account of any Tax which would otherwise be applicable and, if such
Bank or the Facility Agent fails to comply with this clause 16.7
(Double tax-treaties) the relevant Obligor shall not have any
obligation to pay any increased amount required by clause 16.1
(Payment of Taxes) or clause 16.2 (Tax Indemnity) if and to the
extent that it would not have been required to make any deduction or
withholding (or would only have been required to make any such
deduction or withholding at any applicable reduced rate) of or on
account of any Tax had such Bank or the Facility Agent complied with
this clause 16.7 (Double tax-treaties).
16.8 Banks' representation
Each Bank confirms in favour of the Facility Agent (on the date
hereof, or, in the case of a New Bank, on the date on which the
relevant transfer becomes effective) that either:
16.8.1 it is not resident for tax purposes in the United Kingdom and
is beneficially entitled to the Advances it makes under this
Agreement and the interest thereon; or
16.8.2 it is a bank falling within the definition of "bank" for the
purposes of Section 840A of the Income and Corporation Taxes
Act 1988 and is beneficially entitled to the Advances it makes
under this Agreement and the interest thereon;
and each Bank in favour of the Facility Agent agrees to notify the
Facility Agent if there is any change in its position from that set
out above.
17. INCREASED COSTS
17.1 Indemnity for increased costs
If as a result of:
17.1.1 the introduction or variation of any law or any change in the
administration or interpretation of any law; and/or
17.1.2 compliance with any request from or requirement of any
central bank or other fiscal, monetary or other authority made
after the date hereof (including any request or requirement
which affects the manner in which a Bank or any Holding
Company of such Bank is required to, or does, maintain capital
resources having regard to such Bank's obligations under this
Agreement and to amounts which are owing to it under this
Agreement):
32
(i) such Bank, or any Holding Company of such Bank, incurs a
cost (being a cost which it would not otherwise have
incurred) as a result of it having entered into and/or
it performing its obligations under this Agreement
and/or it assuming or maintaining its Commitment under
this Agreement and/or it making one or more Advances
under this Agreement; or
(ii) such Bank, or any Holding Company of such Bank, is
unable to obtain the rate of return on its overall
capital which it would have been able to obtain but for
it having entered into and/or assuming or maintaining a
Commitment under this Agreement; or
(iii) there is any increase in the cost to such Bank, or any
Holding Company of such Bank, of funding or maintaining
all or any of the assets or liabilities comprised in a
class of assets or liabilities formed by, or including,
those referable to this Agreement; or
(iv) such Bank, or any Holding Company of such Bank, becomes
liable to make any payment on account of Tax (other than
Tax on its overall net income) or otherwise on or
calculated by reference to the amount of Advances made
or to be made by it under this Agreement and/or any sum
received or receivable by it under this Agreement,
then the Original Borrower shall, from time to time on demand
by the Facility Agent, pay to the Agent for the account of
that Bank, amounts sufficient to indemnify that Bank against,
as the case may be, (i) such costs, (ii) such reduction, (iii)
such increased costs (or such proportion of such increased
costs as is, in the opinion of that Bank, attributable to its
funding, maintaining or assuming assets or liabilities
referable to this Agreement) or (iv) such liability.
17.2 Exceptions
No Bank shall be entitled to make any claim under clause 17.1
(Indemnity for increased costs) which:
17.2.1 is compensated for by the operation of clause 16 (Taxes); or
17.2.2 is compensated for by Mandatory Liquid Asset Costs; or
17.2.3 is attributable to any change in the rate of Tax on the
overall net income of such Bank or its Holding Company; or
17.2.4 arises directly as a result of a breach by such Bank of any
regulation, guideline or requirement of any central bank or
other fiscal, monetary or other authority (whether or not
having the force of law); or
17.2.5 arises directly as a result of the implementation by any
authority after the date of this Agreement of any of the
matters set out in the Basle Paper; or
17.2.6 is attributable to the introduction of the euro (other than
an increased cost which the Facility Agent and the Original
Borrower reasonably agree is being incurred
33
generally and on a consistent basis by banks transacting euro
business in the London interbank market).
17.3 Notification by Bank
Any Bank proposing to make a claim pursuant to clause 17.1
(Indemnity for increased costs) shall notify the Original Borrower
(through the Facility Agent), setting out, in reasonable detail, the
calculation and cause of the amounts claimed. No Bank shall be
required to disclose any information relating to the organisation of
its affairs which it considers to be confidential.
18. ILLEGALITY
If, as a result of the introduction, imposition or variation of any law,
regulation or regulatory requirement of any authority (including any
fiscal or monetary authority) or any change in the interpretation or
application thereof after the date hereof, it is unlawful for any Bank to
make, maintain or fund any Advance, or be a party to this Agreement then,
unless such illegality is avoided in accordance with clause 19
(Mitigation):
18.1 the relevant Bank shall not be obliged to make any Advances and its
Commitment shall be cancelled and reduced to zero; and
18.2 the Borrowers shall, on the latest date by which the relevant law
requires that the same be repaid and/or paid, (as the case may be)
repay each outstanding Advance, together with accrued interest
thereon and any other amounts owing to that Bank (or its Affiliate
in such capacity).
19. MITIGATION
19.1 If, in respect of any Bank, circumstances arise which would, or on
the giving of notice would, result in:
19.1.1 an increase in the amount of any payment to be made to it
under clause 16.1 (Payment of Taxes); or
19.1.2 any claim for indemnification being made under clause 16.2
(Tax indemnity) or under clause 17.1 (Indemnity for increased
costs); or
19.1.3 any prepayment or cancellation under clause 18 (Illegality),
then, without limiting the obligations of any of the Obligors under
this Agreement, and without prejudice to the terms and conditions of
those clauses, that Bank will (provided that it considers that it is
reasonably practicable for it to do so), promptly upon becoming
aware of the same, notify the Facility Agent and, in consultation
with the Facility Agent and the Obligor's Agent , take steps to
mitigate the effects of such circumstances, including, if
appropriate, changing its Facility Office and/or transferring its
rights and obligations under this Agreement to another branch or
financial institution acceptable to the Obligor's Agent, provided
that:
19.1.4 no Bank shall be obliged to take any steps under this clause
19 (Mitigation) if it considers, in its bona fide opinion,
that to do so might have an adverse effect on its business,
operation or financial condition or it considers such steps to
34
be unreasonable; and
19.1.5 such Bank shall, notwithstanding the foregoing, be under no
obligation to achieve any particular result and shall incur no
liability to any Obligor by virtue of such steps resulting in
less than complete mitigation.
19.2 In the event that any Obligor shall have received a certificate from
the Facility Agent pursuant to clause 18 (Illegality) demand shall
have been made on the Original Borrower by the Facility Agent
pursuant to clause 17 (Increased Costs) or any Borrower shall have
been required to make a deduction or withholding pursuant to clause
16.1 (Payment of Taxes) or have been notified by the Facility Agent
pursuant to clause 16.3 (Notification of Claims) (the "Trigger
Events"), the Obligor's Agent may (within thirty days of receipt
thereof) notify the Facility Agent that it wishes to replace the
relevant Bank in respect of which such certificate, demand,
deduction, withholding or, as the case may be, notification relates,
with a successor bank which must be a Qualifying Bank ("Successor
Bank"). The Obligor's Agent shall enter into negotiations with the
Facility Agent to determine a Successor Bank (but for the avoidance
of doubt the Facility Agent shall be under no obligation to find a
Successor Bank) provided that in the event that the Obligor's Agent
and the Facility Agent shall not agree a Successor Bank, the
Obligor's Agent may nominate a Successor Bank which shall be a bank
of international repute.
19.3 Upon determination of the identity of the Successor Bank, the
Facility Agent shall promptly notify the Bank in question of such
identity (which shall, in any event, be no later than forty days
after the relevant Trigger Event) and, provided the Bank in question
is able to do so, the Bank in question shall as soon as reasonably
practical arrange to transfer its Commitment hereunder (together
with all outstandings hereunder valued at par and accrued interest
thereon) to the Successor Bank in accordance with the provisions of
clause 31 (Transfers) at such time as may be agreed between the
parties hereto.
20. REPRESENTATIONS
20.1 Continuing representations
The Original Borrower represents in respect of itself, each Obligor
and each Principal Subsidiary (provided that in respect of any
company which becomes a Group Member after the date hereof and which
is not an Obligor such representation shall not take effect in
relation to such Group Member or any of its Subsidiaries until the
earlier of the date being six months after the date on which such
company becomes a Group Member and the date of delivery by such
company of a Subsidiary Borrower's Accession Memorandum) that:
20.1.1 Body corporate: each such Group Member is a corporation duly
organised and validly existing under applicable law;
20.1.2 Power and authority: each such Group Member has authority,
and has completed all proceedings and obtained all approvals
and consents necessary, to execute, deliver and perform the
Finance Documents to which it is a party, and the transactions
contemplated thereby;
20.1.3 Legal and valid: the obligations expressed to be assumed by
each Group Member in
35
the Finance Documents to which it is a party are legal and
valid obligations binding on it in accordance with the terms
thereof except that the enforceability of each Finance
Document may be limited by insolvency or other similar laws of
general application affecting the enforcement of creditors'
rights generally and by a court in relation to equitable
remedies;
20.1.4 Litigation: except as previously disclosed to the Facility
Agent in writing, no action, suit or proceeding which would be
reasonably expected to succeed, and if successful, which would
be reasonably likely by itself or together with any other such
proceedings or claims to have a Material Adverse Effect has
been started or, to its knowledge, threatened (disregarding
for this purpose any such action, suit or proceedings where
the alleged liability of the relevant Group Member is fully
covered by an insurance policy issued by a Person who is not a
Group Member);
20.1.5 Contravention: its execution, delivery and performance of
those Finance Documents to which such Group Member is a party
and the transactions contemplated thereby will not contravene
or constitute a default under or result in any Security
Interest upon assets of any Group Member pursuant to any
applicable law or regulation, any constitutive document of any
Group Member, or any contract, agreement, judgement, order,
decree or other instruction binding upon or affecting any
Group Member; and
20.1.6 Accuracy of Information:
20.1.6.1 each set of financial statements delivered by and
pursuant to clauses 21.1.1 and 21.1.2 (Provision of
information) was prepared in accordance with generally
accepted accounting principles and practices in the
jurisdiction of incorporation of the Original Borrower
or, as the case may be, of each other Obligor and fairly
represents the financial condition of the Group or, as
the case may be, of such Obligor as at the end of the
period to which those financial statements relate and of
the results of its operations during such period; and
20.1.6.2 each Compliance Certificate delivered by the Original
Borrower pursuant to clause 21.1.3 (Provision of
information) shall be true and accurate in every
material respect as at the date on which such
certificate is given.
20.2 Other representations
The Original Borrower further represents in respect of itself, each
Obligor and each Principal Subsidiary as at the date of this
Agreement as follows:
20.2.1 No conflict: no Group Member is in breach of or in default
under any agreement to which it is a party or which is binding
on it or any of its assets to an extent or in a manner which
would be reasonably likely to have a Material Adverse Effect;
20.2.2 Written information: (a) all written statements of fact
supplied by any of the Obligors in connection with this
Agreement relating to the Group are or will
36
be true in all respects material to the Facility and (b) it is
not aware of any material facts or circumstances that have not
been disclosed to the Facility Agent and the Banks and which
would, if disclosed, be reasonably likely to affect the
decision of a person considering whether or not to provide
finance to the Original Borrower and its Subsidiaries;
20.2.3 Financial Condition: there has been no material adverse
change in the financial condition of the Group taken as a
whole since 31st December 1998, being the date of the last
audited financial statements of the Original Borrower
published before the date of this Agreement;
20.2.4 Security Interests: no Security Interest, other than a
Permitted Security Interest, exists over all or any of the
present or future revenues or assets of the Original Borrower
or any of its Subsidiaries;
20.2.5 Withholding Tax: there is no deduction or withholding for or
on account of any Tax required to be made from any payment to
be made by it hereunder to a Qualifying Bank;
20.2.6 Filings: it is not necessary that any of the Finance
Documents be filed, recorded or enrolled with any court or
other authority in the United Kingdom or any other
jurisdiction in which an Obligor is incorporated or that any
stamp, registration or similar tax be paid on or in relation
to any of the Finance Documents; and
20.2.7 Licences: it has, in the conduct of its business complied
with the provisions of all applicable laws and obtained (and
maintained in full force and effect) all licences, consents,
approvals and authorisations required for the conduct of its
business and has complied with all conditions thereof where
the failure to comply with such provisions or the failure to
obtain and maintain such licences, consents, approvals or
authorisations would be reasonably likely to have a Material
Adverse Effect.
20.3 Repetition of representations
Each of the representations set out in clause 20.1 (Continuing
representations) shall be deemed to be repeated as at the date of
each Drawdown Request and each Drawdown Date by reference to the
then existing circumstances.
21. FINANCIAL INFORMATION
21.1 Provision of information
The Original Borrower shall:
21.1.1 as soon as the same become available, but in any event within
180 days after the end of each of its Financial Years, deliver
to the Facility Agent (in sufficient copies for each of the
Finance Parties);
21.1.1.1 its audited consolidated financial statements for
such Financial Year; and
21.1.1.2 the audited (or if it is not required by any
applicable law, regulation or
37
accounting standard or principle to prepare audited
accounts, the unaudited) unconsolidated financial
statements of each other Obligor for such Financial
Year;
21.1.2 as soon as the same become available, but in any event within
120 days after the end of the first half of each of its
Financial Years, deliver to the Facility Agent (in sufficient
copies for each of the Finance Parties) its unaudited
consolidated interim financial statements for such period
signed by a director of the Original Borrower;
21.1.3 together with the accounts specified in clauses 21.1.1.1 and
21.1.1.2 above, deliver to the Facility Agent a Compliance
Certificate signed by a director of the Obligor's Agent
setting out in reasonable detail, computations establishing
compliance with clause 22 (Financial condition of the Group),
and, in the case of each Compliance Certificate delivered
together with the accounts specified in clause 21.1.1.1 above,
setting out in reasonable detail computations regarding the
determination of the Adjusted Share Capital and Reserves; and
21.1.4 from time to time on the request of the Facility Agent,
furnish the Facility Agent with such other information about
the business and financial condition of the Group as the
Facility Agent may reasonably require.
21.2 GAAP
The Original Borrower shall ensure that each set of financial
statements delivered by it pursuant to clause 21.1 is prepared in
accordance with generally accepted accounting principles and
practices in the jurisdiction of incorporation of the relevant Group
Member.
22. FINANCIAL CONDITION OF THE GROUP
22.1 Ratio
The Original Borrower shall procure that the ratio of Consolidated
Profit Before Interest and Tax for each period of twelve months
ending at the end of any Financial Year and at the end of any
Financial Half Year to Consolidated Net Finance Charges for the same
period shall not be less than 3.0:1.0.
22.2 Financial definitions
For the purposes of this clause 22 (Financial condition of the
Group):
"Consolidated Net Finance Charges" means, for any period, subject to
clause 22.3.3 (Different basis), all interest expense and all other
continuing regular or periodic costs, charges and expenses in the
nature of interest (including, for the avoidance of doubt but
without limitation, any acceptance commission relating to any bills
of exchange) incurred by the Group during such period minus all
interest income and income in the nature of interest of the Group
received or receivable during such period;
"Consolidated Profit Before Interest and Tax" means, in relation to
any period,
38
the sum of (a) Consolidated Profit Before Tax of the Group plus (b)
Consolidated Net Finance Charges for that period (to the extent
deducted in determining Consolidated Profit Before Tax);
"Consolidated Profit Before Tax" means, for any period, the gross
revenues of the Group less all expenses and other proper charges,
but excluding in any event:
22.2.1 Exceptional Items;
22.2.2 net earnings and losses of any Subsidiary of the Original
Borrower accrued prior to the date it became such a
Subsidiary;
22.2.3 all income taxes paid or accrued by the members of the Group;
22.2.4 earnings or charges resulting from any reappraisal,
revaluation, write-up or write-down of assets (other than fees
and expenses of such reappraisal or revaluation); and
22.2.5 any amounts relating to the amortisation of acquired goodwill
and intangible assets in accordance with accounting standard
FRS 10, Goodwill and Intangible Assets.
"Exceptional Items" means for any period all items of income or
expense reported in the financial statements as exceptional in
accordance with Financial Reporting Standard 3, (including, for the
avoidance of doubt,
(i) any exceptional profits or losses on the sale or termination
of an operation,
(ii) exceptional costs of a fundamental reorganisation or
restructuring, and
(iii) any exceptional profits or losses on a disposal of fixed
assets and extraordinary items);
"Financial Half Year" means any financial half year of the Group;
and
"Financial Year" means any financial year of the Group.
Any amount outstanding in a currency (other than Sterling) is to be
taken into account at its Sterling equivalent calculated on the
basis of the rate of exchange used for such purpose in the relevant
accounts.
22.3 Different basis
22.3.1 Subject to paragraphs 22.3.2 and 22.3.3 below, all the terms
used in clause 22.1 (Ratio) (including, for the avoidance of
doubt, intangible assets and the inclusion of intangible asset
in any relevant term) are to be calculated or treated
consistently in accordance with the accounting principles
applied in connection with the Initial Financial Statements.
22.3.2 If any financial statements delivered to the Facility Agent
pursuant to clauses 21.1.1 or 21.1.2 (Provision of
information) are prepared on a different basis from that used
in the preparation of the Initial Financial Statements and in
the
39
reasonable opinion of the Facility Agent (having regard to
accounting principles applicable at the relevant time), this
alters the interpretation of any expressions used in clause
22.2 (Financial definitions) in any material respect, then:
22.3.2.1 the Original Borrower and the Facility Agent shall,
at the Facility Agent's request, negotiate in good faith
with a view to agreeing any amendments to clause 22.2
(Financial definitions) and/or the definitions used
therein as may be necessary to give the Banks
protection, which protection, considered overall, is at
least equivalent to that granted to the Banks as at the
date hereof; and
22.3.2.2 if no such agreement is reached within 30 days of the
Facility Agent's request, the Original Borrower shall
procure at the request of the Facility Agent that the
Original Borrower's auditors determine any amendments to
clause 22.2 (Financial definitions) and/or the
definitions used therein which the auditors consider
appropriate to grant to the Banks protection which
protection considered overall, is at least equivalent to
that granted to the Banks as at the date hereof, such
determination of the auditors, in the absence of
manifest error, to be conclusive. Any costs and expenses
of the auditors in making the above determination shall
be for the account of the Original Borrower; and
22.3.3 If any financial statements delivered to the Facility Agent
pursuant to clauses 21.1.1 or 21.1.2 (Provision of
information) have been prepared in accordance with accounting
standard FRS9 (Associates and joint ventures) then, for the
purposes of calculating the ratio of Consolidated Profit
Before Interest and Tax to Consolidated Net Finance Charges
referred to in clause 22.1 (Ratio) above, those financial
statements shall be adjusted so that they reflect the
financial position of the Group as it would have been shown in
those financial statements if accounting standard FRS9
(Associates and joint ventures) had not been applied in their
preparation.
23. COVENANTS
23.1 Positive covenants
The Original Borrower shall:
23.1.1 Default: promptly inform the Facility Agent of the occurrence
of any continuing Event of Default or Potential Event of
Default (which has not been remedied or waived) of which it is
aware;
23.1.2 Litigation: promptly inform the Facility Agent of any claims,
proceedings or disputes against, or to the knowledge of the
Original Borrower, threatened or affecting the Original
Borrower or the Group which, if adversely determined, would
have a Material Adverse Effect;
23.1.3 Compliance with contracts, etc: comply and shall procure that
each Principal Subsidiary shall comply with the terms of any
agreement, contract or other
40
instrument to which it may be a party or under which it or its
assets may be bound, if non-compliance will have a Material
Adverse Effect except where contested in good faith and by
proper proceedings;
23.1.4 Pari passu: ensure that all amounts payable hereunder by any
Obligor will rank at least pari passu in priority of payment
with all other present and future unsecured indebtedness of
such Obligor, except to the extent otherwise provided by
operation of law;
23.1.5 Group structure: ensure that each Subsidiary Borrower is and
remains a subsidiary of the Borrower; and
23.1.6 Compliance with laws: shall, and shall procure that each
Group Member will:
23.1.6.1 comply with the provisions of all applicable laws in
the conduct of its business; and
23.1.6.2 obtain (and maintain in full force and effect) all
licences, consents, approvals and authorisations
required for the conduct of its business and will comply
with all conditions thereof,
where the failure to comply with such provisions or the
failure to obtain and maintain such licences, consents,
approvals or authorisations would be reasonably likely to have
a Material Adverse Effect.
23.2 Negative covenants
The Original Borrower shall ensure that neither it, nor any other
Group Member shall:
23.2.1 Negative pledge: create or permit to exist against any of its
assets now or hereafter acquired any Security Interest other
than a Permitted Security Interest; or
23.2.2 Disposals: without the consent of the Majority Banks (such
consent not to be unreasonably withheld or delayed) sell,
transfer, lease or otherwise dispose of all or a substantial
part of its assets or revenues (which shall not include cash
for this purpose) either in a single transaction or in a
series of transactions, whether related or not and whether
voluntarily or involuntarily other than by:
23.2.2.1 disposals made in the ordinary course of business of
the disposing entity; or
23.2.2.2 at a fair market value and on an arms length basis;
or
23.2.2.3 disposals made by one Group Member to another Group
Member; or
23.2.2.4 without prejudice to clause 23.2.2.1, 23.2.2.2 and
23.2.2.3 above, disposals of assets in any Financial
Year which together generated in the preceding Financial
Year profit before interest and tax for the Group not
exceeding 25% of Consolidated Profit Before Interest and
Tax for such preceding Financial Year. Where the asset
disposed of was not owned by any Group Member for the
41
whole of the preceding Financial Year, or was not owned
by any Group Member during the preceding Financial Year,
the profit before interest and tax in respect thereof
shall be computed by reference to the annual profit
before interest and tax such asset could reasonably be
taken to generate (as deployed by the relevant Group
Member) based on generally accepted accounting
principles and the Consolidated Profit Before Interest
and Tax shall be adjusted to reflect inclusion of such
asset for the relevant Financial Year. "Financial Year"
and "Consolidated Profit Before Interest and Tax" have
the respective meanings given to them by clause 22.2
(Financial definitions). The Original Borrower shall if
so requested by the Facility Agent deliver to the
Facility Agent a certificate signed by a director of the
Original Borrower containing computations in reasonable
detail and any other information reasonably required to
determine whether or not any particular disposal meets
the requirements of this exception.
24. EVENTS OF DEFAULT
24.1 The Events of Default
If:
24.1.1 Non payment:
(i) any Obligor fails to pay any amount in respect of
principal due from it under any Finance Document on its
due date or, if that failure results solely from
technical or administrative difficulties relating to the
transfer of that amount from the relevant Obligor to the
relevant Agent, on or within three Business Days of its
due date, or
(ii) any other sum payable under any Finance Document on or
within seven Business Days of its due date; or
24.1.2 Breach of representation: any representation made by any
Obligor in the Finance Documents or in any Drawdown Request is
or proves to have been materially incorrect or misleading when
made or repeated; or
24.1.3 Breach of undertaking: any Obligor fails duly to perform or
comply with any provision of clause 22 (Financial condition of
the Group) or clause 23.2.1 (Negative pledge); or
24.1.4 Breach of other provisions: any Obligor fails duly to perform
or comply with any other provision of this Agreement and such
failure is not remedied within 30 days after the Facility
Agent has given notice thereof to the Original Borrower; or
24.1.5 Unable to pay debts: any Obligor or any Principal Subsidiary:
24.1.5.1 is unable to pay its debts as they fall due or admits
in writing its inability to pay its debts when due; or
42
24.1.5.2 (a) stops or suspends making payments (whether of
principal or interest) with respect to all or a material
part of its debts; or
(b) convenes a meeting of its creditors with a view to
making or makes any arrangement or composition with, or
any assignment for the benefit of, its or their
creditors save where the same is entered into or made
for the purpose of the solvent winding up, solvent
dissolution or solvent reconstruction, amalgamation or
re-organisation of any Principal Subsidiary (not being
an Obligor) or (with the prior written approval of the
Majority Banks) of any Obligor; or
24.1.5.3 takes any corporate action or other formal steps are
taken or legal proceedings are started for its
winding-up, dissolution or reorganisation or for the
appointment of a receiver, administrative receiver,
administrator, trustee or similar officer of it or all
or substantially all of its revenues and assets (other
than in the case of a winding-up petition or similar or
analogous insolvency proceedings presented by a third
party, where it is disputed in good faith and is
discharged within 30 days (or in the case of any Obligor
or Principal Subsidiary incorporated in any part of the
United States, 90 days) or the Majority Banks acting in
good faith agree the same is without foundation, or the
solvent winding up, solvent dissolution or solvent
reconstruction, amalgamation or reorganisation of any
Principal Subsidiary (not being an Obligor) or (with the
prior written approval of the Majority Banks) of any
Obligor); or
24.1.5.4 is the subject of distress or any form of execution
being levied or enforced upon or sued out against all or
substantially all of its business or assets which is not
discharged or stayed within 60 days of being levied,
enforced, or sued out; or
24.1.6 Analogous events: any event occurs which under the laws of
any relevant jurisdiction has an analogous effect to any of
the events referred to in clause 24.1.5 above; or
24.1.7 Cross-default: In relation to any Obligor or Principal
Subsidiary:
24.1.7.1 any other present or future Financial Indebtedness
(other than Non-Recourse Indebtedness) of any Obligor or
any Principal Subsidiary becomes due and payable prior
to its stated maturity by reason of default; or
24.1.7.2 any Financial Indebtedness (other than Non-Recourse
Indebtedness) of any Obligor or any Principal Subsidiary
is not paid when due or, as the case may be, within an
applicable grace period; or
24.1.7.3 any Security Interest securing Financial Indebtedness
(other than Non-Recourse Indebtedness) of any Obligor or
any Principal Subsidiary becomes enforceable and any
formal step is taken to enforce it;
43
provided that the aggregate amount of the relevant Financial
Indebtedness, in respect of which the relevant event mentioned
in each of paragraphs (i)-(iii) has occurred is equal to or
exceeds the higher of (pound)15,000,000 (or its equivalent in
any other currency or currencies) and one per cent. (1%) of
the Adjusted Share Capital and Reserves (or its equivalent in
any other currency or currencies) provided that, for the
purposes of this clause 24.1.7 neither any Obligor, nor any
Principal Subsidiary shall be deemed to be in default with
respect to the non-payment of such Financial Indebtedness, if
(a) it shall be contesting in good faith by appropriate means
its liability to make payment thereunder; and (b) it has been
advised by independent legal advisers of recognised standing
that it is reasonable to do so; or
24.1.8 Material adverse change: there is a material adverse change
in the business or financial condition of the Group which will
have a Material Adverse Effect; or
24.1.9 Cessation of business: save as previously approved in writing
by the Facility Agent (acting on the instructions of the
Majority Banks), the Original Borrower, any other Obligor or
any Principal Subsidiary ceases, or threatens to cease, to
carry on all or a substantial part of its business where such
cessation will have a Material Adverse Effect,
then, and in any such case and at any time thereafter, the Facility
Agent may (and, if so instructed by the Majority Banks, shall) by
written notice to the Original Borrower in that capacity and as
Obligor's Agent:
24.1.10 declare the Advances to be immediately due and payable
(whereupon the same shall become so payable together with
accrued interest thereon and any other sums then owed by any
Obligor hereunder) or declare the Advances to be due and
payable on demand of the Facility Agent; and/or
24.1.11 inform the Original Borrower that the Facility is to be
immediately cancelled and the Commitment of each Bank
thereunder is to be reduced to zero (whether or not there are
then any outstanding Advances whereupon the Facility shall be
immediately cancelled and the Commitment of each Bank).
24.2 Change of Control
If at any time any Person or group of connected Persons, which does
not at the date hereof have, or would not be held under section 416
of the Taxes Act to have at the date hereof, control of the
Borrower, acquires such control (for the purposes of this paragraph
"connected person` shall be construed in accordance with section 839
of the Taxes Act) then the Original Borrower (through the Facility
Agent) shall consult with each Bank and unless each Bank agrees
otherwise with the Original Borrower, the Commitment of such Bank
shall be reduced to zero and the Original Borrower shall procure
that each Borrower shall prepay for the account of such Bank such
Bank's Advances made to such Borrower, such reduction to take
effect, and such prepayment to be effected, on the thirtieth day
after such acquisition (or, if such day is not a Business Day, the
previous day that is).
25. GUARANTEE
44
25.1 Guarantee obligations
The Original Borrower hereby irrevocably and unconditionally:
25.1.1 guarantees to each Finance Party the due and punctual
observance and performance of all payment obligations on the
part of each Subsidiary Borrower contained in the Finance
Documents and agrees unconditionally to pay to the Facility
Agent from time to time on demand any and every sum or sums of
money which a Subsidiary Borrower shall at any time be liable
to pay to such Finance Party under or pursuant to the Finance
Documents and which shall not have been paid at the time such
demand is made; and
25.1.2 agrees as a primary obligation to indemnify each of the
Finance Parties from time to time on demand by the Facility
Agent from and against any loss incurred by such Finance Party
as a result of any of the obligations of any of the Subsidiary
Borrowers under or pursuant to any of the Finance Documents
being or becoming void, voidable, unenforceable or ineffective
as against such Subsidiary Borrower for any reason whatsoever,
whether or not known to the Facility Agent or any other
person, the amount of such loss being the amount which the
person or persons suffering it would otherwise have been
entitled to recover from such Subsidiary Borrower.
25.2 Preservation of rights
The obligations of the Original Borrower herein contained shall be
in addition to and independent of every other security which the
Facility Agent may at any time hold in respect of any obligations of
the Subsidiary Borrowers under any of the Finance Documents.
25.3 Continuing obligations
The obligations of the Original Borrower herein contained shall
constitute and be continuing obligations notwithstanding any
settlement of account or other matter or thing whatsoever, and in
particular but without limitation, shall not be considered satisfied
by an intermediate payment or satisfaction of any part of the
obligations of any of the Subsidiary Borrowers under each of the
Finance Documents and shall continue in full force and effect until
final payment in full of all amounts owing by each of the Subsidiary
Borrowers hereunder and total satisfaction of all of each of the
Subsidiary Borrowers actual and contingent obligations hereunder.
25.4 Non-discharge
Neither the obligations of the Original Borrower herein contained
nor the rights, powers and remedies conferred in respect of the
Original Borrower upon any of the Finance Parties by any of the
Finance Documents or by law shall be discharged, impaired or
otherwise affected by:
25.4.1 the winding-up, dissolution, administration or reorganisation
of any of the Subsidiary Borrowers or any other Person or any
change in its status, function, control or ownership;
25.4.2 any of the obligations of any of the Subsidiary Borrowers or
any other Person under
45
any of the Finance Documents or under any other security taken
in respect of any of its obligations thereunder being or
becoming illegal, invalid, unenforceable or ineffective in any
respect;
25.4.3 time or other indulgence being granted or agreed to be
granted to any of the Subsidiary Borrowers or any other Person
in respect of its obligations under any of the Finance
Subsidiary Documents or under any such other security;
25.4.4 any amendment to, or any variation, waiver or release of, any
obligation of any of the Subsidiary Borrowers or any other
Person under any of the Finance Documents or under any such
other security;
25.4.5 any failure to take, or fully to take, any security
contemplated hereby or otherwise agreed to be taken in respect
of any of the Subsidiary Borrowers under any of the Finance
Documents;
25.4.6 any failure to realise or fully to realise the value of, or
any release, discharge, exchange or substitution of, any
security taken in respect of any of the Subsidiary Borrowers'
obligations under any of the Finance Documents;
25.4.7 the accession of any one or more Acceding Subsidiary
Borrowers to this Agreement by means of the procedure set out
in clause 26 (Accession and Cessation of Subsidiary Borrowers)
or the utilisation of the Facility by any such Acceding
Subsidiary Borrower; or
25.4.8 any other act, event or omission which, but for this clause
25.4 (Non-discharge), might operate to discharge, impair or
otherwise affect any of the obligations of the Original
Borrower herein contained or any of the rights, powers or
remedies conferred upon the Finance Parties by this Agreement
or by law.
25.5 Insolvency
Any settlement or discharge between the Original Borrower and any of
the Finance Parties shall be conditional upon no security or payment
to the Finance Parties by any of the Subsidiary Borrowers or any
other Person on behalf of such Subsidiary Borrower being avoided or
reduced by virtue of any provisions or enactments relating to
bankruptcy, insolvency, liquidation or similar laws of general
application for the time being in force and, if any such security or
payment is so avoided or reduced, the Finance Parties shall be
entitled to recover the value or amount of such security or payment
from the Original Borrower subsequently as if such settlement or
discharge had not occurred.
25.6 Immediate recourse
The Finance Parties shall not be obliged before exercising any of
the rights, powers or remedies conferred upon it in respect of the
Original Borrower by this Agreement or by law:
25.6.1 to make any demand of any of the Subsidiary Borrowers;
25.6.2 to take any action or obtain judgment in any court against
any of the Subsidiary Borrowers;
46
25.6.3 to make or file any claim or proof in a winding-up or
dissolution of any of the Subsidiary Borrowers; or
25.6.4 to enforce or seek to enforce any other security taken in
respect of any of the obligations of any of the Subsidiary
Borrowers hereunder.
25.7 Non-competition
The Original Borrower agrees that, so long as any amounts are or may
be owed by any Subsidiary Borrower under this Agreement or any of
the Subsidiary Borrowers is under any actual or contingent
obligations hereunder, any rights which it may at any time have by
reason of performance by it of its obligations hereunder:
25.7.1 to be indemnified by such Subsidiary Borrower;
25.7.2 to claim any contribution from any other guarantor of such
Subsidiary Borrower's obligations under this Agreement; and/or
25.7.3 to take the benefit (in whole or in part and whether by way
of subrogation or otherwise) of any rights of the Finance
Parties under any of the Finance Documents or of any other
security taken pursuant to, or in connection with, any of the
Finance Documents by the Finance Parties,
shall be exercised by the Original Borrower in such manner and upon
such terms as the Finance Parties may require and the Original
Borrower further agrees to hold any moneys at any time received by
it as a result of the exercise of any such rights for and on behalf
of, and to the order or, the Finance Parties for application in or
towards payment of any sums at any time owed by any of the
Subsidiary Borrowers under this Agreement.
25.8 Suspense account
All moneys received, recovered or realised by the Facility Agent by
virtue of clause 25.1 (Guarantee obligations) may, in the Facility
Agent's absolute discretion, be credited to an interest-bearing
suspense or impersonal account and may be held in such account for
so long as the Facility Agent thinks fit acting reasonably pending
the application from time to time (as the Facility Agent may think
fit acting reasonably) of such moneys in or towards the payment and
discharge of any amounts owing by any of the Subsidiary Borrowers to
the Finance Parties hereunder.
26. ACCESSION AND CESSATION OF SUBSIDIARY BORROWERS
26.1 Delivery of Subsidiary Borrower's Accession Memorandum
If it is proposed that any Subsidiary of the Original Borrower is to
become a Subsidiary Borrower under this Agreement the Obligor's
Agent shall deliver to the Facility Agent:
26.1.1 a request proposing that such Subsidiary becomes a Subsidiary
Borrower hereunder and a party hereto, having all the rights,
benefits, liabilities and obligations of a Subsidiary Borrower
hereunder; and
47
26.1.2 a Subsidiary Borrower's Accession Memorandum relating to the
proposed Subsidiary Borrower duly completed and executed by
the Obligor's Agent and the proposed Subsidiary Borrower,
together with each of the documents mentioned in Schedule 8
(Documents to accompany Subsidiary Borrower's Accession
Memorandum),
and, in the case of a Subsidiary which is incorporated outside
England and Wales upon the Facility Agent having informed the
Obligor's Agent in writing that it has received the approval of all
the Banks to such Subsidiary becoming a Subsidiary Borrower (such
approval not to be unreasonably withheld or delayed), if the
Facility Agent has confirmed to the Obligor's Agent (such
confirmation not to be unreasonably withheld or delayed) that each
of the documents delivered to it as contemplated by clause 26.1.2
above is in form and substance satisfactory to the Facility Agent,
the Facility Agent shall (and is hereby authorised to) execute such
Borrower's Accession Memorandum on its own behalf and for and on
behalf of each of the other Finance Parties.
26.2 Acceding Subsidiary Borrower's obligations
On the date on which the Facility Agent executes a Subsidiary
Borrower's Accession Memorandum relating to a proposed Subsidiary
Borrower pursuant to clause 26.1 (Delivery of Subsidiary Borrower's
Accession Memorandum), such proposed Subsidiary Borrower shall
become a Subsidiary Borrower and a party hereto and accordingly:
26.2.1 such proposed Subsidiary Borrower shall have liabilities and
obligations identical to those expressed to be assumed by a
Borrower hereunder;
26.2.2 such proposed Subsidiary Borrower shall be entitled to the
rights and benefits of a Borrower hereunder; and
26.2.3 the obligations of the Original Borrower under clause 25
(Guarantee) shall thereupon extend to any sum or sums from
time to time due from such proposed Subsidiary Borrower under
this Agreement.
26.3 Cessation of Subsidiary Borrower
The Obligor's Agent may declare that a Subsidiary Borrower shall
cease to be a Subsidiary Borrower hereunder for the purposes of this
Agreement by so notifying the Facility Agent in writing. Upon
receipt by the Facility Agent of a Subsidiary Borrower's Cessation
Notice, duly executed by the Obligor's Agent, such Subsidiary
Borrower shall relinquish all the rights and cease to be liable for
all its obligations hereunder and thereafter shall not be treated as
a Subsidiary Borrower for the purposes of this Agreement, provided
that at the time of such receipt (a) such Subsidiary Borrower is
under no actual or contingent obligation to make any payment under
this Agreement, and (b) no Default has occurred which (in either
case) has not been remedied or waived by the Facility Agent in
accordance with the provisions of this Agreement.
27. INDEMNITIES
27.1 Indemnifiable events: The Original Borrower agrees to indemnify each
Finance Party on
48
demand against any loss or expense, including legal fees, and any
applicable VAT, (to the extent that the loss or expense incurred by
such Finance Party did not arise solely as a result of the breach by
such Finance Party of any of its material obligations under this
Agreement or its negligence or wilful default) which any of them may
sustain or incur as a result or a consequence of any of the events
referred to in this clause 27.1 (Indemnifiable events) having
occurred:
27.1.1 Advance not made
the funding of an Advance following delivery of a Drawdown
Request but which is not borrowed because of the application
of one or more of the provisions of this Agreement; or
27.1.2 Broken funding
receiving or recovering all or any part of an Advance other
than on its Repayment Date or at the end of any period
selected by the Facility Agent under clause 9 (Default
Interest), including any amount required to compensate that
Finance Party in respect of any loss, premium, penalty or
other compensating payment sustained or incurred by it in
liquidating, employing or redeploying deposits acquired or
arranged or entered into in order to make, fund or maintain
such Advance; or
27.1.3 Alternative Currency Request
any loss that Finance Party may suffer as a result of it
funding an Advance requested by a Borrower to be made in an
Alternative Currency but which is denominated in Sterling as a
result of the application of clause 7 (Alternative
Currencies); or
27.2 Occurrence of an Event of Default
The Original Borrower agrees to indemnify each Finance Party on
demand against any reasonable loss, expense, including legal fees
and any applicable VAT, which any of them may reasonably sustain or
incur as a result of the occurrence of an Event of Default or any
other breach of the obligations of any Obligor expressed to be
assumed by it under any Finance Document.
27.3 Stamp duty
27.3.1 The Original Borrower will pay all stamp, documentary,
registration and other similar duties or Taxes, including any
penalties, additions, surcharges or interest relating to such
amounts, which are imposed or chargeable on or in connection
with this Agreement or any judgment given in connection with
this Agreement.
27.3.2 The Facility Agent may, but shall not be obliged to, pay any
amounts which are referred to at clause 27.3.1 above. If the
Facility Agent does so, the Original Borrower shall, on
demand, indemnify the Facility Agent against any such payment,
together with any costs and expenses, including legal fees,
and any applicable VAT, incurred by or on behalf of the
Facility Agent in connection with such payment.
49
27.4 Currency indemnity
If any sum due from an Obligor under a Finance Document or any order
or judgment given or made in relation thereto has to be converted
from the currency (the "first currency") in which the same is
payable hereunder or under such order or judgment into another
currency (the "second currency") for the purpose of (i) making or
filing a claim or proof against an Obligor, (ii) obtaining an order
or judgment in any court or other tribunal or (iii) enforcing any
order or judgment given or made in relation hereto, such Obligor
shall indemnify and hold harmless each of the Persons to whom such
sum is due from and against any loss suffered as a result of any
discrepancy between (a) the rate of exchange used for such purpose
to convert the sum in question from the first currency into the
second currency and (b) the rate or rates of exchange at which such
Person may in the ordinary course of business purchase the first
currency with the second currency upon receipt of a sum paid to it
in satisfaction, in whole or in part, of any such order, judgment,
claim or proof.
28. FEE
The Original Borrower shall pay to the Facility Agent, for its own
account, a fee in the amount and at the times specified in the Fee Letter.
29. COSTS AND EXPENSES
29.1 Initial costs
The Original Borrower shall pay to the Facility Agent an amount
equal to all reasonable costs and expenses, including legal fees,
and any applicable VAT incurred by the Facility Agent in connection
with the negotiation, preparation and execution of the Finance
Documents.
29.2 Amendments
The Original Borrower shall pay to the Facility Agent an amount
equal to all reasonable costs and expenses, including legal fees,
and any VAT payable thereon, incurred by the Facility Agent in
connection with the negotiation, preparation and execution of any
amendment, waiver, release or consent which any of the Finance
Parties is requested by the Original Borrower to give in connection
with this Agreement and the transactions contemplated by it.
29.3 Protection, enforcement, etc.
The Original Borrower shall pay, through the Facility Agent, an
amount equal to all reasonable costs and expenses, including legal
fees, and any applicable VAT reasonably incurred by any Finance
Party in connection with protecting, preserving or enforcing (or
attempting to do so) any of their rights under or arising out of
this Agreement.
30. THE FACILITY AGENT
30.1 Appointment of the Facility Agent
30.1.1 Each Bank irrevocably appoints the Facility Agent to act as
its agent in connection
50
with this Agreement and the transactions contemplated by it.
30.1.2 The Facility Agent is authorised to take such action and to
exercise and carry out all the discretions, authorisations,
rights, powers and duties as are specifically delegated to it
in this Agreement, together with such discretions, rights and
powers as the Facility Agent reasonably considers to be
incidental.
30.1.3 The Facility Agent is not, nor will it be considered to be,
acting as trustee or in a fiduciary capacity under or in
connection with any of the Finance Documents. The duties of
the Facility Agent are restricted to those expressly stated in
this Agreement.
30.2 Duties of the Facility Agent
30.2.1 The Facility Agent will promptly forward to the relevant
Party the original or a copy of any notice or document
received by it in its capacity as an agent for such Party.
30.2.2 The Facility Agent will promptly notify the Banks if it
receives notice from any Party of the occurrence of a Default
or any other breach of this Agreement by an Obligor and that
notice states the Default or breach and makes reference to the
specific Event of Default and/or the clause that has been
breached.
30.2.3 Except as otherwise stated in this Agreement, the Facility
Agent will act in accordance with any instructions given to it
by the Majority Banks, such instructions being binding on all
the Banks whether or not they form part of the Majority Banks.
30.3 Exculpatory provisions
Except where this Agreement specifically provides otherwise, the
Facility Agent is not obliged:
30.3.1 to review or check the accuracy or completeness of any
document, notice or other communication it receives or
forwards to another Party;
30.3.2 to monitor or enquire if a Default has occurred, or if the
representations made by any Obligor under or in connection
with this Agreement are true, correct or accurate, or whether
any Obligor has performed each of the obligations expressed to
be assumed by it under or in connection with this Agreement;
30.3.3 to disclose to any Party any information (whether in a
documentary form or otherwise) if such disclosure would or
might, in its opinion, constitute a breach of law, regulation,
its duty of confidentiality or otherwise be actionable at the
suit of any Person;
30.3.4 to take any action or exercise any right, power or discretion
under this Agreement, unless specifically instructed to do so
by the Majority Banks, the Banks or any other Finance Party
which is entitled to instruct it under this Agreement and the
manner in which such right, power or discretion should be
exercised; or
51
30.3.5 to begin any legal action or proceeding under or in
connection with this Agreement, unless it is satisfied that it
has received such security as it may require in respect of any
costs, claims, liability or loss, including legal fees, and
any applicable VAT, which it will or may incur in respect of,
or in connection with, such actions or proceedings.
30.4 Assumptions
The Facility Agent may assume that:
30.4.1 no Default has occurred and that no Obligor is in breach of
its obligations under any of the Finance Documents; and
30.4.2 each representation made by an Obligor under or in connection
with any of the Finance Documents is correct,
unless it has, in its capacity as an Agent, received notice to the
contrary from any Party; and
30.4.3 that the Facility Office of any Bank is that office which has
been notified to it by that Bank for such purpose by ten
Business Days' notice, until such Bank informs the Facility
Agent that it has designated another office as its Facility
Office.
30.5 Agent not responsible to other Parties
The Facility Agent is not responsible to any other Party for:
30.5.1 the execution, validity or enforceability of this Agreement
or any documentation or communication delivered or made in
connection therewith;
30.5.2 the accuracy and/or completeness of any information supplied
(whether orally or in writing) by or on behalf of the
Obligors; or
30.5.3 taking, or omitting to take, any action in connection with
this Agreement, unless such Party suffers loss directly as a
result of the Facility Agent's negligence or wilful
misconduct.
30.6 Delegation and advisers
The Facility Agent may:
30.6.1 engage, pay for and rely on the advice or services of any
expert or professional (whether a lawyer, accountant, surveyor
or otherwise); and
30.6.2 act through any of its, or its Affiliates', personnel and
agents.
30.7 Indemnity
Upon demand by the Facility Agent, each Bank shall, in its
Proportion, indemnify the Facility Agent from and against any
liabilities, costs, claims, losses and expenses, including legal
fees, and any applicable VAT which it may incur in any way relating
to or arising out of it acting in its capacity as an agent, unless
incurred solely as a result of the Facility Agent's negligence or
wilful misconduct.
52
30.8 Resignation of the Facility Agent
30.8.1 The Facility Agent may (with the prior consent of the
Original Borrower such consent not to be unreasonably withheld
or delayed), resign its appointment under this Agreement by
giving notice to that effect to each of the other Parties
stating whether or not it has appointed its Affiliate as its
successor. The Facility Agent's resignation shall not become
effective until a successor has been appointed pursuant to
this clause 30.8 (Resignation of the Facility Agent).
30.8.2 If the successor to the Facility Agent is to be:
30.8.2.1 one of its Affiliates, such Affiliate shall become
the Facility Agent under this Agreement upon notice to
that effect being given by the resigning Facility Agent
and its successor to each of the other Parties; or
30.8.2.2 other than one of its Affiliates, its successor shall
be appointed by the Majority Banks with the prior
written approval of the Original Borrower, such approval
not to be unreasonably withheld or delayed. If the
Majority Banks have not appointed a successor within 30
days of the Facility Agent's notice given under (30.8.1)
above, the relevant Facility Agent may appoint its
successor, such appointment becoming effective upon
notice to that effect being given by the resigning
Facility Agent and its successor to each of the other
Parties.
30.8.3 After a successor to the Facility Agent has been appointed,
the retiring Facility Agent shall continue to be entitled to
the benefits of this clause 30 (The Facility Agent) and its
successor and each of the Parties shall have the same rights
and obligations amongst themselves as if the successor had
been a Party to this Agreement instead of the retiring
Facility Agent.
30.8.4 The retiring Facility Agent will make available to its
successor any documents, records and advice which its
successor reasonably requires in order to enable it to perform
its functions as the Facility Agent.
30.9 Separate entity
The Facility Agent's agency divisions shall be treated as a separate
entity from any of its other departments or divisions. Therefore,
unless the Facility Agent receives any information concerning any
Group Member in connection with this Agreement or the facilities
contemplated by this Agreement in its capacity as the Facility
Agent, it shall be entitled to treat that information as
confidential.
30.10 Banks to make own appraisals
It is understood and agreed by each Bank that it has itself been,
and will continue to be, solely responsible for making its own
independent appraisal of and investigations into the financial
condition, creditworthiness, condition, affairs, status and nature
of each Obligor, and accordingly, each Bank confirms to the Facility
Agent that it has not relied and will not thereafter rely on the
Facility Agent:
53
30.10.1 to check or enquire on its behalf into the adequacy,
accuracy or completeness of any information provided by an
Obligor in connection with this Agreement or the transactions
herein contemplated (whether or not such information has been
or is hereafter circulated to such Bank by the Facility
Agent); or
30.10.2 to assess or keep under review on its behalf the financial
condition, creditworthiness, condition, affairs, status or
nature of an Obligor.
30.11 Miscellaneous provisions
30.11.1 The Facility Agent and the Arranger shall, if it is also a
Bank, have the same rights and obligations under this
Agreement as if it were not the Facility Agent or the Arranger
d exercise those rights and perform those obligations
accordingly.
30.11.2 The Facility Agent and Arranger may contract any banking or
other business with any Group Member.
30.11.3 None of the Banks will assert against any individual any
claim which it may have against either of the Facility Agent.
31. TRANSFERS
31.1 Obligors
No Obligor may assign, transfer, novate or dispose of all or any of
its rights or obligations under any of the Finance Documents.
31.2 Banks
31.2.1 Subject to clause 31.2.3, any Bank (the "Existing Bank") may,
at any time, assign, transfer or novate all or any part of its
rights, benefits and obligations under this Agreement to
another financial institution (the "New Bank") by, in the case
of a transfer or a novation, delivering, or causing to be
delivered, to the Facility Agent a Novation Certificate duly
completed and executed by the Existing Bank and the New Bank
and to be executed upon receipt by the Facility Agent
31.2.2 Unless the proposed assignment, transfer or novation is to
another Bank or an Affiliate of a Bank (which is a Qualifying
Bank), or an Event of Default has occurred and is continuing,
the prior written consent of the Original Borrower shall be
required.
31.2.3 If, at the time of an assignment, a transfer or novation of
all or any part of the rights or obligations of a Bank
pursuant to the terms of the Finance Documents or any change
in a Bank's Facility Office, or immediately thereafter, or if
a payment of principal, interest or otherwise was to be made
by an Obligor under the Finance Documents at such time to or
for the account of the proposed New Bank or, as the case may
be, such Bank (the "Relevant Bank"), an Obligor would (due to
any law, regulation, treaty, official directive in existence
or the subject of a formal and public proposal by any
competent authority at that time) be liable to pay any
additional amount or
54
compensation in accordance with the Finance Documents, then
the Relevant Bank shall be entitled to receive those amounts
only to the extent that the Relevant Bank would have been so
entitled had there been no such assignment, transfer, novation
or change in Facility Office.
31.2.4 The Original Borrower shall not unreasonably withhold or
delay in giving its consent to any requested assignment,
transfer or novation under this Agreement.
31.3 Time of transfer
Upon execution of a Novation Certificate by the New Bank, the
Existing Bank and the Facility Agent (or if later, the date
specified for this purpose in the Novation Certificate) and to the
extent that they are expressed to be subject to the transfer stated
therein:
31.3.1 the Existing Bank shall be released from its obligations to
each other Party (the "released obligations") and each other
Party shall be released from its obligations to the Existing
Bank;
31.3.2 the New Bank will assume obligations towards each other Party
which differ from the released obligations only in so far as
they are owed to or assumed by the New Bank and not the
Existing Bank;
31.3.3 the rights of the Existing Bank against the other Parties and
vice versa (the "cancelled rights") will be cancelled; and
31.3.4 the New Bank and the other Parties will acquire rights
against each other which differ from the cancelled rights only
insofar as they are exercisable by or against the New Bank and
not the Existing Bank.
Each Party (other than the Existing Bank and the New Bank)
irrevocably authorises the Facility Agent to execute each Novation
Certificate on its behalf.
31.4 Administration fee
Not later than on the date a transfer becomes effective in
accordance with clause 31.3 (Time of transfer), the New Bank will
pay to the Facility Agent, for its own account, an administration
fee of (pound)950.
31.5 Disclosure of information
31.5.1 Any Finance Party may provide to a Permitted Recipient a copy
of this Agreement and such information concerning the Group as
it considers appropriate.
31.5.2 A "Permitted Recipient" means, in respect of any Finance
Party:
31.5.2.1 its Affiliates;
31.5.2.2 any Person which it is considering entering into
contractual relations with in connection with this
Agreement (being a financial institution which purports
to be a Qualifying Bank);
55
31.5.2.3 its advisers;
31.5.2.4 the courts, regulatory and other bodies in accordance
with whose orders or regulations it is required or is
accustomed to comply; and
31.5.2.5 any other Person who that Finance Party reasonably
considers appropriate to receive such information in
order to protect or preserve that Finance Party's
position.
Provided always that no such disclosure shall be made by a
Bank unless such Bank has, prior thereto, consulted with the
Original Borrower in relation to the nature of the information
so to be disclosed (such consultation obligation to be without
prejudice to a Bank's right to effect such a disclosure
irrespective of the results of such consultation) and provided
further that no consultation will be required in the case of
disclosure to a sub-participant if such disclosure is limited
to the Finance Documents, publicly available information,
details of Utilisations hereunder and details of compliance or
non-compliance by an Obligor with the provisions of the
Finance Documents.
32. REDISTRIBUTION PROVISIONS
32.1 Redistributions
32.1.1 Subject to clause 32.3 (Exceptions), if all or any part of an
Obligor's obligations under this Agreement owed to any Finance
Party are discharged in relation to the Facility whether by
way of set-off, payment, combination of accounts or otherwise,
other than as a result of the Facility Agent receiving payment
and distributing such payment in accordance with clause 15
(Payments), that Finance Party (the "Recovering Party") shall
promptly pay to the Facility Agent an amount equal to the
amount so discharged (the "Discharged Amount").
32.1.2 The Facility Agent shall treat each Discharged Amount
received by it from a Recovering Party as if it had received
the Discharged Amount from the relevant Obligor and distribute
it amongst the Finance Parties (including the Recovering
Party) in accordance with clause 15.2 (Distribution by
Facility Agent).
32.1.3 Upon a Discharged Amount being distributed by the Facility
Agent, the relevant Recovering Party shall be subrogated to
the rights of each of the other Finance Parties which received
such a distribution to the extent of such distribution and the
relevant Obligor will owe the Recovering Party a debt which is
equal to the amount so distributed to each of the other
Finance Parties.
32.2 Repayment of a discharged amount
If a Recovering Party is required to return or repay an amount which
it determines relates to a Discharged Amount made by it under clause
32.1 (Redistributions), it shall promptly inform the Facility Agent.
Each of the Finance Parties (other than the Recovering Party which
received a payment as a result of the Discharged Amount
56
being distributed) shall pay to the Facility Agent (for the account
of the Recovering Party) all that it has received of the Discharged
Amount. Upon such payment being made, the rights of subrogation
provided in clause 32.1.3 (Redistributions) above shall be operated
in reverse to the extent of the reimbursement.
32.3 Exceptions
32.3.1 A Recovering Party is not obliged to pay any amount under
clause 32.1 (Redistributions) if, in its opinion (acting
reasonably), after such payment it would not have a valid
claim against the relevant Obligor by way of subrogation or
otherwise in respect of such payment.
32.3.2 A Finance Party shall not be obliged to make any payment
under clause 32.1 (Redistributions) if the obligations owed to
that Finance Party are discharged as a result of it receiving
payment from a New Bank in respect of a Novation Certificate.
32.3.3 A Recovering Party which has commenced or joined in an action
or proceeding in any court to recover any amount due to it
under this Agreement and pursuant to a judgment obtained in
such court or a settlement or compromise of that action or
proceeding shall have received any amount, shall not be
obliged to share all or any proportion of that amount with any
Finance Party which has the legal right to, but does not, join
in such action or proceeding or commence and diligently
prosecute a separate action or proceeding to enforce its
rights under this Agreement in the same or another court.
32.4 Re-allocation - determination
Following the occurrence of an Event of Default and the Facility
Agent having been instructed by the Majority Banks to deliver a
written notice to the Original Borrower pursuant to clause 24.1
(Events of Default), and without prejudice to the other provisions
of this clause 32 (Redistribution Provisions),
32.4.1 the Facility Agent shall determine, in respect of each Bank,
the Dollar Amount of such Bank's outstanding Advances; and
32.4.2 the Facility Agent shall determine the Dollar Amount of a
Bank's aggregate outstanding Advances, when expressed as a
percentage of the aggregate Dollar Amount of all outstanding
Advances (in respect of such Bank, its "Advances Percentage")
and such Bank's Commitment expressed as a percentage of the
Total Commitments at such time (in respect of such Bank, its
"Commitment Percentage"), following which it shall determine
whether such Bank's Advances Percentage is greater than, equal
to or less than such Bank's Commitment Percentage and promptly
notify each Bank of its determination.
32.5 Re-allocation - notification
If a Bank is informed by the Facility Agent pursuant to clause 32.4
(Re-allocation - determination) above that its Advances Percentage
is less than its Commitment Percentage it shall pay to the Facility
Agent such amount(s) and in such currency or currencies as the
Facility Agent shall inform it for these purposes so as to enable
the
57
Facility Agent to redistribute the same together with any other
amounts required to be paid to the Facility Agent at such time
pursuant to this clause 32.5 (Re-allocation - notification) to such
Bank or Banks that have an Advances Percentage greater than their
respective Commitment Percentage such that following each
redistribution required to be made pursuant to this clause 32.5
(Re-allocation - notification) each Bank's Advances Percentage is
equal to its respective Commitment Percentage.
32.6 Re-allocation - transfers
Following the redistributions referred to at clause 32.5
(Re-allocation notification) the provisions of clause 31 (Transfers)
shall, to the extent the required payments were made thereunder, be
deemed to apply such that following such payments the Advances
Percentage of each Bank shall equal such Bank's Commitment
Percentage whereupon the Facility Agent shall confirm to each of the
Banks their respective outstanding Advances, the currency thereof,
the Dollar Amount thereof, the date each such Advance was made, the
identity of the respective Borrower and such other details relating
thereto as the Facility Agent considers appropriate.
33. CALCULATIONS AND EVIDENCE OF DEBT
33.1 Calculations
Interest shall accrue from day to day and shall be calculated on the
basis of a year of 365 days or, in the case of an Alternative
Currency, 360 days (or, if market practice differs, in accordance
with market practice) and the actual number of days elapsed.
33.2 Accounts
Each of the Banks shall, in accordance with its usual practices,
maintain on its books an account reflecting the amount which it has
lent and the amount owing to it under this Agreement from time to
time.
33.3 Control account
The Facility Agent shall, in accordance with its usual practices,
maintain on its books a control account reflecting any amounts
received or recovered by it in connection with this Agreement and
any amounts which are payable by any Party in connection with this
Agreement and the Parties' respective interests in such amounts.
33.4 Actual amount received
The amount owed by any Obligor to any Finance Party under this
Agreement shall be reduced by the amount actually received or
recovered by such Finance Party and not by reference to any rate of
exchange applied by any court or other body in calculating how much
is payable by that Obligor under any judgment or order given in
connection with this Agreement.
33.5 Prima facie evidence
The accounts referred to in clauses 33.2 (Accounts) and 33.3
(Control account) are prima facie evidence of the amount and details
recorded in those accounts.
58
33.6 Certificates and determinations
Any certificate delivered or determination made by a Finance Party
of a rate or an amount shall, in the absence of manifest error, be
conclusive evidence of the matters to which such certificate or
determination relates.
33.7 Reference Banks
33.7.1 If any Reference Bank fails to provide the Facility Agent
with a quotation when required for the purposes of this
Agreement, the rate for which such quotation was required
shall, be determined by reference to the quotations that are
received by the Facility Agent.
33.7.2 Additional or replacement banks may, by agreement between the
Original Borrower and the Majority Banks, be appointed as a
Reference Bank.
34. AMENDMENTS AND WAIVERS
34.1 Majority Banks
Unless prohibited by clause 34.2 (All Banks), clause 34.3 (All
Parties) or clause 34.4 (The Facility Agent), any provision of this
Agreement may be amended, waived or supplemented or any consent
given by written agreement made between the Original Borrower and
the Majority Banks or, if the Facility Agent has received the
Majority Banks' prior approval, the Facility Agent on their behalf.
34.2 All Banks
The provisions contained in this Agreement and which relate to the
following shall not be amended, supplemented or modified or any
consent given without the prior consent of all Parties (other than
the Facility Agent):
34.2.1 the definitions of "Final Repayment Date", "Majority Banks",
and "Repayment Date";
34.2.2 any provision of this Agreement which expressly requires the
consent of each Bank and, in particular, the provisions of
clauses 2.4 (Nature of Banks' obligations and rights), 25
(Guarantee), 31 (Transfers) or 32 (Redistributions); and
34.2.3 any provision having the effect of changing the amount of the
Facility, a Bank's Commitment or Available Commitment or have
the effect of decreasing the amount or changing the currency
of any amount (whether principal, interest, fees or otherwise)
payable the Facility Agent or a Bank under this Agreement or
extending the Term of an Advance.
34.3 All Parties
Without the prior consent of all Parties, this clause 34 (Amendments
and Waivers) may not be amended, waived of supplemented.
34.4 The Facility Agent
59
Without the prior consent of the Facility Agent none of the Facility
Agent's rights or obligations under this Agreement may be amended,
waived or supplemented.
35. NOTICES
35.1 Method of delivery
All notices or other communications made or given in connection with
this Agreement shall be made in writing by facsimile or letter.
35.2 Addresses
Each communication or document to be made or delivered in connection
with this Agreement to a Party shall be delivered or sent to the
address or facsimile number that has been:
35.2.1 notified to the Facility Agent by that Party before it became
a Party; or
35.2.2 notified to the Facility Agent by at least five Business
Days' notice.
35.3 Facility Agent's details
Unless it has given the other Parties five Business Days' notice to
that effect, the address and facsimile number of the Facility Agent
are:
00
Xxxx Xxxxx
Xxxx Xxxxxx
Xxxxxxx XX0 0XX;
Fax: 0000 000 0000
Attn: Loans Administration Department
Officer: Head of Department
35.4 Receipt of notices
35.4.1 Any notice or communication will be deemed to have been
given, if sent by post, when delivered and, if by facsimile,
when received. However, if the notice or communication is for
the Facility Agent, it shall only be effective when the same
is received by the department or the officer referred to at,
clause 35.3 (Facility Agent's details) or as otherwise
notified by the Facility Agent under that clause.
35.4.2 Any notice or communication to be delivered to any Obligor
shall be deemed to have been delivered to such Obligor if
delivered to the Original Borrower in accordance with this
Agreement.
35.4.3 The Original Borrower shall forthwith on demand indemnify
each Finance Party against any direct loss or liability which
that Finance Party incurs (and that Finance Party shall not be
liable to an Obligor in any respect) as a consequence of:
35.4.3.1 any Person to whom any notice or communication under
or in connection with this Agreement is sent by
facsimile failing to receive that notice or
communication (unless such loss or liability is directly
caused by that Person's negligence or wilful default);
or
35.4.3.2 any facsimile communication which appears to that
Finance Party (acting reasonably) to have been sent by
an Obligor having in fact been sent by a Person other
than an Obligor.
36. PARTIAL INVALIDITY
If any provision of this Agreement is or becomes illegal, invalid or
unenforceable in any respect under the law of any jurisdiction, it shall
not affect or impair the legality, validity or enforceability of:
36.1 any other provision of this Agreement; or
36.2 that provision, under the law of any other jurisdiction.
37. REMEDIES AND WAIVERS
37.1 If any of the Finance Parties do not exercise, or delay in
exercising, any of their respective rights or remedies under or in
connection with this Agreement, it shall not operate as a waiver of
any such right or remedy.
61
37.2 The single or partial exercise of any right or remedy shall not
prevent any further or other exercise of that right or remedy.
37.3 The rights and remedies provided in this Agreement are additional to
any rights or remedies provided by law.
38. COUNTERPARTS
This Agreement may be executed in any number of counterparts and by
different Parties on separate counterparts each of which, when executed
and delivered, shall constitute an original and all the counterparts shall
together constitute but one and the same instrument.
39. JURISDICTION
39.1 Courts of England
For the benefit of each Finance Party, each Obligor incorporated
outside England and Wales agrees that the courts of England have
jurisdiction to hear and settle any action, suite, proceeding or
dispute arising out of or in connection with the Finance Documents
to which it is a party and therefore irrevocably submits to the
jurisdiction of those courts.
39.2 Non-exclusivity
The submission to the jurisdiction of the English courts does not
restrict the right of a Finance Party to take proceedings against
any such Obligor arising out of or in connection with the Finance
Documents to which it is a party in any other court of competent
jurisdiction, whether concurrently or not.
39.3 Service of process agent
39.3.1 In addition to any other appropriate method of service, each
such Obligor irrevocably agrees that any suit, action or
proceeding arising out of or in connection with the Finance
Documents may be served on it by being delivered to United
News & Media Plc at Xxxxxxx Xxxxx, 000 Xxxxxxxxxxx Xxxx,
Xxxxxx XX0 0XX or its registered office and confirms that it
has appointed United News & Media Plc as its agent for such
purpose.
39.3.2 Each such Obligor confirms that failure by its process agent
to notify it of receipt of any process will not invalidate the
proceedings to which it relates.
39.3.3 If the appointment of a process agent ceases to be effective,
each such Obligor shall immediately appoint a further Person
in England as its process agent in respect of this Agreement
and notify the Facility Agent of such appointment. If such a
Person is not appointed within 15 days the Facility Agent
shall be entitled to appoint such a Person.
39.4 Non-convenience of forum
Each such Obligor confirms that the English courts are not an
inconvenient forum and irrevocably waives any right it may have to
object to them on the grounds of inconvenience or otherwise.
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40. GOVERNING LAW
This Agreement is governed by and shall be construed in accordance with
English law.
This Agreement has been entered into by the Parties on the date stated at
the beginning of this Agreement.
63
SCHEDULE 1
The Banks
Commitment ($)
Lloyds Bank Plc 240,000,000
SCHEDULE 2
Conditions Precedent
1. The Original Borrower and the Original Subsidiary Borrower shall deliver
(in respect of itself):
1.1 A Certified Copy of its Memorandum and Articles of Association (or
its equivalent constitutive documents), its certificate of
incorporation and any changes of name which are applicable to it.
1.2 A Certified Copy of its board resolution relating to the Agreement
and the transactions contemplated under it.
1.3 Specimen signatures of its Authorised Signatories.
1.4 A certificate of an Authorised Signatory confirming that, if an
amount equal to the Total Commitments was drawn down in one amount,
it would not breach any borrowing limit applicable to that Borrower
in its Memorandum and Articles of Association (or its equivalent
constitutive documents) or in any agreement or contract to which it
is a party or which is binding on it or any of its assets and that
all requisite corporate and other action has been duly taken to
approve the Borrower entering into and performing its obligations
under this Agreement.
1.5 Standard payment instructions.
2. An opinion of Dibb Xxxxxx Xxxxx, legal advisers to the Facility Agent, in
substantially the form distributed to and approved by the Banks prior to
the date hereof.
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SCHEDULE 3
Form of Drawdown Request
To: [Lloyds Bank Plc Capital Markets] as Facility Agent
From: [Borrower].
Date: [o ]
Dear Sirs,
Re $240,000,000 Multicurrency Revolving Credit Facility dated May 1999 (the
"Facility Agreement")
1. We hereby give you notice that, pursuant to the Facility Agreement and
upon the terms and subject to the conditions contained therein, we wish
Advances to be made to us as follows:
1.1 Currency:
1.2 Requested Amount:
1.3 Drawdown Date:
1.4 Term:
2. We confirm that, at the date hereof:
2.1 the representations set out in clause 20.1(Continuing
representations) of the Facility Agreement are true and correct in
all material respects; and
2.2 no Event of Default or Potential Event of Default has occurred which
is continuing and has not been waived in writing by the Facility
Agent pursuant to clause 37 (Remedies and waivers).
3. The Advances should be credited to [insert account details].
4. Terms used in this Drawdown Request and not otherwise defined shall bear
the same meaning as in the Facility Agreement.
5. This Drawdown Request is governed by and shall be construed in accordance
with English law.
Yours faithfully
[Borrower]
Authorised Signatory
65
SCHEDULE 4
Form of Novation Certificate
To: Lloyds Bank Plc Capital Markets (the "Facility Agent")
From: [The Existing Bank] (the "Existing Bank") and
[The New Bank] (the "New Bank")
Date: [o ]
Dear Sirs
Re: $240,000,000 Multicurrency Revolving Credit Facility dated May 1999 (the
"Facility Agreement")
1. Terms defined in the Facility Agreement and not otherwise defined shall
bear the same meaning in this Novation Certificate.
2. The Existing Bank and the New Bank have agreed to novate such of the
Existing Bank's rights and obligations as are set out in the Schedule to
this Novation Certificate in accordance with clause 31 (Transfers).
3. The date upon which the novation recorded in this Novation Certificate is
to be effective shall be [o ].
4. The Facility Office(s) of the New Bank is (are) as follows:
[Insert details].
5. The New Bank has received a copy of the Facility Agreement and such other
information as it requires in relation to the Facility Agreement and the
transactions contemplated in the Facility Agreement.
6. The New Bank has not, and will not, rely on the Existing Bank or any other
Party, nor do any of the Parties make any representation:
6.1 as to the legality, validity, effectiveness, adequacy, accuracy or
completeness of any information the New Bank has obtained in
connection with or the transactions contemplated in the Facility
Agreement ; or
6.2 in relation to the financial condition, creditworthiness, condition,
affairs, status or nature of the Borrower.
7. By accepting this Novation Certificate, the New Bank undertakes with each
of the other Parties to the Facility Agreement that it will perform in
accordance with its terms all of the obligations which it assumes as a
result of this Novation Certificate.
8. Nothing contained in or arising out of this Novation Certificate shall
oblige the Existing Bank to:
8.1 accept a re-novation from the New Bank of all or any portion of the
rights and obligations which are novated by this Novation
Certificate; or
66
8.2 support any losses directly or indirectly suffered by the New Bank
for any reason whatsoever, including non-performance of the Borrower
or any other Party to the Facility Agreement of the obligations
expressed to be assumed by its under the Facility Agreement.
9. The New Bank acknowledges that it has fully considered the implications of
clause 16 (Taxes) and the definition of "Qualifying Bank" as the same
applies to it, having regard to the jurisdiction(s) in which the Obligors
are incorporated, and the provisions of clause 31.2.3.
10. This Novation Certificate is governed by and shall be construed in
accordance with English law.
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The Schedule
1. Total Commitment:
2. Existing Bank's Commitment:
3. Existing Bank's Available Commitment:
4. Existing Bank's outstanding Advances:
--------------------------------------------------------------------------------
Drawdown Date Amount Borrower Repayment Date
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
5. Percentage of Existing Bank's Commitment and Available Commitment and
outstanding Advances is [o per cent.].
[Name of Existing Bank] [Name of New Bank]
By: By:
Date: Date:
Lloyds Bank Plc Capital Markets
By:
Date:
68
SCHEDULE 5
Timetable
"DD" = Drawdown Date
"DD - X" = X Business Days prior to Drawdown Date
"Bs" = Banks
"A" = Facility Agent
"( )" = clause Number
------------------------------------------------------------------------------
Dollar and
Alternative
Sterling Currency
Advances Advances
(London time) (London time)
--------------------------------------------------------------------------------
1. Delivery of Drawdown
Request to A (6.1(a)) DD 9.15am DD - 3 noon
--------------------------------------------------------------------------------
2. A to notify Bs of
allocation (6.5(a)) DD 10am DD - 3 3pm
--------------------------------------------------------------------------------
3. LIBOR fixing DD 11am DD - 2 11am
--------------------------------------------------------------------------------
4. B to notify A that
unable to fund
Alternative Currency
Advance (7.1) DD - 2 12 noon
--------------------------------------------------------------------------------
5. A to notify relevant
Borrower that B is
unable to fund
Alternative Currency
Advance (7.2) DD - 2 3pm
--------------------------------------------------------------------------------
6. Advance made to
specified account DD DD
--------------------------------------------------------------------------------
69
SCHEDULE 6
Mandatory Liquid Asset Costs Formula
1. For the purpose of this Agreement, the cost of compliance with existing
requirements of the Bank of England and/or the Financial Services
Authority (or any other authority which replaces all or any of their
functions) in respect of Advances will be calculated by the Facility Agent
in relation to each of the first day of each in respect of such Advance
and, if the Interest Period of such Advance exceeds three months, as three
calendar monthly intervals from the first day of such Term during its
duration in accordance with the following formula:
in relation to Sterling Advances:
AB+C(B-D) + E x 0.01 per cent. per annum
--------------------
100 - (A + C)
in relation to other Advances:
E x 0.01
--------
300
Where:
A is the percentage of eligible liabilities (assuming these to be in
excess of any stated minimum) which the Facility Agent is from time
to time required to maintain as an interest free cash ratio deposit
with the Bank of England to comply with cash ratio requirements;
B is the percentage rate per annum at which sterling deposits are
offered by the Facility Agent in accordance with its normal
practice, for a period equal to (a) the relevant Term (or, as the
case may be, remainder of such Term in respect of the relevant
Advance) or (b) three months, whichever is the shorter, to a leading
bank in the London Interbank Market at about 11.00 a.m. in a sum
approximately equal to the amount of such Advance;
C is the percentage of eligible liabilities which the Facility Agent
is required from time to time to maintain as interest bearing
special deposits with the Bank of England;
D is the percentage of eligible liabilities which the Facility Agent
is required from time to time to maintain as interest bearing
special deposits with the Bank of England;
E is the rate payable by the Facility Agent to the Financial Services
Authority pursuant to the Fees Regulations (but, for this purpose,
the figure at paragraph 2.03b of the Fees Regulations (but, for this
purpose, the figure at paragraph 2.03b of the Fees Regulations shall
be deemed to be zero) and expressed in pounds per (pound)1,000,000
of the Fee Base of the Facility Agent.
2. For the Purpose of this Schedule:
(a) "eligible liabilities" and "special deposits" shall bear the
meanings as ascribed to them from time to time under or pursuant to
the Bank of England Act 1988 or (as appropriate) by the Bank of
England;
(b) "Fee Regulations" means the Banking Supervision (Fees) Regulations
1998 or such
70
other regulations as may be in force from time to time in respect of
the payment of fees for banking supervision; and
(c) "Fee Base" shall bear the meaning ascribed to it, and shall be
calculated in accordance with, the Fees Regulations.
3 The percentage used in A and C above shall be those required to be
maintained on the first day of the relevant period as determined in
accordance with B above.
4 In application of the above formula, A, B, C and D will be included in the
formula as figures and not as percentages e.g. if A is 0.5 per cent. and B
is 12 per cent., AB will be calculated as 0.5 x 12 and not as 0.5 per
cent. x 12 per cent.
5 Calculations will be made on the basis of a 365 day year (or, if market
practice differs, in accordance with market practice).
6 A negative result obtained by subtracting D from B shall be taken as zero.
7 The resulting figures shall be rounded upwards, if not already such a
multiple, to the nearest whole multiple of 0.01 per cent. per annum.
8 Additional amounts calculated in accordance with this Schedule are payable
on the last day of the Term to which they relate.
9 The determination of the Additional Costs by the Facility Agent in
relation to any period shall, in the absence of manifest error, be
conclusive and binding on all of the parties hereto.
10 The Facility Agent may from time to time, after consultation with the
Borrower and the Banks, determine and notify to all parties any amendments
or variations which are required to be made to the formula set out above
in order to comply with any requirements from time to time imposed by the
Bank of England or the Financial Services Authority (or any other
authority which replaces all or any of their functions) in relation to
Advances (including any requirements relating to sterling primary
liquidity) and, any such determination shall, in the absence of manifest
error, be conclusive and binding on all the parties hereto.
71
SCHEDULE 7
Form of Subsidiary Borrower's Accession Memorandum
To: Lloyds Bank Plc Capital Markets
From: [proposed Subsidiary Borrower] and United News & Media Plc as Obligor's
Agent
Date: [o ]
Dear Sirs,
Re $240,000,000 Multicurrency Revolving Credit Agreement dated May 1999 (the
"Agreement")
1. We hereby give you notice that we wish [proposed Borrower] of [address,
facsimile] a company incorporated in [o ] to become a Borrower
pursuant to clause 26 (Accession and cessation of Subsidiary Borrowers) of
the Agreement.
2. As contemplated by the provisions of the Agreement we [proposed Borrower],
shall accordingly become entitled to utilise the Facility available to the
Subsidiary Borrower(s) under the Agreement in accordance with the terms
and conditions thereof and undertake with each of the Finance Parties and
each of the Obligors to be bound by the terms and conditions of the
Agreement as if we were one of the existing Borrowers thereunder.
3. We confirm that at the date hereof the representations set out in clause
20.1 (Continuing representations), of the Agreement are, save as otherwise
agreed by the Banks, true and that so far as we are aware no Default has
occurred which has not been remedied or waived.
4. We enclose herewith in respect of [proposed Subsidiary Borrower] the
documents and evidence listed in Schedule 8 (Documents to accompany
Subsidiary Borrower's Accession Memorandum).
5. Unless expressly provided for, or the context otherwise requires, terms
and expressions used in the Agreement shall have the same meanings when
used herein.
6. This document shall be governed by, and construed in accordance with,
English law.
7. [We irrevocably agree for the benefit of each of the Finance Parties that
the courts of England shall have jurisdiction to hear and determine any
suit, action or proceeding, and to settle any disputes, which may arise
out of or in connection with this document and for the purposes of any
suit, action or proceeding arising out of or in connection with this
document we irrevocably submit to the jurisdiction of the courts of
England and hereby appoint United News & Media Plc of Xxxxxxx Xxxxx, 000
Xxxxxxxxxxx Xxxx, Xxxxxx XX0 0XX as our agent to receive service of
process in respect of any such suit action or proceeding.]*
8. [We irrevocably waive any objection which we may have now or hereafter to
the courts of England being nominated as the forum to hear and determine
any suit, action or proceeding, and to
72
settle any disputes, which may
arise out of or in connection with this document and any claim that such
court is not a convenient or appropriate forum.]*
9. [The submission to the jurisdiction of the courts of England shall not
(and shall not be construed so as to) limit the right of the Facility
Agent and the Banks to take proceedings against us in whatsoever
jurisdictions shall to it or them seem fit nor shall the taking of
proceedings in any one or more jurisdictions preclude the taking of
proceedings in any other jurisdiction (whether concurrently or not) and to
the extent permitted by applicable law.]*
10. [PLEASE NOTE - AS WE ARE INCORPORATED IN [o ] AND NOT
INCORPORATED IN ENGLAND AND WALES IT IS IMPORTANT THAT EACH BANK, WHEN
DETERMINING WHETHER TO GIVE ITS APPROVAL TO OUR ACCESSION TO THE
AGREEMENT, CONSIDERS THE IMPLICATIONS (IF ANY) THAT MAY ARISE AS A RESULT
THEREOF, PAYING PARTICULAR REGARD TO CLAUSE 16 (TAXES), OUR OBLIGATIONS
THEREUNDER AND THE DEFINITION OF "QUALIFYING BANK" AT CLAUSE 1.1
(DEFINITIONS)]
Yours faithfully,
...............................
for and on behalf of
[proposed Subsidiary Borrower]
...............................
for and on behalf of
UNITED NEWS & MEDIA PLC
(on behalf of the Obligors)
*Delete if Acceding Subsidiary Borrower is incorporated in England and Wales
To: [proposed Subsidiary Borrower] and United News & Media Plc
From: Lloyds Bank Plc Capital Markets
Date: [o ]
We acknowledge receipt of a Subsidiary Borrower's Accession Memorandum dated [o
] and agree to the terms thereof and confirm herewith that we have received from
you each of the documents mentioned in Schedule 8 (Documents to accompany
Subsidiary Borrower's Accession Memorandum) to the Agreement and that such
documents are in form and substance satisfactory to us. Accordingly, the
proposed Subsidiary Borrower has become a Subsidiary Borrower under the
Agreement.
..............................
For and on behalf of
LLOYDS BANK PLC CAPITAL MARKETS
(on behalf of the Finance Parties)
73
SCHEDULE 8
Documents to Accompany Subsidiary Borrower's Accession Memorandum
1. The proposed Subsidiary Borrower shall deliver:
1.1 A Certified Copy of its constitutive documents.
1.2 A Certified Copy of its board resolution:
1.2.1 approving the execution, delivery and performance by the
proposed Borrower of a Subsidiary Borrower Accession
Memorandum in the form set out in Schedule 7 (Form of
Subsidiary Borrower's Accession Memorandum) and each of the
Finance Documents to which it is expressed to be a party and
other documents to be delivered pursuant thereto and the terms
and conditions thereof and authorising a named person or
persons to sign the Subsidiary Borrower's Accession
Memorandum, the Finance Documents and such other documents and
to give any notices on behalf of the proposed Subsidiary
Borrower in connection with such Finance Documents, or to give
such notices, to another person or persons; or
1.2.2 appointing a committee of the directors of the proposed
Subsidiary Borrower with authority to give the approvals and
authorisations referred to in (i) above on behalf of the board
of directors of the proposed Subsidiary Borrower,
and, in the case of 1.2.2 above, a Certified Copy of a resolution of
the committee of directors referred to in (ii) above giving the
approvals and authorisations referred to in (i) above.
1.3 A list of its Authorised Signatories.
1.4 A certificate of an Authorised Signatory of the proposed Subsidiary
Borrower confirming that neither the execution and delivery of the
Subsidiary Borrower's Accession Memorandum and the Finance Documents
to which the proposed Subsidiary Borrower is expressed to be a party
nor the exercise of the proposed Subsidiary Borrower's rights, and
the performance of the proposed Subsidiary Borrower's obligations,
under such Subsidiary Borrower's Accession Memorandum and Finance
Documents would result in any breach of the proposed Subsidiary
Borrower's constitutive documents if the proposed Borrower were to
utilise the Facility in an aggregate amount of equal to the Total
Commitments on the date hereof.
1.5 An opinion of the proposed Subsidiary Borrower's English counsel
addressed to the Facility Agent and acceptable to the Banks.
2. In relation to any proposed Borrower not incorporated in any part of the
United Kingdom:
2.1 evidence that United News & Media Plc has agreed to act as the
proposed Subsidiary Borrower's service of process agent; and
74
2.2 an opinion of the proposed Subsidiary Borrower's local counsel
addressed to the Facility Agent and acceptable to the Banks.
75
SCHEDULE 9
Form of Subsidiary Borrower's Cessation Notice
To: Lloyds Bank Plc Capital Markets
Dated:
Dear Sirs
$240,000,000 MULTI-CURRENCY REVOLVING CREDIT FACILITY - UNITED NEWS & MEDIA PLC
AND OTHERS
1. We confirm that, [name of retiring Subsidiary Borrower] is under no
obligation (whether actual or contingent) to make any payment under the
Facility Agreement, and that no Default has occurred under the Agreement
which (in either case) has not been remedied.
2. Accordingly, pursuant to clause 26.3 (Cessation of Subsidiary Borrower) of
the Facility Agreement and with effect from your receipt of this notice,
[name of retiring Subsidiary Borrower] shall cease to be a Subsidiary
Borrower under the Agreement.
Yours faithfully
..............................
for and on behalf of
UNITED NEWS & MEDIA PLC
76
SCHEDULE 10
Form of Compliance Certificate
From: United News & Media PLC
To: Lloyds Bank PLC Capital Markets
Date:[o ]
Dear Sirs,
Re: $240,000,000 Multicurrency Revolving Credit Agreement dated May 1999 (the
"Facility Agreement")
1. We are writing to you in your capacity as Facility Agent under the
Facility Agreement.
2. We refer to (a) the [relevant financial statements delivered pursuant to
clause 21.1.1/21.1.2] and 21.1.2 clause 20.2.3 (Financial condition of the
Group) of the Facility Agreement and confirm that in respect of the
[relevant period ended [o ]], Consolidated Profit Before
Interest and Tax was [o ] and Consolidated Net Finance Charges were
[o ],
3. We therefore confirm that the [financial condition] referred to in clause
22 (Financial condition of the Group) was satisfied as at [o ].
4. *[4. The Adjusted Share Capital and Reserves is: [o ]].
5. This Compliance Certificate relates to the period ended, [o ]
and is given on the basis of the accounting information contained in the
above referred to financial statements.
6. Terms used in this Compliance Certificate and not otherwise defined shall
bear the same meaning as in the Facility Agreement.
7. This Compliance Certificate is governed by and shall be construed in
accordance with English law.
Yours faithfully
Signed:[Director]
UNITED NEWS & MEDIA PLC
*Only required when the Compliance Certificate relates to the Original
Borrower's annual audited financial statement.
77
EXECUTION PAGES
The Borrower
UNITED NEWS & MEDIA PLC
By:
The Original Subsidiary Borrower
UNITED FINANCE LIMITED
By:
The Guarantor
UNITED NEWS & MEDIA PLC
By:
The Facility Agent
LLOYDS BANK PLC Capital Markets
By:
The Banks
LLOYDS BANK PLC
By:
78
