EXHIBIT 4.1
CONFORMED COPY
LOAN AGREEMENT
for
Facilities of up to US$400,000,000
to
CORDIANT COMMUNICATIONS GROUP PLC
and others
Arranged by
THE BANK OF NEW YORK
and
HSBC INVESTMENT BANK PLC
Agent
HSBC INVESTMENT BANK PLC
Xxxxxx Xxxx
London
CONTENTS
Clause Heading Page
1 Purpose and definitions.............................................1
1.1 Purpose.............................................................1
1.2 Definitions.........................................................2
1.3 Headings...........................................................26
1.4 Construction of certain terms......................................26
1.5 Majority Banks.....................................................27
1.6 Agent's opinion....................................................27
2 The Facilities.....................................................27
2.1 Amount.............................................................27
2.2 Obligations several................................................28
2.3 Interests several..................................................28
2.4 Maximum outstandings...............................................28
3 Conditions.........................................................29
3.1 Documents and evidence required....................................29
3.2 General conditions precedent.......................................29
3.3 Waiver of conditions precedent.....................................30
3.4 Notification.......................................................30
4 The Facilities; Currencies.........................................30
4.1 Drawdown of Advances...............................................30
4.2 Notification to Banks of Revolving Credit Advances and the
Conversion Advance.................................................31
4.3 Amount and Term of Revolving Credit Advances.......................31
4.4 Amount and Term of Swingline Advances..............................32
4.5 Selection of currencies............................................32
4.6 Limit on currencies; non-availability..............................32
4.7 Facility B conversion option.......................................32
4.8 The Termination Dates..............................................33
4.9 Application of proceeds............................................33
4.10 Information........................................................33
4.11 Refinancing of the Existing Group Facilities following a Relevant
Acceleration Notice and the refinancing of the Existing Lighthouse
Facilities.........................................................34
4.12 Refinancing of the Existing Group Facilities and the Existing
Lighthouse Facilities following a No Consent Notice or a Unanimous
Consent Notice.....................................................34
4.13 Refinancing of the Existing Lighthouse Facilities following a
Consent Notice.....................................................35
4.14 Operation of the Facilities and the Existing Group Facilities
following a Consent Notice.........................................35
5 Interest; alternative interest rates...............................36
5.1 Calculation of Margin..............................................36
5.2 Interest rate for Revolving Credit Advances........................38
5.3 Interest rate for Swingline Advances...............................38
5.4 Interest rate and Interest Periods for the Conversion Advance......38
5.5 Interest for late payment..........................................39
5.6 Notification of interest rate......................................40
5.7 Reference Bank quotations..........................................40
5.8 Market disruption; non-availability................................41
6 The Overdraft Facility and the Swingline Facility..................42
6.1 The Overdraft Facility.............................................42
6.2 Terms and conditions...............................................42
6.3 Utilisation, interest and repayment................................42
6.4 Set off under Overdraft Facility...................................42
6.5 Set off under Swingline Facility...................................43
6.6 Swingline Letter of Credit Applications............................43
6.7 L/C Application....................................................44
6.8 Amount of Swingline Letters of Credit..............................44
6.9 Swingline Letter of Credit Commission..............................44
6.10 Notification of demand under a Swingline Letter of Credit..........45
6.11 Conversion of Swingline Letter of Credit to Swingline Advance......45
6.12 Payment by the Banks to Swingline Bank.............................45
6.13 Default by Banks in payment to Swingline Bank......................46
6.14 Reduction of Swingline Letter of Credit Facility...................46
7 Indemnity of Overdraft Bank and Swingline Bank.....................46
7.1 Shortfall notification in relation to Swingline Advances and
Utilisations.......................................................46
7.2 Payment by Banks...................................................47
7.3 Indemnity from Borrowers in relation to Swingline Advances and
Utilisations.......................................................47
7.4 Counter-indemnity for Swingline Letters of Credit..................47
7.5 Rights of contribution and subrogation of Swingline Borrower.......48
7.6 Waiver of defences of Swingline Borrower...........................49
7.7 Continuing indemnity of Swingline Borrower.........................49
7.8 Additional security................................................49
7.9 Preservation of rights.............................................49
8 Repayment, prepayment and cancellation.............................49
8.1 Repayment of Revolving Credit Advances.............................49
8.2 Repayment of Swingline Advances....................................50
8.3 Repayment of the Conversion Advance................................50
8.4 Voluntary prepayment...............................................50
8.5 Additional voluntary prepayment....................................50
8.6 Mandatory prepayment/reduction.....................................51
8.7 Amounts payable on prepayment......................................55
8.8 Notice of prepayment...............................................55
8.9 Cancellation of Commitments........................................55
8.10 Allocation of reduction of commitments.............................55
9 Fees and expenses..................................................55
9.1 Fees...............................................................55
9.2 Expenses...........................................................57
9.3 Value Added Tax....................................................57
9.4 Stamp and other duties.............................................57
10 Payments and Taxes; accounts and calculations......................57
10.1 No set-off or counterclaim; distribution to the Banks..............57
10.2 Payments by the Banks..............................................58
10.3 Non-Banking Days...................................................58
10.4 Agent may assume receipt...........................................58
10.5 Grossing-up for Taxes..............................................58
10.6 Exceptions to gross-up.............................................59
10.7 Qualifying Banks...................................................61
10.8 US Tax forms.......................................................61
10.9 Claw-back of tax benefit...........................................62
10.10 Bank accounts......................................................63
10.11 Partial payments...................................................63
10.12 Calculations.......................................................64
10.13 Certificates.......................................................64
10.14 Effect of monetary union...........................................64
10.15 Continuation of the Conversion Advance in Sterling or euros........65
11 Representations and warranties.....................................65
11.1 Representations and warranties.....................................65
11.2 Repetition.........................................................70
12 Undertakings.......................................................70
12.1 Positive undertakings..............................................70
12.2 Negative undertakings..............................................75
13 Financial covenants................................................79
13.1 Covenants..........................................................79
13.2 Original Accounting Principles.....................................80
14 Events of Default..................................................80
14.1 Events of Default..................................................80
14.2 Acceleration.......................................................85
14.3 Demand basis.......................................................85
15 Indemnities........................................................86
15.1 Miscellaneous indemnities..........................................86
15.2 Currency of account; currency indemnity............................86
15.3 ECB reserve requirements...........................................87
16 Unlawfulness and increased costs; mitigation.......................87
16.1 Unlawfulness.......................................................87
16.2 Increased costs....................................................88
16.3 Exceptions.........................................................89
16.4 Mitigation.........................................................90
16.5 Regulation D Costs.................................................90
17 Set-off and pro rata payments......................................91
17.1 Set-off ..........................................................91
17.2 Pro rata payments..................................................91
17.3 No release.........................................................92
17.4 No charge..........................................................92
18 Assignment, substitution, lending offices, Additional Borrowers,
Additional Guarantors and Affiliates of Banks......................92
18.1 Benefit and burden.................................................92
18.2 No assignment by Borrower..........................................92
18.3 Substitution.......................................................92
18.4 Limitation on certain obligations..................................93
18.5 Reliance on Substitution Certificate...............................94
18.6 Authorisation of Agent.............................................94
18.7 Construction of certain references.................................94
18.8 Lending offices....................................................94
18.9 Disclosure of information..........................................94
18.10 Restrictions on novations..........................................95
18.11 Additional Borrowers and Additional Overdraft Borrowers............95
18.12 Additional Guarantors..............................................96
18.13 The Parent as Borrowers' agent.....................................96
18.14 Amendments binding.................................................97
18.15 Affiliates of Banks................................................97
19 Arranger, Agent, Security Trustee and Reference Banks..............98
19.1 Appointment of Agent...............................................98
19.2 Agent's actions....................................................98
19.3 Agent's duties.....................................................98
19.4 Agent's rights.....................................................99
19.5 No liability of Arrangers, Security Trustee, Agent, Swingline
Bank and Overdraft Bank...........................................100
19.6 Non-reliance on Arrangers, Security Trustee, Agent, Swingline
Bank or Overdraft Bank............................................101
19.7 No Responsibility on Arrangers, the Security Trustee, the Agent,
the Swingline Bank or the Overdraft Bank for any Borrower's
performance.......................................................101
19.8 Reliance on documents and professional advice.....................102
19.9 Other dealings....................................................102
19.10 Rights of Agent, Swingline Bank, Overdraft Bank, Security
Trustee and Arrangers as Bank; no partnership.....................102
19.11 Amendments; waivers...............................................102
19.12 Reimbursement and indemnity by Banks..............................103
19.13 Retirement of Agent...............................................104
19.14 Retirement of Overdraft Bank and Swingline Bank...................105
19.15 Change of Reference Banks.........................................105
20 Notices and other matters.........................................105
20.1 Notices 105
20.2 Notices through the Agent.........................................106
20.3 No implied waivers, remedies cumulative...........................107
20.4 Counterparts......................................................107
20.5 Third Party Rights................................................107
21 Governing law and jurisdiction....................................107
21.1 Law .........................................................107
21.2 Submission to jurisdiction........................................107
21.3 Agent for service of process......................................108
Schedule
Schedule 1 Part A - Original Borrowers.....................................109
Part B - Original Guarantors...............................................110
Part C - Original Overdraft Borrowers......................................113
Part D - Additional Guarantors.............................................115
Schedule 1 The Banks and their Commitments.................................116
Schedule 1 Part A - Form of Drawdown Notice................................117
Part B - Form of L/C Application...........................................118
Schedule 1 Part A - Documents and evidence required as conditions
precedent to the delivery of the first Drawdown Notice in
respect of the Facilities.........................................119
Part B - To be delivered prior to the delivery of the first Drawdown
Notice in respect of an Advance to be used to refinance the
Existing Lighthouse Facilities or to pay costs and expenses
incurred in connection with the Lighthouse Acquisition............121
Part C - Documents and evidence to be delivered by each Additional
Guarantor.........................................................122
Part D - Documents and evidence to be delivered by an Additional Borrower
or Additional Overdraft Borrower..................................124
Part E - Form of Director's Certificate regarding financial assistance.....126
Schedule 1 Calculation of Additional Cost..................................129
Schedule 6 Form of Substitution Certificate Part A (single transfers)......131
Part B (global form).......................................................136
Schedule 1 Permitted Encumbrances..........................................142
Schedule 1 - Part A Borrower Accession Agreement...........................143
Part B - Overdraft Borrower Accession Agreement............................145
Schedule 2 Permitted Guarantees............................................147
Schedule 1 Borrower's Compliance Certificate...............................149
Schedule 2 Form of Guarantee to be given by new Guarantors.................151
Schedule 1 Permitted Acquisitions..........................................163
Schedule 1 Preference shares issued by (or to be issued) by Lighthouse
and its Subsidiaries as deferred consideration..................165
THIS AGREEMENT is dated 4 July 2000 and made BETWEEN:
(1) CORDIANT COMMUNICATIONS GROUP PLC as the Parent;
(2) THE COMPANIES whose names, registered numbers (if any) and registered
offices are set out in part A of schedule 1 as Original Borrowers and the
companies whose names, registered numbers (if any) and registered offices
are set out in part C of schedule 1 as Original Overdraft Borrowers;
(3) THE BANK OF NEW YORK and HSBC INVESTMENT BANK PLC as Arrangers;
(4) THE BANKS AND FINANCIAL INSTITUTIONS whose names and addresses are set
out in schedule 2;
(5) HSBC INVESTMENT BANK PLC as Agent and Security Trustee;
(6) THE BANK OF NEW YORK as Swingline Bank; and
(7) HSBC BANK PLC as Overdraft Bank.
IT IS AGREED as follows:
1 Purpose and definitions
1.1 Purpose
This Agreement sets out the terms and conditions upon and subject to
which:
(a) the Banks agree, according to their several obligations, to make
available to the Borrowers a revolving credit facility of up to
$225,000,000 or its equivalent in Optional Currencies, the
Swingline Bank agrees to make available to the Swingline Borrower
a swingline facility (including a letter of credit facility) of
up to $18,000,000 and the Overdraft Bank agrees to make available
to the Overdraft Borrowers an overdraft facility of up to L
6,000,000, subject to an overall limit on all such facilities of
$225,000,000, to be used as follows:
(i) to refinance the Existing Lighthouse Facilities and the
Existing Group Facilities in full (but not part only);
(ii) to pay the costs and expenses incurred in connection with
the Lighthouse Acquisition; and
(iii) or other general corporate purposes;
(b) the Banks agree, according to their several obligations, to make
available to the Borrowers a further revolving credit facility
(with a conversion option) of up to $175,000,000 or its
equivalent in Optional Currencies, to be used as follows:
1
(i) to refinance the Existing Lighthouse Facilities and the
Existing Group Facilities in full (but not part only);
(ii) to pay the costs and expenses incurred in connection with
the Lighthouse Acquisition; and
(iii) for other general corporate purposes.
1.2 Definitions
In this Agreement, unless the context otherwise requires:
"Additional Borrower" means any wholly owned Subsidiary of the Parent
which becomes a Borrower in accordance with clause 18.11;
"Additional Cost" means, in relation to any period, a percentage
calculated for such period at an annual rate determined in accordance
with schedule 5;
"Additional Overdraft Borrower" means any wholly owned Subsidiary of
the Parent which becomes an Overdraft Borrower in accordance with
clause 18.11;
"Adjusted PBIT" means, in respect of a period, PBIT for that period
plus the Group's depreciation for that period less Property Payments in
respect of that period plus (in relation to the 12 months periods
ending 31 December 2000 and 30 June 2001, but only to the extent not
already included in the PBIT or depreciation of the Group for that
period) such amount as is necessary to give pro forma effect to the
Lighthouse Acquisition as if such acquisition had occurred on the first
day of such period (such pro forma adjustments to the Group's PBIT and
depreciation being calculated by dividing the relevant amounts which
have been included in the relevant financial statements of the Group in
respect of Lighthouse and its Subsidiaries which have been acquired
pursuant to the Lighthouse Acquisition by the number of months falling
in the relevant period for which Lighthouse and its Subsidiaries which
are acquired pursuant to the Lighthouse Acquisition were members of the
Group and multiplying the results by twelve;
"Advance" means each Revolving Credit Advance, each Swingline Advance
and the Conversion Advance;
"Affiliate" means, in relation to any person, a Subsidiary or a Holding
Company of that person and any other Subsidiary of a Holding Company of
that person;
"Agent" means HSBC Investment Bank plc or such other person as may be
appointed agent for the Banks pursuant to clause 19.13;
"Aggregate Net Proceeds" means in relation to an External Refinancing,
Flotation, Trade Sale or other Permitted Restricted Asset Disposal, the
total cash proceeds received in Dollars (or if not received in Dollars,
their Dollar equivalent at the date of receipt) by any member of the
Group (including any deferred or purchase price adjustment proceeds
received by such member of the Group) less:
2
(a) the reasonable costs, fees and expenses incurred by such member
of the Group in connection with such External Refinancing,
Flotation or Trade Sale or other Permitted Restricted Asset
Disposal, as the case may be;
(b) (in the case of Flotation, Trade Sale or other Permitted
Restricted Asset Disposal) a reasonable provision for all Taxes
(if any) incurred by the relevant member of the Group in
connection with such Flotation, Trade Sale or other Permitted
Restricted Asset Disposal, as the case may be;
(c) (in the case of Flotation, Trade Sale or other Permitted
Restricted Asset Disposal) any amount used to repay any
Indebtedness of any member of the Group arising from, directly
related to or as a direct consequence of, such Flotation, Trade
Sale or Permitted Restricted Asset Disposal, as the case may be,
secured on the relevant asset; and
(d) any other amount which the Agent (acting on the instructions of
the Majority Banks) may agree shall be excluded from the total
cash proceeds received in respect of the relevant External
Refinancing, Flotation, Trade Sale or other Permitted Restricted
Asset Disposal in determining the relevant Aggregate Net
Proceeds;
"Arranger" means each of The Bank of New York of Xxx Xxxxxx Xxxxxx,
Xxxxxx X00 0XX and HSBC Investment Bank plc of Thames Exchange, 00
Xxxxx Xxxxxx Xxxxx, Xxxxxx, XX0X 0XX and their respective successors in
title;
"Auditors" means KPMG Audit Plc or such other auditing firm of
international standing as may be approved by the board of directors of
the Parent after prior consultation with the Agent;
"Authorised Officer" means that officer or officers of the Parent or
the Swingline Borrower authorised to sign Compliance Certificates,
Drawdown Notices, L/C Applications and any other notices, requests or
confirmations referred to in this Agreement or relating to the
facilities granted pursuant to this Agreement;
"Availability Period" means the Facility A Availability Period or the
Facility B Availability Period;
"Banking Day" means:
(a) when LIBOR is to be determined or payments made in relation to
euros or a National Currency Unit, a TARGET Day; and
(b) for all other purposes a day (other than Saturday or Sunday) on
which banks are open for business in New York City and London and
(in the case of interest rate fixing and payments in relation to
Optional Currencies) the principal financial centre in the
jurisdiction of the Optional Currency concerned;
"Banks" means the banks and financial institutions listed in schedule 2
and includes their successors in title and Substitutes;
3
"Bid Bond" means a bid, performance or advance payment bond or
guarantee issued by a financial institution to a client or prospective
client of a member of the Group in connection with a contract for which
that member of the Group is bidding or which has been awarded to that
member of the Group;
"Borrowed Money" means Indebtedness in respect of (i) money borrowed or
raised and debit balances at banks (provided that for the purposes of
calculating the amount of any such Indebtedness the calculation shall
be net of credit balances which together with the relevant debit
balances are subject to contractual netting arrangements), (ii) any
bond, note, loan stock, debenture or similar debt instrument, (iii)
acceptance or documentary credit facilities, (iv) receivables sold or
discounted (otherwise than on a non-recourse basis), (v) deferred
payments for assets or services acquired where the deferred payment is
arranged primarily as a method of raising finance or financing the
acquisition of the asset or services acquired (excluding credit granted
in the ordinary course of trading for a period not exceeding 120 days
(or in the case of Greece, Spain and Italy, not exceeding 180 days) and
deferred consideration payments in respect of acquisitions or
investments permitted in accordance with clause 12.2(f) and the
deferred consideration obligations set out in schedule 13), (vi) the
capital element of Finance Leases and hire purchase contracts, (vii)
(except for the purposes of the definition of "Consolidated Gross
Borrowings" and clause 14.1(f)) Derivatives Contracts, (viii) any other
transaction (including without limitation forward sale or purchase
agreements where the deferred payment is arranged primarily as a method
of raising finance or financing the acquisition of the asset or
services acquired) having the commercial effect of a borrowing or
raising of money or of any of (ii) to (vii) above and (ix) guarantees
in respect of Indebtedness of any person falling within any of (i) to
(viii) above;
"Borrower" means each of the Parent, the Original Borrowers and the
Additional Borrowers and/or the Swingline Borrower and/or the Overdraft
Borrowers, as the context requires;
"Borrower Accession Agreement" means a borrower accession agreement in
the form of part A of schedule 8;
"Capital Expenditure" means expenditure treated as capital expenditure
pursuant to the Original Accounting Principles;
"Code" means the United States Internal Revenue Code of 1986 as amended
from time to time, and the regulations promulgated and rulings issued
thereunder;
"Collateral Instruments" means notes, bills of exchange, certificates
of deposit and other negotiable and non-negotiable instruments,
guarantees, and any other documents or instruments which contain or
evidence an obligation (with or without security) to pay, discharge or
be responsible directly or indirectly for any Indebtedness or
liabilities of any Borrower or any other person liable and includes
Encumbrances;
"Commitment" means, in relation to a Bank and in respect of either
Revolving Credit Facility, at any relevant time the amount set opposite
its name in relation to the
4
relevant Revolving Credit Facility in schedule 2 and/or, in the case of
a Substitute, the amount novated in relation to the relevant Revolving
Credit Facility as specified in the relevant Substitution Certificate,
as reduced, in each case, by any relevant term of this Agreement and so
that, if at such time the Total Commitments have been reduced to zero,
references to a Bank's Commitment shall be construed as a reference to
that Bank's Commitment immediately prior to such reduction to zero and,
in relation to the Swingline Bank and the Overdraft Bank, their
obligations to make available the Swingline Facility or the Overdraft
Facility respectively;
"Compliance Certificate" means a certificate substantially in the form
set out in schedule 10 as to the compliance or otherwise with the
financial covenants set out in clause 13.1 issued by an Authorised
Officer;
"Consent Notice" means copies, certified as true, complete and
up-to-date copies by an Authorised Officer of the Parent, of:
(a) a letter from the agent under the Existing Group Facilities
Agreement, confirming that consents have been granted under the
Existing Group Facilities Agreement to permit the Lighthouse
Acquisition and the entry into of this Agreement and the Security
Documents (and the Borrowed Money and guarantees to be incurred
or granted thereunder); and
(b) a waiver and amendment letter relating to the Existing Group
Facilities Agreement duly executed by the agent under the
Existing Group Facilities Agreement and the Parent,
in each case in form and substance satisfactory to the Agent;
"Consolidated Gross Borrowings" means the aggregate principal or
capital amount of all Borrowed Money incurred by the Group (including
any fixed or minimum premium payable on final repayment) plus the
aggregate principal element of Borrowed Money secured by any
Encumbrance over all or any part of the undertaking, property, assets,
rights or revenues of any member of the Group except that:
(i) moneys owing by one member of the Group to another member of the
Group shall not be taken into account;
(ii) guarantees falling under paragraphs (d), (e), (f), (g), (h), (i),
(j), (k) and (l) of the definition of Permitted Guarantees shall
not be taken into account and, to avoid double counting, no
guarantee of a liability which is already taken into account
shall itself be taken into account;
(iii) no liability shall be taken into account more than once in any
computation;
(iv) Consolidated Gross Borrowings expressed in or calculated by
reference to a currency other than Sterling shall be converted
into Sterling by reference to the rate of exchange used by the
Parent for the conversion of such currency in accordance with the
management policy of converting such amounts on a daily
5
basis or, if the relevant currency was not thereby involved, by
reference to the rate of exchange or approximate rate of
exchange ruling on such date and determined on such basis as the
Agent may determine or approve;
(v) the principal amount of Consolidated Gross Borrowings deemed to
be outstanding in relation to Finance Leases or hire purchase
agreements shall be the present value of the minimum lease or
hire payments discounted at the interest rate implicit in the
relevant lease or hire purchase agreement;
(vi) the Indebtedness of members of the Group to the ITVA secured by
fixed charges over receivables of the Group in the United
Kingdom shall not be taken into account;
(vii) Indebtedness in respect of cash collateralised guarantees issued
by a Bank or any of its associates on behalf of the Group to
media authorities shall not be taken into account;
(viii) Indebtedness of the Group in respect of the guarantees issued by
banks on behalf of the Group to media authorities in Korea shall
not be taken into account; and
(ix) the Zenith Guarantee shall not be taken into account;
"Consolidated Gross Interest Expenditure" means, in respect of a
period, the aggregate amount (calculated on a consolidated basis) of
all continuing, regular or periodic costs, charges and expenses paid or
payable during that period in respect of Consolidated Gross Borrowings,
including:
(a) any acceptance commission paid or payable in respect of any
bills of exchange or other negotiable instruments;
(b) any initial issue discount allowed on the issue of debentures
(to the extent relating to that period when amortised over the
term of such debentures); and
(c) the interest component of rentals under Finance Leases,
but excluding:
(i) arrangement and other one-off fees (to the extent relating to
that period when amortised over the term of the relevant
Consolidated Gross Borrowing);
(ii) amounts discounted for FRS12 or SSAP24 purposes to the extent
they are non-cash items; and
(iii) the arrangement fees relating to the Existing Group Facility;
"Consolidated Net Interest Expenditure" means, in respect of a period,
the Consolidated Gross Interest Expenditure accrued for that period net
of credit interest accrued by the Group during such period;
6
"Contribution" means, in relation to a Bank, (i) the principal amount
of the Revolving Credit Advances and the Conversion Advance owing to
such Bank at any relevant time (or, if the context requires, the Dollar
Amount of such Revolving Credit Advances and the Conversion Advance)
and (ii) the principal amount paid by such Bank under the indemnities
contained in clauses 6 and 7 for which it has not been reimbursed at
any relevant time by the relevant Borrower;
"Conversion Advance" has the meaning given to it in clause 4.7;
"D" means Diamond Ad Ltd;
"D Acquisition" means the acquisition of D, a company incorporated in
the Republic of Korea;
"D Group" means D and its Subsidiaries as at the date of this
Agreement;
"Dangerous Substance" means any radioactive emissions, noise and any
natural or artificial substance (in whatever form) the generation,
transportation, storage, treatment, use or disposal of which (whether
alone or in combination with any other substance) gives rise to a risk
of causing harm to man or any other living organism or damaging the
Environment or public health or welfare, including (without limitation)
any controlled, special, hazardous, toxic, radioactive or dangerous
waste;
"Default" means any Event of Default or any event or circumstance which
would, upon the giving of a notice by the Agent and/or the expiry of
the relevant period and/or the fulfilment of any other condition (in
each case as specified in clause 14.1), constitute an Event of Default;
"Derivatives Contract" means a contract, agreement or transaction which
is:
i) a rate swap, basis swap, commodity swap, forward rate
transaction, commodity option, equity (or equity or other index)
swap or option, bond option, interest rate option, foreign
exchange transaction, cap, collar or floor, currency swap,
currency option or any other similar transaction; and/or
ii) any combination of such transactions,
in each case, whether on-exchange or otherwise;
"Dollar Amount" means (a) in relation to an Advance to be drawn down in
Dollars, or a Swingline Advance, the amount in Dollars so drawn down
or, in relation to a Swingline Letter of Credit, the amount of the
Outstanding L/C Liability of such Swingline Letter of Credit issued,
and (b) in relation to an Advance to be drawn down in an Optional
Currency, the amount in Dollars which was or would be required to
purchase the principal amount of that Advance in the Optional Currency
and in the amount specified in the relevant Drawdown Notice as
determined in accordance with clause 4.2, in each case as reduced by
any repayment or prepayment under this Agreement;
7
"Dollars" and "$" mean the lawful currency of the United States of
America and in respect of all payments to be made under this Agreement
in Dollars mean funds which are for same day settlement in the New York
Clearing House Interbank Payments System (or such other U.S. dollar
funds as may at the relevant time be customary for the settlement of
international banking transactions denominated in U.S. dollars);
"Drawdown Date" means the date, being a Banking Day falling within the
Availability Period of the relevant Facility, on which an Advance is or
is to be drawn down;
"Drawdown Notice" means a notice in the form or substantially in the
form of part A of schedule 3, duly completed with particulars of the
relevant Advance;
"Encumbrance" means any mortgage, charge (whether fixed or floating),
pledge, lien, hypothecation, assignment by way of security, trust
arrangement for the purpose of providing security or other security
interest of any kind securing any obligation of any person or any other
arrangement having the effect of conferring rights of set-off and
includes any agreement to create any of the foregoing;
"Environment" means all, or any of, the air (including, without
limitation, the air within buildings and the air within other natural
or man-made structures above or below ground), water (including,
without limitation, ground and surface water) and land (including,
without limitation, buildings, surface and sub-surface soil);
"Environmental Claim" means any claim by any person:
(a) in respect of any loss or liability suffered or incurred by that
person as a result of or in connection with any violation of
Environmental Law; or
(b) that arises as a result of or in connection with Environmental
Contamination and that could give rise to any remedy or penalty
(whether interim or final) that may be enforced or assessed by
private or public legal action or administrative order or
proceedings;
"Environmental Contamination" means each of the following and their
consequences:
(a) any release, discharge, emission, leakage or spillage of any
Dangerous Substance at or from any site owned, occupied or used
by any member of the Group into any part of the Environment; or
(b) any accident, fire, explosion or sudden event at any site owned,
occupied or used by any member of the Group which is directly or
indirectly caused by or attributable to any Dangerous Substance;
or
(c) any other pollution of the Environment at or from any site
owned, occupied or used by any member of the Group;
"Environmental Law" means all laws (including, without limitation,
common law), regulations, directives, codes of practice, circulars,
guidance notices and the like
8
having legal effect concerning the protection of human health, the
Environment, the conditions of the work place or the generation,
transportation, storage, treatment or disposal of Dangerous Substances
and in the case of codes of practice, circulars, guidance notices and
the like with which it is customary for persons carrying on a similar
business to the Group to comply with;
"Environmental Licence" means any authorisation required by any
Environmental Law;
"equity share capital" has the meaning given to it in Section 744 of
the Companies Xxx 0000;
"ERISA" means the Employee Retirement Income Security Act of 1974 of
the United States of America, as amended from time to time, and the
regulations promulgated and rulings issued thereunder;
"ERISA Affiliate" means any corporation or trade or business which for
purposes of Title IV of ERISA is a member of the same controlled group
as any member of the Group, or is under common control with any member
of the Group, within the meaning of Section 414(b) or (c) of the Code
and the regulations promulgated and rulings issued thereunder;
"ERISA Event" means (i)(A) any reportable event, as defined in Section
4043(c) of ERISA and the regulations issued thereunder, with respect to
a Plan, as to which PBGC has not by regulation waived the requirement
of Section 4043(a) of ERISA that it be notified within thirty days of
the occurrence of such event (provided that a failure to meet the
minimum funding standard of Section 412 of the Code or Section 302 of
ERISA shall be a reportable event for the purposes of this paragraph
regardless of the issuance of any waivers in accordance with Section
412(d) of the Code); or (B) the requirements of subsection (1) of
Section 4043(b) of ERISA (without regard to subsection (2) of such
Section) are met with respect to a contributing sponsor, as defined in
Section 4001(a)(13) of ERISA, of a Plan, and an event described in
paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is
reasonably expected to occur with respect to such Plan within the
following 30 days; (ii) the filing of a notice of intent to terminate
under Section 4041(a)(2) of ERISA in a distress termination under
Section 4041(c) of ERISA; (iii) the institution by PBGC of proceedings
under Section 4042 of ERISA for the termination of, or the appointment
of a trustee to administer, any Plan; and (iv) an engagement in a
non-exempt prohibited transaction within the meaning of Section 4975 of
the Code or Section 406 of ERISA, which upon the occurrence of any of
the events described in paragraphs (i) to (iv) (inclusive) above would
reasonably be expected to result in a material liability of any member
of the Group or any ERISA Affiliate;
"euro" means the single currency of Participating Member States of the
European Union;
"Event of Default" means any of the events or circumstances described
in clause 14.1;
9
"Existing Group Facilities" means the loan facilities governed by the
Existing Group Facilities Agreement;
"Existing Group Facilities Agreement" means an agreement dated 8
November 1999 (as amended from time to time) and made between the
Parent (1), the companies identified as such in part 1 of the first
schedule thereto as original borrowers (2), The Bank of New York and
HSBC Investment Bank plc as arrangers (3), the banks and financial
institutions named in the second schedule thereto(4), HSBC Investment
Bank plc as agent and security trustee (5), The Bank of New York as
swingline bank (6) and HSBC Bank plc as overdraft bank (7);
"Existing Lighthouse Facilities" means an agreement dated 8 July 1999
(as amended from time to time) and made between Lighthouse (1),
Lighthouse Holdings (UK) Limited (2) and First Union National Bank as
administrative agent (3);
"Expiry Date" means, in relation to a Swingline Letter of Credit, the
date expressed by the terms of such Swingline Letter of Credit to be
the date upon which such Swingline Letter of Credit expires;
"External Refinancing" means the borrowing or raising of Borrowed Money
(including, without limitation, any public or private issue of debt
securities) by any member of the Group with a view, inter alia, to
repaying and cancelling Facility B and/or the equivalent Existing Group
Facility;
"Facilities" means Facility A, Facility B, the Swingline Facility and
the Overdraft Facility;
"Facility A" means the revolving credit facility granted by the Banks
in accordance with clause 2.1(a);
"Facility A Advance" means (i) each borrowing of a portion of the
Commitments under Facility A by a Borrower or (ii) (as the context may
require) the principal amount of such borrowing for the time being
outstanding;
"Facility A Amount" means $225,000,000 reduced by (i) the Swingline
Minimum, (ii) the Facility A Decrease, (iii) the Overdraft Facility
Amount, as further reduced by any relevant provision of this Agreement;
"Facility A Availability Period" means the period from the date of this
Agreement and ending on 8 November 2004 or on such earlier date (if
any) on which the Swingline Facility, the Overdraft Facility and the
Total Commitments in respect of Facility A are all reduced to zero
under or pursuant to this Agreement;
"Facility A Decrease" means the amount by which the total of all
Swingline Advances outstanding or to be made on a particular day
together with the Outstanding L/C Liability in respect of all Swingline
Letters of Credit outstanding or to be issued on a particular day
exceeds the Swingline Minimum;
10
"Facility B" means the revolving credit facility granted by the Banks
in accordance with clause 2.1(b) with a conversion option;
"Facility B Advance" means (i) each borrowing of a portion of the
Commitments under Facility B by a Borrower or (ii) (as the context may
require) the principal amount of such borrowing for the time being
outstanding and, for the avoidance of doubt, includes the borrowing of,
or the principal amount of, the Conversion Advance;
"Facility B Amount" means $175,000,000 as reduced by any relevant
provision of this Agreement;
"Facility B Availability Period" means the period from the date of this
Agreement and ending on 7 November 2000 or on such earlier date (if
any) on which the Total Commitments in respect of Facility B are
reduced to zero under or pursuant to this Agreement;
"Federal Funds Rate" means, in relation to a Swingline Advance and a
day in a Swingline Term relating thereto or in relation to an unpaid
sum in respect of a Swingline Advance and a day on which any sum
remains outstanding, the rate per annum equal to the weighted average
of the rates on overnight Federal funds transactions with members of
the United States Federal Reserve System arranged by Federal funds
brokers, as published for that day (or if such a day is not a New York
Banking Day, for the immediately preceding New York Banking Day) by the
Federal Reserve Bank of New York or, if such a rate is not so published
for any day which is a New York Banking Day, the average of the
quotations for that day for such transactions received by the Swingline
Bank from three Federal funds brokers of recognised standing selected
by the Swingline Bank in consultation with the Borrowers;
"Finance Lease" means a lease treated as a finance lease pursuant to
applicable accounting standards at the date of this Agreement
(including SSAP 21);
"Finance Parties" means the Agent, the Arrangers, the Banks, the
Swingline Bank, the Overdraft Bank and the Security Trustee;
"First Drawdown Date" means the Banking Day on which the first Advances
are, or are to be, drawn down;
"Fiscal Half-Year" means, in respect of each Fiscal Year, each of the
periods (each comprising six successive months) ending on or about 30
June and 31 December;
"Fiscal Quarter" means each fiscal period for the Group of three
successive months beginning on the day after a Quarter Day and ending
on the following Quarter Day;
"Fiscal Year" means each fiscal period for the Group beginning on 1st
January and ending on 31 December in that year;
11
"Flotation" means the inclusion of any part of the share capital of any
member of the Group other than the Parent in the Official List of the
UK Listing Authority or the grant of permission to deal in the same in
the Alternative Investment Market or the European Association of
Dealers Automated Quotation or on any other recognised investment
exchange (as that term is used in the Financial Services Act 1986) or
in or on any other exchange or recognised market replacing any of the
same or on any other exchange or recognised market in any country;
"Funders" means the Banks, the Swingline Bank and the Overdraft Bank;
"Group" means the Parent and its Subsidiaries from time to time and
"member of the Group" means any one of them;
"Group Structure Book" means the book, in the agreed form, which sets
out the structure of the Group;
"Guarantee" means a guarantee entered into or to be entered into in
favour of the Security Trustee in the agreed form or in a form
acceptable to the Agent (acting reasonably) (and "Guarantees" shall be
construed accordingly);
"Guarantors" means the Original Guarantors together with any other
member of the Group which has entered into a Guarantee;
"Healthworld" means Healthworld Corporation;
"Healthworld Group" means Healthworld and its Subsidiaries as at the
date of this Agreement;
"Hedging Strategy" means the strategy for interest rate protection
arrangements and foreign exchange protection arrangements set out in
the Hedging Strategy Letter;
"Hedging Strategy Letter" means the agreed form letter from the Parent
to the Agent relating to hedging;
"Holding Company" means, in relation to a person, an entity of which
that person is a Subsidiary;
"Indebtedness" means any obligation for the payment or repayment of
money, whether as principal or as surety and whether present or future,
actual or contingent;
"Information Memorandum" means each version of the Information
Memorandum to be distributed by the Arrangers at the request of the
Parent in connection with this Agreement;
"Intellectual Property Rights" means any patent, trade xxxx, service
xxxx, registered design, trade name or copyright required to carry on
the business of members of the Group;
"Interest Payment Date" means the last day of an Interest Period;
12
"Interest Period" means each period for the calculation of interest in
respect of the Conversion Advance ascertained in accordance with this
Agreement;
"L/C Application" means a request from the Swingline Borrower to open a
Swingline Letter of Credit, such notice to be in the form or
substantially in the form of part B of schedule 3;
"L/C Exposure" means, in respect of any Bank and each outstanding
Swingline Letter of Credit at any time, the amount of the proportion of
the Outstanding L/C Liability under such Swingline Letter of Credit
which such Bank's Commitment bears to the Total Commitments;
"L/C Issue Date" means the date, being a Banking Day falling within the
Availability Period, when a Swingline Letter of Credit is or is to be
issued;
"LIBOR" means, in relation to a particular period, the arithmetic mean
(rounded upwards, if necessary, to five decimal places) of the London
interbank offered rates for deposits of the currency in question for a
period equal to such period at or about 11 a.m. on the Quotation Date
for such period as displayed on page 3750 of the Telerate Service (or
such other page as may replace Telerate Service page 3750 for the
purpose of displaying London interbank offered rates of leading banks
for deposits of that currency) or, if on such date the offered rates
for the relevant period of fewer than two leading banks are so
displayed, as quoted to the Agent by each of the Reference Banks at the
request of the Agent;
"Lighthouse" means Lighthouse Global Network Inc., a company
incorporated under the laws of the State of Delaware;
"Lighthouse Acquisition" means the acquisition by the Parent of
Lighthouse by means of a merger involving a share-for-share exchange
upon substantially the terms described in the Press Announcement;
"Lighthouse Information Package" means the KPMG report dated 2 June
2000 addressed to the Parent, the Parent board papers relating to the
Lighthouse Acquisition delivered to the Arrangers by the Parent and any
supplemental papers delivered to the Arrangers by the Parent, in each
case, in the agreed form;
"Majority Banks" means, at any relevant time, Banks (a) the aggregate
of whose Contributions in respect of Revolving Credit Advances and the
Conversion Advance exceeds 66-2/3 per cent of the Revolving Credit
Advances and the Conversion Advance or (b) (if neither Conversion
Advance nor any Revolving Credit Advances are outstanding under this
Agreement) the aggregate of whose Commitments exceeds 66-2/3 per cent
of the Total Commitments;
"Margin" shall be calculated in accordance with clause 5.1;
13
"Material Adverse Effect" means a material adverse effect on the
ability of the Obligors (taken as a whole) or the Parent to perform
their or its respective obligations under this Agreement or on the
financial position of the Group taken as a whole;
"Material Subsidiary" means:
(a) any Subsidiary of the Parent whose aggregate annual revenues or
attributable annual revenues are in excess of an amount equal to
5 per cent. of the consolidated revenues of the Group, in each
case as shown by the most recent audited financial statements of
such Subsidiary and the Group (respectively); and
(b) for the purposes of clauses 11 and 14 (and in addition to the
Subsidiaries of the Parent referred to in paragraph (a))
Headcount Field Marketing Limited and, following the Lighthouse
Acquisition, the companies listed in part D of schedule 1;
"Media Services Agreement" means a media services agreement dated 11
December, 1997 between the Parent (1) and Zenith (2);
"month" or "months" means a period beginning in one calendar month and
ending in the relevant later calendar month on the day numerically
corresponding to the day of the calendar month in which it started,
provided that (i) if the period started on the last Banking Day in a
calendar month or if there is no such numerically corresponding day, it
shall end on the last Banking Day in such later calendar month and (ii)
if such numerically corresponding day is not a Banking Day, the period
shall end on the next following Banking Day in such later calendar
month but if there is no such Banking Day it shall end on the preceding
Banking Day and "monthly" shall be construed accordingly;
"M.O.U." means the Memorandum of Understanding between Hyundai Merchant
Marine Co. Limited and Xx. Xxxx Hun Xxxxx, as sellers, and the Parent
relating to the D Acquisition;
"Multiemployer Plan" shall have the meaning set out in section
4001(a)(3) of ERISA;
"National Currency Unit" means, in relation to a Participating Member
State, the national currency unit of that Participating Member State;
"Net Derivatives Liability" means, at any time, the net liability (if
any) at such time of the members of the Group taken as a whole in
respect of Derivatives Contracts determined by reference to the amounts
(as determined by the Agent) which would be payable or receivable by
the members of the Group pursuant to the terms of such Derivatives
Contracts if such Derivatives Contracts were terminated at such time;
"New York Banking Day" means a day (other than Saturday or Sunday) on
which banks are open for business in New York City;
14
"No Consent Notice" means:
(a) a copy, certified as a true, complete and up-to-date copy by an
Authorised Officer of the Parent, of a letter from the agent
under the Existing Group Facilities Agreement, in form and
substance satisfactory to the Agent, confirming that the
necessary consents under the Existing Group Facilities Agreement
to permit the Lighthouse Acquisition and the entry into of this
Agreement and the Security Documents (and the Borrowed Money and
guarantees to be incurred or granted thereunder) have not been
granted; together with
(b) a certificate from an Authorised Officer of the Parent
confirming that the Existing Group Facilities will be repaid and
cancelled in full (and not part only) on the First Drawdown Date
and attaching a copy, certified as a true, complete and
up-to-date copy by an Authorised Officer of the Parent, of a
notice from the Parent to the agent under the Existing Group
Facilities Agreement of the Group's intention to repay the
Existing Group Facilities on the First Drawdown Date together
with notice of cancellation of the Existing Group Facilities on
the First Drawdown Date;
"Obligors" means the Borrowers and the Guarantors and "Obligor" means
any one of them;
"Optional Currency" means any currency, other than Dollars, which is
freely transferable, freely convertible into Dollars and dealt in on
the London Interbank Market or the London foreign exchange market;
"Original Accounting Principles" means those accounting principles,
standards and practices which were used in the preparation of the
accounts of the Parent for the financial year ended 31 December 1998
and, to the extent that they do not conflict with those principles,
standards and practices, such other accounting principles, standards
and practices as were generally acceptable in the United Kingdom on the
date of such accounts;
"Original Borrowers" means those companies listed as such in part A of
schedule 1;
"Original Guarantors" means those companies listed as such in part B of
schedule 1;
"Original Overdraft Borrowers" means those companies listed as such in
part C of schedule 1;
"Outstanding L/C Liability" means, in relation to a Swingline Letter of
Credit issued or to be issued at any time, the maximum aggregate amount
of the liability of the Swingline Bank under such Swingline Letter of
Credit at such time;
"Overdraft Bank" means HSBC Bank plc of 00-00 Xxxxxxx, Xxxxxx XX0X 0XX
and its successors in title;
15
"Overdraft Borrower Accession Agreement" means an accession agreement
in the form of part B of schedule 8;
"Overdraft Borrowers" means the Original Overdraft Borrowers and the
Additional Overdraft Borrowers;
"Overdraft Facility" means an overdraft facility of up to L6,000,000
made available to the Overdraft Borrowers by the Overdraft Bank
pursuant to clause 2.1(d);
"Overdraft Facility Amount" means, at any time, the Dollar equivalent
of L6,000,000 as reduced by any relevant provision of this Agreement;
"Parent" means Cordiant Communications Group plc (Company number
1320869), whose registered office is at 000-000 Xxxxxxxxxx Xxxxxxx,
Xxxxxx X0 0XX;
"Participating Member State" means a member state of the European Union
that has adopted or adopts the single currency in accordance with the
Treaty;
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to all or any of its functions under ERISA;
"PBIT" means, in respect of a period, the consolidated profit on
ordinary activities of the Group for that period before interest and
taxes (including (to the extent not already included and so long as the
Parent holds 50 per cent. of the equity share capital of Zenith) that
portion of the profit on ordinary activities before interest and taxes
of Zenith which is attributable to the Parent's shareholding in Zenith
but excluding profits or losses on disposals of Restricted Assets) as
shown in the audited consolidated profit and loss account provided to
the Agent under clause 12.1(e) (or, as the case may be, in the
unaudited consolidated financial statements for the relevant Fiscal
Half-Year provided to the Agent under clause 12.1(e)), provided however
that new provisions in respect of surplus property shall be excluded;
"Permitted Acquisitions" means those acquisitions set out in schedule
12;
"Permitted Encumbrances" means:
(a) any Encumbrance created pursuant to the terms of this Agreement
and/or the Security Documents;
(b) any right of set-off arising by operation of law in the ordinary
course of trading;
(c) any Encumbrance created in favour of a bank in connection with
any bona fide cash management and/or netting arrangements for
the Group;
(d) any lien arising with respect to Taxes of the Group;
(e) any Encumbrance which the Agent (acting on the instructions of
the Majority Banks) has at any time in writing agreed shall be a
Permitted Encumbrance;
16
(f) the Encumbrances listed in schedule 7 securing the amount set
opposite the relevant Encumbrance in schedule 7, but not any
increase in such amount;
(g) any Encumbrance given by a member of the Group in connection
with bona fide arrangements for the maintenance of media
accreditation of any member of the Group provided that such
members of the Group purchase media only in accordance with
normal industry practice;
(h) until repayment of the Existing Group Facilities, any right of
set-off in relation to the Existing Facilities;
(i) any Encumbrance granted by one member of the Group to another
other than by an Obligor to a member of the Group which is not
an Obligor;
(j) (other than Encumbrances over shares in or assets of Lighthouse
and its Subsidiaries which are acquired pursuant to the
Lighthouse Acquisition) any Encumbrance on assets acquired after
the date of this Agreement or on assets of a company which
becomes a Subsidiary after the date of this Agreement (which
Encumbrances were in existence at the date of acquisition or
such company becoming a Subsidiary, but were not created in
contemplation thereof) but in each case only if the maximum
amount thereby permitted from time to time to be secured has not
been increased on account of, or since the date of, the
acquisition of such asset or the date on which such company
becomes a Subsidiary and provided that the same is discharged in
full within 6 months of the date of the relevant acquisition or
such company becoming a Subsidiary;
(k) any Encumbrance (a "New Encumbrance") created by any member of
the Group in substitution for any Encumbrance referred to in
paragraph (f) above (an "Existing Encumbrance") provided that
(i) such Existing Encumbrance is irrevocably and unconditionally
discharged no later than the time of creation of the New
Encumbrance, (ii) the New Encumbrance relates only to the same
assets as the Existing Encumbrance and (iii) the Indebtedness
secured by the New Encumbrance does not exceed the Indebtedness
secured by the Existing Encumbrance;
(l) any Encumbrance created in favour of a plaintiff or a defendant
in any action, or the court or tribunal before which such action
is brought, as security for costs for expenses where any member
of the Group is prosecuting or defending such action in the bona
fide interest of such member and/or any other member of the
Group provided that the total amount secured does not exceed
L500,000;
the trust established in accordance with the terms of the
letters dated 21st August 1997 to beneficiaries of the support
agreement dated 1st October 1987 and made between the Parent (1)
and Xxx Xxxxx Worldwide Inc. (2);
(n) liens arising by operation of law or by way of contract in the
ordinary course of business to the extent that the same would
otherwise arise by operation of law;
17
(o) any Encumbrance constituted by a Finance Lease permitted under
clause 12.2(b);
(p) any pledge of documents as security for the liabilities of a
member of the Group in respect of a documentary credit facility
taken out in the ordinary course of business;
(q) any retention of title to goods supplied to any member of the
Group where that retention is required by the supplier in the
ordinary course of its trading activities and on customary
terms;
(r) Encumbrances existing as at the date of this Agreement provided
by the Healthworld Group securing in aggregate a maximum
of L7,500,000;
(s) any Encumbrance over any rent deposits as security for rental
payments to be made by any member of the Group under or pursuant
to any lease of premises used for its business;
(t) any Encumbrance on the assets of Lighthouse and its Subsidiaries
which are acquired pursuant to the Lighthouse Acquisition
provided that the Indebtedness secured thereby is repaid and
cancelled in full on the First Drawdown Date (or, if clause 4.11
applies, upon completion of the Lighthouse Acquisition) and no
further such Indebtedness is incurred and such Encumbrances are
discharged in full within 90 days of the completion of the
Lighthouse Acquisition; and
(u) any Encumbrance not otherwise permitted pursuant to paragraphs
(a) to (t) above (inclusive) and securing Indebtedness in
aggregate not exceeding L3,000,000;
"Permitted Guarantees" means:
(a) any guarantee which the Agent (acting on the instructions of the
Majority Banks) has at any time in writing agreed shall be a
Permitted Guarantee;
(b) any guarantee given by a member of the Group of the obligations
of another member of the Group;
(c) any guarantee given by any member of the Group listed in
schedule 9 guaranteeing the amount set opposite the relevant
guarantee in schedule 9, but not any increase in such amount;
(d) until repayment of the Existing Group Facilities, any guarantee
given by any member of the Group in connection with the Existing
Group Facilities;
(e) any guarantee given by a company which becomes a Subsidiary
after the date of this Agreement (which guarantee was in
existence at the date such company becomes a Subsidiary and was
not created in contemplation thereof) but only if the maximum
amount guaranteed has not been increased on account of or since
the date on which such company becomes a Subsidiary and provided
that the same is discharged within 6 months of the relevant
company becoming a Subsidiary;
18
(f) any guarantee given by a company in the Group in favour of a
bank in connection with any bona fide cash management and/or
netting arrangements for the Group;
(g) any guarantee given by a member of the Group in connection with
bona fide arrangements for the maintenance of media
accreditation of any member of the Group provided that such
members of the Group purchase media only in accordance with
normal industry practice;
(h) any indemnity given by a member of the Group required by a bank
as part of its normal terms and conditions for transacting
business indemnifying such bank against costs and losses it may
sustain as a consequence of accepting telephone or facsimile
instructions from such member of the Group;
(i) any counter indemnity given by any member of the Group in
connection with a Bid Bond;
(j) the indemnity given by the Parent to Saatchi & Saatchi Holdings
Limited in clause 6.2 of the Zenith Shareholders' Agreement in
its original form;
(k) the indemnities given by the Parent to Zenith pursuant to
clauses 4.2.4 and 5.8 of the Media Services Agreement in its
original form;
(l) the indemnity given to the representatives of the banks under
the Existing Group Facilities; and
(m) the Zenith Guarantee;
"Permitted Restricted Asset Disposal" means a disposal of a Restricted
Asset which is permitted pursuant to clause 12.2(d)(i);
"Plan" means an employee pension benefit plan as defined in section
3(2) of ERISA established or maintained by any member of the Group or
any ERISA Affiliate and which is covered by Title IV of ERISA other
than a Multiemployer Plan;
"Press Announcement" means a press announcement in the agreed form
relating to the Lighthouse Acquisition;
"Property Payments" means the aggregate amount of (i) the payments made
by a member of the Group pursuant to leases of unoccupied land or
buildings of which such member of the Group is a lessor and (ii) the
amount by which payments under a lease of land or buildings of which a
member of the Group is a lessee exceeds the amount of rental received
by such member of the Group in respect of such land or buildings from
any other person to the extent that such amount is not included in
PBIT;
"Qualifying Bank" means:
19
(a) a person to which payments shall be payable under this Agreement
by a Borrower which is resident in the United Kingdom for the
purposes of taxation at the date such payment shall be due,
being:
(i) a "bank" within the meaning of section 840A Income and
Corporation Taxes Xxx 0000;
(ii) which is beneficially entitled to any interest payable to
it under this Agreement; and
(iii) which is within the charge to corporation tax as respects
such interest;
but so that if either section 840A or section 349(3)(a) of such
Act is amended or repealed, this paragraph (a) shall be amended
in such manner as the Agent, after consultation with the Parent,
shall reasonably determine in order to include within the
definition of "Qualifying Bank" under this paragraph (a) persons
whose circumstances correspond (as far as appropriate in the
light of the changed provisions) to those of a "Qualifying Bank"
as defined in this paragraph (a) and which are in consequence
able to receive interest payable to them under this Agreement
without deduction of or on account of United Kingdom tax; or
(b) a person, to which payments shall be payable under this
Agreement by a Borrower which is not resident in the United
Kingdom for the purposes of taxation at the date such payments
shall be due and which, by virtue of the provisions of section
118G of the Income and Corporation Taxes Xxx 0000, and subject
only to the making of a declaration by that person or by such
Borrower under paragraph 4 of the Income Tax (Paying and
Collecting Agents) Regulations 1996 without the Borrower
incurring any additional expense or suffering any significant
additional administrative burden, is eligible to have such
payments made to it without any withholding or deduction in
respect of United Kingdom Taxes, being either:
(i) a person which, under section 118G(4)(a) of the Income
and Corporation Xxxxx Xxx 0000, is:
(A) beneficially entitled to any relevant payment
payable to it by such a Borrower under this
Agreement; and
(B) at the date such relevant payment is paid to it is
not resident in the United Kingdom and is
beneficially entitled to an interest under this
Agreement which entitles it to receive such
payment; or
(ii) a person which, under section 118G(4)(b) of the Income
and Corporation Xxxxx Xxx 0000, is:
20
(A) a "bank" within the meaning of section 840A Income
and Corporation Taxes Xxx 0000;
(B) which is beneficially entitled to any interest
payable to it by such a Borrower under this
Agreement; and
(C) which at the date such interest is paid to it is
resident in the United Kingdom and is beneficially
entitled to an interest under this Agreement which
entitles it to receive such interest
but so that, if section 118(G)(4)(a) of the Income and
Corporation Taxes Act 1988 in the case of paragraph
(b)(i) above or if either section 840A or section
118G(4)(b) of such Act in the case of paragraph (b)(ii)
above is amended or repealed, paragraph (b)(i) and/or
(b)(ii) above, as appropriate, shall be amended in such
manner as the Agent, after consultation with the Parent,
shall reasonably determine to be necessary in order to
define a person whose circumstances most closely
correspond to a person as defined in the relevant
paragraph; or
(c) in the event that the Parent and the Agent (acting reasonably)
agree that interest paid under this Agreement by a UK Borrower
to a Bank which is not a Qualifying Bank by virtue of paragraph
(a) of the definition of Qualifying Bank, is not treated as a
distribution for UK Tax purposes, a person, being a bank or
financial institution (whether incorporated in the United
Kingdom or elsewhere), which, by virtue of the provisions of a
double taxation agreement between the United Kingdom and the
country of residence of that person is, subject only to a prior
direction given to a Borrower which is resident in the United
Kingdom by the United Kingdom Inland Revenue pursuant to an
application by that person without such Borrower incurring any
additional expense or suffering any significant additional
administrative burden, eligible to have payments made to it by
such Borrower under this Agreement (i) without any deduction or
withholding in respect of Taxes, or (ii) (in the case of a
Substitute) subject to a withholding or deduction in respect of
Taxes to an extent no greater than that which applied to the
Bank from which such Substitute acquired its Commitment and/or
Contribution;
(d) a person to which payments shall be payable under this Agreement
by a US Borrower, being a bank or financial institution which:
i) is created or organised under the laws of the United
States of America or of any state thereof or the District
of Columbia and, if such bank or financial institution is
not a corporation, has delivered to the Agent and each
relevant US Borrower within 30 days from the date on
which it becomes a party to this Agreement, two accurate
and complete original copies of Internal Revenue Service
Form W-9 (or any applicable successor or additional form)
duly executed, to establish that such bank or financial
institution is entitled to receive payment of principal,
21
interest, fees or other amounts under this Agreement free
of backup withholding; or
ii) is not created or organised under the laws of the United
States of America or any state thereof or the District of
Columbia and has delivered to the Agent and each relevant
US Borrower within 30 days from the date on which it
becomes a party to this Agreement, two accurate and
complete original copies of Internal Revenue Service Form
W-8BEN (with respect to a complete exemption under an
income tax treaty) or W-8EC1, or any applicable successor
or additional forms, duly executed by such bank or
financial institution, together with any other
certificate or statement of exemption required under the
Code or the regulations or pronouncements issued
thereunder to establish that such bank or financial
institution is entitled to receive payment of principal,
interest, fees or other amounts under this Agreement
without any deduction or withholding of United States of
America federal income tax;
"Quarter Days" means 31 March, 30 June, 30 September and 31 December in
any year;
"Quarterly Management Accounts" means the quarterly management accounts
of the Group to be delivered to the Agent pursuant to clause 12.1(f) in
the agreed form;
"Quotation Date" means, in relation to a Revolving Credit Term, an
Interest Period or other period for which LIBOR is to be determined,
the date on which quotations are provided by leading banks in the
London Interbank Market for deposits in the relevant currency for
delivery on the first day of that Revolving Credit Term, Interest
Period, or other period;
"Reference Banks" means the principal London offices of HSBC Bank plc
and The Bank of New York and/or any other Bank appointed as such
pursuant to clause 19.15 and their respective successors in title;
"Regulation D Costs" means, in relation to its participation in an
Advance made to a US Borrower (or deposits maintained by a Bank to fund
that participation), the amount (if any) certified by a Bank to be the
cost to it of complying with Regulation D of the Board of Governors of
the Federal Reserve System, or any successor (or any similar reserve
requirements in respect of its participation or those deposits);
"Relevant Acceleration Notice" means a copy, certified as a true,
complete and up-to-date copy by an Authorised Officer of the Parent, of
a notice from the agent under the Existing Group Facilities Agreement
to the Parent demanding repayment of the Existing Group Facilities in
full as a result of the Obligors' entry into of this Agreement and the
Security Documents;
22
"Repayment Date" means, subject to clause 10.3, in relation to the
Conversion Advance, the date on which it is scheduled to be repaid
under this Agreement and in relation to any other Advance, the last day
of its Term;
"Restricted Assets" means the shares in any Subsidiary or a material
part of the business of any Subsidiary or any interest in Zenith or any
interest in freehold or leasehold property (and all buildings and
fixtures thereon);
"Revolving Credit Advance" means a Facility A Advance or Facility B
Advance (other than the Conversion Advance);
"Revolving Credit Facilities" means Facility A and Facility B;
"Revolving Credit Term" means, in relation to a Revolving Credit
Advance, the period for which that Revolving Credit Advance is, or is
to be, borrowed, as specified in the Drawdown Notice for such Revolving
Credit Advance;
"Security Documents" means the Guarantees, the Security Trust Deed and
all other documents from time to time entered into in favour of the
Agent, the Security Trustee and/or the Funders by way of guarantee or
other assurance of and/or security for amounts owed to any of the
Beneficiaries (as defined in the Security Trust Deed);
"Security Trust Deed" means a security trust deed in the agreed form
and made or to be made between the Parent (1), the Original Borrowers
and the Original Overdraft Borrowers (2), the Guarantors as set out
therein (3), the Arrangers (4), the Banks (5), the Swingline Bank (6),
the Overdraft Bank (7), the Agent (8) and the Security Trustee (9);
"Security Trustee" means HSBC Investment Bank plc and its successors in
title in its capacity as security trustee for the purposes of the
Guarantees or such other person as is appointed as security trustee
pursuant to the Security Trust Deed;
"Settlement Amount" means the amount payable by the Swingline Bank to
the beneficiary under a Swingline Letter of Credit;
"Settlement Date" means the date on which payment is due to the
beneficiary in respect of a Swingline Letter of Credit;
"Sterling" and "Pounds Sterling" mean the lawful currency for the time
being of the United Kingdom and in respect of all payments to be made
under this Agreement in Sterling mean immediately available, freely
transferable cleared funds;
"Subsidiary" of a person means any company or entity directly or
indirectly controlled by such person, for which purpose "control" means
either ownership of more than 50 per cent of the voting share capital
(or equivalent right of ownership) of such company or entity or the
right to control its policies and management whether by contract or
otherwise and for the purposes of clauses 11.1(i), 12.1 and 13.1 only a
subsidiary undertaking within the meaning of section 258 of the
Companies Xxx 0000;
23
"Substitute" has the meaning given to it in clause 18.3;
"Substitution Certificate" means a certificate substantially in the
terms of schedule 6;
"Swingline Advance" means (i) each borrowing of a portion of the
Commitments under the Swingline Facility by the Swingline Borrower or
(ii) (as the context may require) the principal amount of such
borrowing for the time being outstanding;
"Swingline Bank" means The Bank of New York and its successors in title
c/o BNY Capital Markets Inc., Xxx Xxxx Xxxxxx - 00 Xxxxx, Xxx Xxxx, XX
00000;
"Swingline Borrower" means Xxxxx US Holdings Inc.;
"Swingline Facility" means a swingline facility (including a letter of
credit facility) of up to $18,000,000 made available to the Swingline
Borrower by the Swingline Bank pursuant to clause 2.1(c);
"Swingline Facility Amount" means $18,000,000 as reduced by any
relevant provision of this Agreement;
"Swingline Letter of Credit" means a standby letter of credit
denominated in Dollars and issued in a form agreed between the
Swingline Borrower and the Swingline Bank pursuant to clause 6.6;
"Swingline Letter of Credit Commission" means the rate per annum
calculated in accordance with clause 6.9;
"Swingline Letter of Credit Facility Amount" means $4,000,000 as
reduced by any relevant provision of this Agreement;
"Swingline Minimum" means $5,000,000 as reduced by any relevant term of
this Agreement;
"Swingline Term" means, in relation to any Swingline Advance, the
period for which that Swingline Advance is, or is to be, borrowed, as
specified in the Drawdown Notice for such Swingline Advance;
"TARGET Day" means a day on which the Trans-European Automated
Real-time Gross Settlement Express Transfer system (TARGET) is
operating;
"Taxes" includes all present and future taxes, levies, imposts, duties,
fees or charges of whatever nature together with interest thereon and
penalties in respect thereof and "Taxation" shall be construed
accordingly;
"Term" means a Revolving Credit Term or a Swingline Term, as the
context requires;
"Termination Date" means, in relation to a Revolving Credit Facility,
the last day of the Availability Period relating to that Revolving
Credit Facility;
24
"Total Commitments" means in respect of a Facility or (as the context
requires) the Facilities at any relevant time the total of the
Commitments of all the Banks in respect of such Facility or Facilities
at such time;
"Trade Sale" means a sale or other disposal of all or substantially all
of the assets and undertakings of a member of the Group to a person or
persons who is/are not a member of the Group;
"Treaty" means the Treaty establishing the European Economic Community
being the Treaty of Rome of 25 March 1957 as amended by the Single
Xxxxxxxx Xxx 0000 and the Maastricht Treaty (which was signed on 7
February 1992 and came into force on 1 November 1993) as amended,
varied or supplemented from time to time;
"UK Borrower" means a Borrower which is a company which is resident for
Taxation purposes in the United Kingdom;
"UK Listing Authority" means the Financial Services Authority in its
capacity as the competent authority for the purposes of Part IV of the
Financial Services Xxx 0000;
"Unanimous Consent Notice" means a letter from the Arrangers to the
Parent and the Agent confirming that each lender under the Existing
Group Facilities Agreement has agreed to participate in the Facilities
together with original Substitution Certificates duly executed by each
such lender pursuant to which each such lender has a Commitment that is
at least as large as such lender's commitment under the Existing Group
Facilities Agreement as at the date of such letter from the Arrangers;
"US Borrower" means a Borrower incorporated or organised under the laws
of any of the United States of America or the District of Columbia;
"Utilisation" means (i) each borrowing under the Overdraft Facility by
the Overdraft Borrowers or (ii) (as the context may require) the
principal amount of all such borrowings for the time being outstanding;
"Zenith" means Zenith Media Holdings Limited (registered no. 3423055);
"Zenith Group" means Zenith and its Subsidiaries from time to time;
"Zenith Guarantee" means the guarantee given by the Parent to HSBC
Investment Bank plc as Security Trustee in respect of the L21,500,000
facility agreement dated 30 September 1997 and made between (inter
alios) Zenith Media Holdings Limited, HSBC Investment Bank plc as
agent and security trustee and the banks referred to therein; and
"Zenith Shareholders' Agreement" means the shareholders' agreement
dated 11 December 1997 made between the Parent (1), Saatchi & Saatchi
Holdings Limited (2), Saatchi (3) and Zenith (4), entered into in
relation to Zenith.
25
1.3 Headings
Clause headings and the table of contents are inserted for convenience
of reference only and shall be ignored in the interpretation of this
Agreement.
1.4 Construction of certain terms
In this Agreement, unless the context otherwise requires:
(a) references to clauses and schedules are to be construed as
references to the clauses of, and schedules to, this Agreement
and references to this Agreement include its schedules;
(b) references to (or to any specified provision of) this Agreement
or any other document shall be construed as references to this
Agreement, that provision or that document as in force for the
time being and as from time to time amended in accordance with
its terms, or, as the case may be, with the agreement of the
relevant parties and (where such consent is, by the terms of
this Agreement or the relevant document, required to be obtained
as a condition to such amendment being permitted) the prior
written consent of the relevant parties;
(c) reference to a document or other papers "in the agreed form"
means in the form of such document initialled by way of
identification by the Agent and the Parent or in the form
included in a Schedule to this Agreement;
(d) references to a "regulation" include any present or future
regulation, rule, directive, requirement, request or guideline
(whether or not having the force of law and to the extent
applicable to any Bank, with which banks customarily comply) of
any agency, authority, central bank or government department or
any self-regulatory or other national or supra-national
authority;
(e) words importing the plural shall include the singular and vice
versa;
(f) references to a time of day are to London time;
(g) references to a "person" shall be construed as including
references to an individual, firm, company, corporation,
unincorporated body of persons or any State or any of its
agencies;
(h) references to "assets" include all or part of any business,
undertaking, real property, personal property, uncalled capital
and any rights (whether actual or contingent, present or future)
to receive, or require delivery of, any of the foregoing;
(i) references to a "guarantee" include references to an indemnity
(in the nature of a guarantee) or other assurance against
financial loss (including, without limitation, an obligation to
purchase assets or services) in each case as a consequence of a
default by any other person to pay any Indebtedness and
"guaranteed" shall be construed accordingly;
26
(j) references to the "equivalent" of an amount specified in a
particular currency (the "specified currency amount") shall be
construed as a reference to the amount of the other relevant
currency which can be purchased with the specified currency
amount in the London foreign exchange market at or about the
relevant time on the day on which the calculation falls to be
made, for delivery on the relevant day, as determined by the
Agent; and
(k) references to any enactment shall be deemed to include
references to such enactment as re-enacted, amended or extended.
1.5 Majority Banks
Where this Agreement provides for any matter to be determined by
reference to the opinion of the Majority Banks or to be subject to the
consent or request of the Majority Banks or for any action to be taken
on the instructions of the Majority Banks, such opinion, consent,
request or instructions shall (as between the Banks) only be regarded
as having been validly given or issued by the Majority Banks if all the
Banks shall have received prior notice of the matter on which such
opinion, consent, request or instructions are required to be obtained
and the relevant majority of Banks shall have given or issued such
opinion, consent, request or instructions but so that (as between each
Borrower and the Banks) each Borrower shall be entitled (and bound) to
assume that such notice shall have been duly received by each Bank and
that the relevant majority shall have been obtained to constitute
Majority Banks whether or not this is in fact the case.
1.6 Agent's opinion
(a) Where this Agreement provides for the Agent's opinion to
determine whether any matter would or is reasonably likely to
have a Material Adverse Effect or a material adverse effect, as
the case may be, the Agent shall act in accordance with the
instructions of the Majority Banks in making such determination.
(b) The Borrowers shall be entitled to assume that any such
determination by the Agent has been made in accordance with the
provisions of clause 1.6(a).
2 The Facilities
2.1 Amount
Upon and subject to the terms of this Agreement and in reliance on each
of the representations and warranties in clause 11, for the purposes
set out in clause 1.1:
(a) the Banks agree to lend to the Borrowers the principal sum of up
to the Facility A Amount or its equivalent in Optional
Currencies;
(b) the Banks agree to lend to the Borrowers the principal sum of up
to the Facility B Amount or its equivalent in Optional
Currencies;
27
(c) the Swingline Bank agrees to lend to, and issue Swingline
Letters of Credit at the request of, the Swingline Borrower in
the principal sum of up to $18,000,000 (subject to the
restriction, in the case of Swingline Letters of Credit, of the
Swingline Letter of Credit Facility Amount); and
(d) the Overdraft Bank agrees to make available to the Overdraft
Borrowers the principal sum of up to L6,000,000.
The obligation of each Bank under this Agreement shall be to contribute
that proportion of each Revolving Credit Advance (or the Conversion
Advance) which, as at the Drawdown Date of such Revolving Credit
Advance (or the Conversion Advance), its Commitment in respect of the
relevant Revolving Credit Facility bears to the Total Commitments in
respect of the relevant Revolving Credit Facility and, in the case of
the Swingline Facility and the Overdraft Facility, to assume its
obligations under clause 6 and clause 7 respectively.
2.2 Obligations several
The obligations of each Bank under this Agreement are several; the
failure of any Bank to perform such obligations shall not relieve any
Finance Party or any Borrower of any of their respective obligations or
liabilities under this Agreement nor shall the Agent, the Security
Trustee, the Swingline Bank, the Overdraft Bank or any Arranger be
responsible for the obligations of any Bank (except for its own
obligations, if any, as a Bank) nor shall any Bank be responsible for
the obligations of any other Bank under this Agreement.
2.3 Interests several
Without prejudice to the provisions of this Agreement relating to or
requiring action by the Majority Banks, the interests of the Finance
Parties are several and the amount due to the Agent, to the Security
Trustee (for its own account), to the Swingline Bank, to the Overdraft
Bank, to each Arranger and to each Bank is a separate and independent
debt. Each Finance Party shall have the right to protect and enforce
its rights arising out of this Agreement (but subject always to the
terms of this Agreement) and it shall not be necessary for any other
Finance Party to be joined as an additional party in any proceedings
for this purpose.
2.4 Maximum outstandings
The aggregate of the Dollar Amount of all Facility A Advances,
Swingline Advances, Swingline Letters of Credit and Utilisations shall
at no time exceed the Total Commitments in respect of Facility A. The
aggregate of the Dollar Amount of all Facility B Advances shall at no
time exceed the Total Commitments in respect of Facility B (save where
the Conversion Advance has been drawn).
28
3 Conditions
3.1 Documents and evidence required
(a) The obligation of each Bank to make its Commitments available,
for the Swingline Bank to make available the Swingline Facility
or for the Overdraft Bank to make available the Overdraft
Facility shall be subject to the condition that the Agent, or
its duly authorised representative, shall have received, not
later than two Banking Days before the day on which the Drawdown
Notice or L/C Application in respect of the first Advance or
Swingline Letter of Credit is given or, if the first drawing
under the Facilities is a Utilisation, not later than two
Banking Days before the first Utilisation, the documents and
evidence specified in part A of schedule 4 in form and substance
satisfactory to it.
(b) In addition to clause 3.1(a), the obligation of each Bank to
make its Commitments available (and the Swingline Bank to make
available the Swingline Facility and for the Overdraft Bank to
make available the Overdraft Facility) for the purposes of
refinancing the Existing Lighthouse Facilities or to pay costs
and expenses incurred in connection with the Lighthouse
Acquisition shall be subject to the further condition that the
Agent, or its duly authorised representative, shall have
received not later than two Banking Days before the day on which
the Drawdown Notice is given in respect of the first Advance
which is to be used for any such purpose, the documents and
evidence specified in part B of schedule 4 in form and substance
satisfactory to it. Notwithstanding any other provision of this
Agreement, until such time as the condition in this clause
3.1(b) has been satisfied, the aggregate of the Dollar Amount of
all Facility A Advances, Swingline Advances, Swingline Letters
of Credit and Utilisations shall at no time exceed $125,000,000
and the aggregate of the Dollar Amount of all Facility B
Advances shall at no time exceed $125,000,000.
3.2 General conditions precedent
The obligation of each Bank to contribute to any Advance, of the
Swingline Bank to make available any Swingline Advance or Swingline
Letter of Credit or of the Overdraft Bank to make available any
Utilisation is subject to the further conditions that at the date of
each Drawdown Notice or L/C Application and on each Drawdown Date,
Utilisation or L/C Issue Date:
(a) the representations and warranties set out in clause 11, other
than the excluded representations and warranties set out in
clause 11.2 (and so that the representation and warranty in
clause 11.1(i) shall for this purpose refer to the most recent
audited consolidated financial statements delivered to the Agent
under clause 12.1(e)) are true and correct on and as of each
such date as if each were made with respect to the facts and
circumstances existing at such date; and
29
(b) no Default shall have occurred and be continuing unremedied and
unwaived or would result from the making of such Advance,
Utilisation or Swingline Letter of Credit.
However, in the case of the drawing of (A) the Conversion Advance,
and/or (B) a Revolving Credit Advance which would not, if drawn, cause
the aggregate Dollar Amount of the Revolving Credit Advances
outstanding after such drawing to exceed the aggregate Dollar Amount of
the Revolving Credit Advances outstanding under the Revolving Credit
Facility concerned, prior to that drawing (after taking account of any
repayment made on or prior to the date of such drawing) then, in either
case:
(i) clause 3.2(a) shall apply only if the incorrectness would
be reasonably likely to have a Material Adverse Effect; and
(ii) clause 3.2(b) shall not apply provided that the Term of the
relevant Revolving Credit Advance which is to be drawn, or
the Interest Periods of the Conversion Advance, shall be
one month or less.
Nothing in this clause 3.2 shall be construed as constituting a waiver
of any right of the Banks (including, without limitation, their rights
under clause 14.2) arising from any Event of Default which shall have
occurred and be outstanding at the time of the drawing of the relevant
Revolving Credit Advance.
3.3 Waiver of conditions precedent
The conditions specified in this clause 3 are inserted solely for the
benefit of the Banks and may be waived on their behalf in whole or in
part and with or without conditions by the Agent acting on the
instructions of the Majority Banks, the Swingline Bank and the
Overdraft Bank in respect of any Advance, Swingline Letters of Credit
or Utilisation respectively without prejudicing the right of the Agent
acting on such instructions to require fulfilment of such conditions in
whole or in part in respect of any other Advance, Swingline Letter of
Credit or Utilisation.
3.4 Notification
The Agent shall notify the Banks promptly after receipt by it of the
documents and evidence referred to in clause 3.1.
4 The Facilities; Currencies
4.1 Drawdown of Advances
Subject to the terms and conditions of this Agreement an Advance shall
be made available to the relevant Borrower:
(a) in the case of Revolving Credit Advances and the Conversion
Advance following receipt by the Agent (with a copy to the
Swingline Bank) from that Borrower of a Drawdown Notice:
30
(i) in the case of an Advance to be drawn in an Optional
Currency other than Sterling, not later than 10 a.m. on
the third Banking Day before the proposed Drawdown Date;
(ii) in the case of an Advance to be drawn in Dollars not
later than 2 p.m. on the third Banking Day before the
proposed Drawdown Date; and
(iii) in the case of an Advance to be drawn in Sterling, not
later than 1 p.m. on the Banking Day before the proposed
Drawdown Date; and
(b) in the case of Swingline Advances, following receipt by the
Swingline Bank (with a copy to the Agent) from the Swingline
Borrower of a Drawdown Notice, not later than 2.00 p.m. (New
York City time) on the relevant Drawdown Date.
A Drawdown Notice shall be effective on actual receipt by the Agent or,
as the case may be, the Swingline Bank and, once given, shall, subject
as provided in clause 5.8 a, be irrevocable.
4.2 Notification to Banks of Revolving Credit Advances and the Conversion
Advance
As soon as practicable after receipt of a Drawdown Notice in respect of
a Revolving Credit Advance or the Conversion Advance complying with the
terms of this Agreement the Agent shall notify each Bank and, subject
to clause 3, each of the Banks shall on the Drawdown Date make
available to the Agent its portion of the relevant Advance in
accordance with clause 10.2. If an Advance is to be drawn down in an
Optional Currency the Banks shall advance to the relevant Borrower on
the drawdown of such Advance the amount of the Optional Currency
specified in the Drawdown Notice for that Advance. The Agent shall
determine the Dollar Amount of such Advance at the spot rate of
exchange quoted to it for the purchase of such Optional Currency with
Dollars at or about the time of receipt of the Drawdown Notice for such
Advance.
4.3 Amount and Term of Revolving Credit Advances
Each Revolving Credit Advance shall be:
(a) of a Dollar Amount which is a minimum of $5,000,000 and (if the
Advance is to be drawn in Dollars) an integral multiple of
$1,000,000 and shall be used for the purposes described in
clause 1.1(a), in the case of Facility A Advances, or clause
1.1(b) in the case of Facility B Advances;
(b) denominated in one currency only;
(c) borrowed for a Revolving Credit Term of one, two, three or six
months or seven days or fourteen days ending on or before the
Termination Date in respect of the relevant Revolving Credit
Facility, or such other periods as the relevant Borrower and the
Banks may agree; and
31
(d) for the purposes of assisting primary syndication of the
Facilities, the initial Revolving Credit Terms for the Revolving
Credit Advances shall be during the period until completion of
such syndication or if earlier the period ending 3 months after
the First Drawdown Date, no more than one month or such other
period or periods as may be agreed between the Parent and the
Agent.
4.4 Amount and Term of Swingline Advances
(a) Each Swingline Advance shall be:
(i) of a Dollar Amount which is a minimum of $100,000 and an
integral multiple of $100,000; and
(ii) borrowed for a Swingline Term of one to five New York
Banking Days.
(b) The Swingline Borrower may not borrow, either by way of
Swingline Advances or by way of the issue of Swingline Letters
of Credit, any amount above the Swingline Minimum which, when
aggregated with any amount which is the subject of a Drawdown
Notice for a Facility A Advance or is outstanding under Facility
A, would result in the Total Commitments being exceeded.
4.5 Selection of currencies
Subject to the provisions of clause 4.6 if a Borrower so requests in
the Drawdown Notice for a Revolving Credit Advance, such Revolving
Credit Advance may be drawn down in an Optional Currency.
4.6 Limit on currencies; non-availability
A Revolving Credit Advance may not be drawn down in an Optional
Currency if (a) in consequence thereof there would be Revolving Credit
Advances outstanding in more than 4 different currencies or (b) any
Bank notifies the Agent not later than 3 p.m. on the third Banking Day
before the proposed Drawdown Date (in the case of Sterling, not later
than 3 p.m. on the Banking Day before the proposed Drawdown Date) that
deposits of such Optional Currency are not readily available to such
Bank in an amount comparable with such Bank's portion of the relevant
Revolving Credit Advance or (c) the Agent determines (acting
reasonably) after consultation with the Reference Banks at any time
prior to 10 a.m. (local time in the place of payment) on the Drawdown
Date that by reason of any change in currency availability, currency
exchange rates or exchange controls it is or will be impracticable for
the relevant Revolving Credit Advance to be drawn down in that Optional
Currency. Accordingly, in any such event, the relevant Revolving Credit
Advance shall be drawn down in Dollars.
4.7 Facility B conversion option
The Parent shall have the option (the "Conversion Option") on the last
day of the Facility B Availability Period to convert all or some of the
Facility B Total Commitments into a term loan facility and, subject to
the terms of this Agreement, to
32
draw under Facility B a single term loan advance in one of Dollars,
Sterling or euros (the "Conversion Advance") on such date by delivery
to the Agent of a duly completed Drawdown Notice.
4.8 The Termination Dates
Without prejudice to any other provision of this Agreement, the
Commitments in respect of the relevant Revolving Credit Facility shall
in any event be reduced to zero on the Termination Date and no
Revolving Credit Advances under the Revolving Credit Facility concerned
(and, in the case of Facility A, no Swingline Advance, Swingline
Letters of Credit or Utilisations) shall be made or issued or allowed
to the Borrowers under this Agreement thereafter.
4.9 Application of proceeds
Without prejudice to any Borrower's obligations under clause 12.1(c),
none of the Finance Parties shall have any responsibility for the
application of the proceeds of any Advance, Swingline Letter of Credit
or Utilisation by any Borrower.
4.10 Information
(a) At close of business in London on each Banking Day on which a
Facility A Advance is made, repaid or prepaid or a Drawdown
Notice in respect of a Facility A Advance is received, the Agent
will confirm to the Swingline Bank the amount outstanding at
that time under Facility A or which is the subject of a Drawdown
Notice in respect of a Facility A Advance and of any part of
Facility A or Swingline Facility which has been cancelled on
such day.
(b) At close of business in New York on each New York Banking Day on
which a Swingline Advance is made, repaid or prepaid, a
Swingline Letter of Credit is issued or reduced in accordance
with the terms of this Agreement or a Drawdown Notice or L/C
Application is received, the Swingline Bank will confirm to the
Agent the amount outstanding at that time under the Swingline
Facility in respect of Swingline Advances and the aggregate
outstanding L/C Liability in respect of all Swingline Letters of
Credit or which is the subject of an L/C Application or a
Drawdown Notice for a Swingline Advance.
(c) The Swingline Bank and the Overdraft Bank will, following a
request by the Agent, promptly inform the Agent of the amount
outstanding under the Swingline Facility or the Overdraft
Facility (as the case may be).
(d) Neither the Agent nor the Swingline Bank shall have any
liability to any other party to this Agreement in respect of any
matter arising directly or indirectly as a result of its failure
to comply with its obligations under this clause 4.10 or for any
Advance or Swingline Letter of Credit being made or issued in
breach of the limits set out in this Agreement. In the event
that any Advance is made or Swingline Letter of Credit is issued
in breach of any such limit the Parent will, on demand by the
Agent, forthwith procure that Advances are prepaid in
33
accordance with the terms of this Agreement and/or Swingline
Letters of Credit irrevocably cancelled so that any such limit
is no longer breached.
4.11 Refinancing of the Existing Group Facilities following a Relevant
Acceleration Notice and the refinancing of the Existing Lighthouse
Facilities
The Parent undertakes that, if a Relevant Acceleration Notice is
delivered in satisfaction of condition precedent (m) in part A of
schedule 4, it will ensure that:
(a) the Revolving Credit Advances which are made to the Borrowers on
the First Drawdown Date are in an aggregate amount which is
sufficient to repay the aggregate principal amount outstanding
in respect of the Existing Group Facilities together with all
unpaid interest thereon and any other amounts payable in
relation thereto on such day. The Borrowers irrevocably
authorise the Agent, and the Agent agrees, to first apply the
proceeds of such Revolving Credit Advances in repayment of all
amounts outstanding in respect of the Existing Group Facilities
and to pay any excess proceeds to the Borrower concerned. The
Borrowers acknowledge that such application by the Agent shall
constitute the making of the Revolving Credit Advances concerned
to the relevant Borrowers by the Banks and the Parent undertakes
to procure that the Existing Group Facilities are cancelled in
full on the First Drawdown Date; and
(b) Revolving Credit Advances are made to the Borrowers upon the day
of completion of the Lighthouse Acquisition in an aggregate
amount which is sufficient to repay the aggregate principal
amount outstanding in respect of the Existing Lighthouse
Facilities together with all unpaid interest thereon and any
other amounts payable in relation thereto on such day. The
Borrowers irrevocably authorise the Agent, and the Agent agrees,
to first apply the proceeds of such Revolving Credit Advances in
repayment of all amounts outstanding in respect of the Existing
Lighthouse Facilities and to pay any excess proceeds to the
Borrower concerned. The Borrowers acknowledge that such
application by the Agent shall constitute the making of the
Revolving Credit Advances concerned to the relevant Borrowers by
the Banks and the Parent undertakes to procure that the Existing
Lighthouse Facilities are cancelled in full on such day.
4.12 Refinancing of the Existing Group Facilities and the Existing
Lighthouse Facilities following a No Consent Notice or a Unanimous
Consent Notice
The Parent undertakes that, if a No Consent Notice or a Unanimous
Consent Notice is delivered in satisfaction of condition precedent (a)
in part B of schedule 4, it will ensure that the Revolving Credit
Advances which are made to the Borrowers on the First Drawdown Date are
in an aggregate amount which is sufficient to repay the aggregate
principal amount outstanding in respect of the Existing Group
Facilities and the Existing Lighthouse Facilities together with, in
each case, all unpaid interest thereon and any other amounts payable in
relation thereto on such day. The Borrowers irrevocably authorise the
Agent, and the Agent agrees, to first apply the proceeds of such
Revolving Credit Advances in repayment of all amounts outstanding
34
in respect of the Existing Group Facilities and the Existing Lighthouse
Facilities and to pay any excess proceeds to the Borrower concerned.
The Borrowers acknowledge that such application by the Agent shall
constitute the making of the Revolving Credit Advances concerned to the
relevant Borrowers by the Banks and the Parent undertakes to procure
that the Existing Group Facilities and the Existing Lighthouse
Facilities are cancelled in full on the First Drawdown Date.
4.13 Refinancing of the Existing Lighthouse Facilities following a Consent
Notice
The Parent undertakes that, if a Consent Notice is delivered in
satisfaction of condition precedent (a) in part B of schedule 4, it
will ensure that the Revolving Credit Advances which are made to the
Borrowers on the First Drawdown Date are in an aggregate amount which
is sufficient to repay the aggregate principal amount outstanding in
respect of the Existing Lighthouse Facilities together with all unpaid
interest thereon and any other amounts payable in relation thereto on
such day. The Borrowers irrevocably authorise the Agent, and the Agent
agrees, to first apply the proceeds of such Revolving Credit Advances
in repayment of all amounts outstanding in respect of the Existing
Lighthouse Facilities and to pay any excess proceeds to the Borrower
concerned. The Borrowers acknowledge that such application by the Agent
shall constitute the making of the Revolving Credit Advances concerned
to the relevant Borrowers by the Banks and the Parent undertakes to
procure that the Existing Lighthouse Facilities are cancelled in full
on the First Drawdown Date.
4.14 Operation of the Facilities and the Existing Group Facilities following
a Consent Notice
The Parent undertakes that, if a Consent Notice is delivered in
satisfaction of condition precedent (a) in part B of schedule 4, it
will:
(a) use all reasonable efforts to ensure that the proportion which
each Revolving Credit Advance to be drawn down under the
Facilities after the First Drawdown Date bears to the Total
Commitments in respect of the Facilities is the same as the
proportion which a revolving credit advance to be drawn down at
or about the same time under the Existing Group Facilities
Agreement bears to the total commitments under the Existing
Group Facilities Agreement at such time;
(b) ensure that, if it elects to draw the Conversion Advance, the
proportion which the Conversion Advance bears to the Facility B
Total Commitments is the same as the proportion which the
conversion advance drawn down under the Existing Group
Facilities bears to the total commitments in respect of Facility
B under the Existing Group Facilities Agreement at such time;
(c) ensure that where any Borrower make a voluntary prepayment of
any part of the Revolving Advances and/or the Conversion
Advance, the same proportion of the revolving credit advances
and/or the conversion advance under the Existing Group
Facilities Agreement is prepaid pursuant to a voluntary
prepayment at or about the same time; and
35
(d) ensure that where the Facilities are voluntarily cancelled, the
same proportion of the Existing Group Facilities are voluntarily
cancelled at or about the same time,
in each case so that, as far as is reasonably practicable, the
Facilities and the Existing Group Facilities are drawn and cancelled to
the same extent.
5 Interest; alternative interest rates
5.1 Calculation of Margin
(a) Subject to clause 5.1(b), the Margin shall be 1.00 per cent. per
annum.
(i) the Margin shall be adjusted in accordance with the table
below semi-annually and shall be the lowest Margin shown
in column (2) for which the ratio in column (1) is
satisfied, such rate to take effect for Advances drawn,
Swingline Letters of Credit issued and Utilisations made
and for the purposes of clause 5.5, on or following, the
delivery to the Agent of the latest audited, or as the
case may be, unaudited (interims or preliminaries)
consolidated financial statements in respect of the
relevant period pursuant to clause 12.1(e) and related
Compliance Certificate;
(ii) the ratio of Consolidated Gross Borrowings to Adjusted
PBIT set out in column (1) below shall be calculated by
reference to the relevant Compliance Certificate and the
relevant sets of latest audited, or as the case may be,
unaudited (interims or preliminaries) consolidated
financial statements delivered to the Agent pursuant to
clause 12.1(e) as referred to in paragraph (iii) below;
(iii) with effect from the delivery to the Agent pursuant to
clause 12.1(e) of unaudited (preliminaries) consolidated
financial statements in respect of the 12 months ending
31 December, 1999 and each audited or, as the case may
be, unaudited financial statements thereafter, the ratio
in column (1) below shall be calculated
(A) as at the end of the Fiscal Year, by reference to
the unaudited (preliminaries) consolidated
financial statements and subsequently by reference
to the audited consolidated financial statements
delivered to the Agent pursuant to clause 12.1(e)
and relevant Compliance Certificates in respect of
such Fiscal Year;
(B) as at the end of each Fiscal Half-Year ended 30
June by reference to the unaudited (interims)
consolidated financial statements for such Fiscal
Half-Year and the audited consolidated financial
statements for the previous Fiscal Year delivered
to the Agent pursuant to clause 12.1(e) and the
relevant Compliance Certificate in respect of such
Fiscal Half-
36
Year (in the case of 30 June, 2000 taking account
of the unaudited (interims) for the Fiscal
Half-Year ended 30 June, 1999 in extracting the
relevant amounts from the audited consolidated
financial statements for the Fiscal Year ended 31
December 1999); and
(C) Adjusted PBIT being calculated for the relevant
twelve months and Consolidated Gross Borrowings
being calculated by reference to the average daily
outstandings over the most recent Fiscal
Half-Year;
(iv) if, on the first day of any relevant Revolving Credit
Term, Swingline Term, Interest Period, the date of any
Utilisation, any L/C Issue Date or the date of any
calculation for the purpose of clause 5.5, the Parent is
obliged to deliver to the Agent under clause 12.1(e) any
audited or unaudited consolidated financial statements
and has failed to do so within the period set out in
clause 12.1(e) the Margin for the relevant Advance,
Utilisation, Swingline Letter of Credit or for the
purposes of clause 5.5 (as the case may be) shall be 1.25
per cent. per annum. Any adjustment to the Margin
required on the basis of the audited or unaudited
consolidated financial statements to be delivered
pursuant to clause 12.1(e) shall be applicable from the
date of delivery of the relevant financial statements and
related Compliance Certificate.
(1) (2)
Ratio of Consolidated Gross Borrowings Applicable Margin
to Adjusted PBIT %
greater than or equal to 2.5:1 1.25
greater than or equal to 2.0:1 1.125
but less than 2.5:1
greater than or equal to 1.5:1 1.00
but less than 2.0:1
greater than or equal to 1.0:1 prior to 31 December 2000 1.00,
but less than 1.5:1 otherwise 0.85
less than 1.0:1 prior to 31 December 2000 1.00,
otherwise 0.70
(v) If the audited consolidated financial statements in
respect of any Fiscal Year delivered under clause 12.1(e)
evidences that the ratio of Consolidated Gross Borrowings
to Adjusted PBIT was different than as disclosed by the
unaudited (preliminaries) consolidated financial
37
statements for such Fiscal Year and the relevant
Compliance Certificate previously received by the Agent
under this Agreement:
(A) (if the ratio of Consolidated Gross Borrowings to
Adjusted PBIT was greater than as disclosed by the
relevant Compliance Certificate) the Parent shall
pay to the Agent (for the Banks, the Swingline
Bank and the Overdraft Bank) such amount, or
(B) (if the ratio of Consolidated Gross Borrowings to
Adjusted PBIT was less than as disclosed by the
relevant Compliance Certificate) the Agent shall,
in consultation with the Parent, the Banks, the
Swingline Bank and the Overdraft Bank, certify to
the Parent such reduction in the Margin in respect
of then current or future Advances and
Utilisations (which certification shall be
conclusive and binding on the parties to this
Agreement and shall adjust the Margin from the
date of such certification),
as will leave the Banks, the Swingline Bank and the
Overdraft Bank (after such payment or reduction) in no
better or worse position than they would have been in had
the ratio of Consolidated Gross Borrowings to Adjusted
PBIT been correctly certified by the relevant Authorised
Officer of the Parent at the time of delivery of the
unaudited consolidated financial statements.
5.2 Interest rate for Revolving Credit Advances
The relevant Borrower shall pay to the Agent interest on each Revolving
Credit Advance drawn by it on its Repayment Date (or, in the case of a
Revolving Credit Advance having a Revolving Credit Term of more than
six months, by instalments, every six months from the Drawdown Date of
such Revolving Credit Advance and on the relevant Repayment Date), at
the rate per annum being the aggregate of (a) the Margin (b) the
Additional Cost and (c) LIBOR.
5.3 Interest rate for Swingline Advances
The Swingline Borrower shall pay to the Swingline Bank interest on each
Swingline Advance drawn by it at the rate being the aggregate of (i)
the applicable Margin which portion shall be paid to the Agent upon
receipt by the Swingline Bank for the account of each Bank, pro rata to
its Commitment in respect of Facility A and (ii) the Federal Funds Rate
(which portion shall be for the account of the Swingline Bank). Such
interest will be paid in arrears on the Swingline Interest Payment Date
falling on or immediately after the Repayment Date of such Swingline
Advance. For the purposes of this clause 5.3 "Swingline Interest
Payment Date" shall mean each of the dates falling at three monthly
intervals beginning three months after the date of this Agreement and
the Termination Date in respect of Facility A.
5.4 Interest rate and Interest Periods for the Conversion Advance
38
(a) The Parent shall pay to the Agent interest on the Conversion
Advance in respect of each Interest Period on the relevant
Interest Payment Date (or, in the case of Interest Periods of
more than six months, by instalments, every six months from the
commencement of the relevant Interest Period and on the relevant
Interest Payment Date) at the rate per annum being the aggregate
of (i) the Margin, (ii) the Additional Cost and (iii) LIBOR.
(b) The Parent may select an Interest Period for the Conversion
Advance by notices received by the Agent not later than 10 a.m.
on the third Banking Day before the beginning of each Interest
Period other than in respect of the first Interest Period which
shall be selected in the Drawdown Notice for the Conversion
Advance. Each Interest Period will commence on the Drawdown Date
of the Conversion Advance or the expiry of the preceding
Interest Period and shall be for a period of one, two, three or
six months or such other period as the Parent and the Banks may
agree and shall end not later than the Repayment Date of the
Conversion Advance
5.5 Interest for late payment
(a) If the relevant Borrower fails to pay any sum (including,
without limitation, any sum payable pursuant to this clause 5.5)
on its due date for payment under this Agreement that Borrower
shall pay interest on such sum from the due date up to the date
of actual payment (as well after as before judgment) at a rate
determined pursuant to this clause 5.5. The period beginning on
such due date and ending on such date of payment shall be
divided into successive periods of not more than three months as
selected by the Agent, the Swingline Bank or the Overdraft Bank
(as the case may be) each of which (other than the first, which
shall commence on such due date) shall commence on the last day
of the preceding such period.
(b) The rate of interest applicable to each such period shall be:
(i) in the case of overdue amounts in relation to Revolving
Credit Advances and the Conversion Advance, the aggregate
of (A) one per cent. per annum, (B) the Margin (C) the
Additional Cost and (D) LIBOR;
(ii) in the case of overdue amounts in relation to Swingline
Advances and Swingline Letters of Credit, the aggregate
of (A) one per cent. per annum, (B) the Margin, to be not
less than one per cent. per annum and (C) the Federal
Funds Rate;
(iii) in the case of overdue amounts in relation to
Utilisations, the aggregate of (A) one per cent. per
annum, (B) the Margin (to be not less than 1 per cent.
per annum) and (C) the Overdraft Bank's base rate in
effect from time to time; and
39
(iv) in any other case, the aggregate of (A) one per cent. per
annum, (B) the Margin, (C) (in the case of amounts in
Sterling) the Additional Cost and (D) LIBOR.
(c) If such unpaid sum is an amount of principal which shall have
become due and payable, by reason of a declaration by the Agent
under clause 14.2(b) or a prepayment pursuant to clauses 8.4 or
16.1, prior to the Repayment Date relating thereto, the first
such period selected by the Agent shall end on such Repayment
Date and interest shall be payable on such unpaid sum during
such period at a rate one per cent above the rate applicable
thereto immediately before it shall have become so due and
payable.
(d) Interest under this clause 5.5 shall be due and payable on the
last day of each period determined by the Agent, the Overdraft
Bank or the Swingline Bank (as the case may be) pursuant to this
clause 5.5 or, if earlier, on the date on which the sum in
respect of which such interest is accruing shall actually be
paid. If, for the reasons specified in clause 5.8(a)(i) or
5.8(a)(ii) it is not possible to determine a rate in accordance
with the foregoing provisions of this clause 5.5, then
(i) in the case of amounts due other than in relation to
Swingline Advances, Swingline Letters of Credit or the
Overdraft Facility then each Bank shall promptly notify
the Agent of the cost of funds to such Bank and interest
on any sum not paid on its due date for payment shall be
calculated for each Bank at a rate determined by the
Agent to be one per cent. per annum above the aggregate
of the Margin and the cost of funds (including, in the
case of amounts in Sterling, Additional Cost) to such
Bank; and
(ii) in the case of amounts due in relation to Swingline
Advances or Swingline Letters of Credit, interest shall
be calculated at a rate determined by the Swingline Bank
to be one per cent. per annum above the aggregate of the
Margin and the cost of funds to the Swingline Bank.
5.6 Notification of interest rate
The Agent shall notify the Borrowers and the Banks promptly of each
rate of interest determined under this clause 5.
5.7 Reference Bank quotations
If any Reference Bank is unable or otherwise fails to furnish a
quotation for the purpose of calculating LIBOR (where such a quotation
is required having regard to the definition of "LIBOR" in clause 1.2)
the interest rate for the relevant Revolving Credit Term or other
period shall be determined, subject to clause 5.8, on the basis of the
quotations furnished by the remaining Reference Banks.
40
5.8 Market disruption; non-availability
(a) If and whenever, at any time prior to the making of a Revolving
Credit Advance or the Conversion Advance or the commencement of
an Interest Period:
(i) (at a time when Reference Bank quotations are required
having regard to the definition of "LIBOR" in clause 1.2)
the Agent shall have determined, after consultation with
the Reference Banks (which determination shall, in the
absence of manifest error, be conclusive), that adequate
and fair means do not exist for ascertaining LIBOR during
such Revolving Credit Term or Interest Period; or
(ii) none or only one of the Reference Banks supplies the
Agent with a quotation for the purpose of calculating
LIBOR (where such a quotation is required having regard
to the definition of "LIBOR" in clause 1.2); or
(iii) the Agent shall have received notification from Banks
with Contributions aggregating not less than one-third of
the total of the relevant Revolving Credit Advance or the
Conversion Advance (or, prior to the First Drawdown Date,
Commitments aggregating not less than one-third of the
Total Commitments) that deposits in Dollars are not
available to such Banks in the London Interbank Market in
the ordinary course of business in sufficient amounts to
fund their Contributions to such Revolving Credit Advance
or the Conversion Advance or that LIBOR does not
accurately reflect the cost to such Banks of obtaining
such deposits;
the Agent shall forthwith give notice (a "Determination Notice")
to the Parent and each of the Banks. A Determination Notice
shall contain particulars of the relevant circumstances giving
rise to its issue.
(b) During the period of 10 days after any Determination Notice has
been given by the Agent under clause 5.8(a), each Bank shall
certify an alternative basis (the "Substitute Basis") for making
available or, as the case may be, maintaining its Contribution.
The Substitute Basis may (without limitation) include
alternative interest periods, alternative currencies or
alternative rates of interest but shall include a margin above
the cost of funds to such Bank (including Additional Cost, if
any) equivalent to the Margin. Each Substitute Basis so
certified shall be binding upon the relevant Borrower and shall
take effect in accordance with its terms from the date specified
in the Determination Notice until such time as the Agent
notifies the Borrower that none of the circumstances specified
in clause 5.8(a) continues to exist whereupon the normal
interest rate fixing provisions of this Agreement shall apply.
(c) If, and whenever at any time prior to the making of a Swingline
Advance, the Swingline Bank gives notice to the Swingline
Borrower and the Agent that deposits in Dollars are not
available in the ordinary course of businesses in sufficient
amounts to fund such Swingline Advance, Swingline Advances shall
41
not be made until the Swingline Bank gives notice to the
contrary to the Parent and the Agent.
6 The Overdraft Facility and the Swingline Facility
6.1 The Overdraft Facility
(a) Utilisations of the Overdraft Facility by the Overdraft
Borrowers may be made subject to the limitation that the amount
outstanding under the Overdraft Facility(calculated on a net
basis and taking account of non-Sterling currency balances)
shall not exceed L6,000,000 at any time.
(b) No principal amount in respect of the Overdraft Facility may be
demanded by the Overdraft Bank unless a notice has been given
under clause 14.2 but thereafter the monies owing in respect of
the Overdraft Facility are repayable on demand.
(c) The Overdraft Bank shall be at liberty at any time to refuse to
allow any Utilisation if the result would be that the limit in
6.1(a) above would be exceeded.
6.2 Terms and conditions
The Overdraft Facility is made available on the terms and conditions
set out in this Agreement and the Overdraft Bank's normal overdraft
terms and conditions to the extent that the same are not inconsistent
with this Agreement.
6.3 Utilisation, interest and repayment
(a) Any borrowing made available under the Overdraft Facility may be
drawn only in Sterling.
(b) The Overdraft Borrowers shall pay to the Overdraft Bank interest
on Utilisations under the Overdraft Facility at the rate being
the aggregate of (i) the applicable Margin (or, if greater, 1
per cent. per annum), which portion shall be paid to the Agent
upon receipt by the Overdraft Bank for the account of each Bank
pro rata to its Commitment and (ii) the Overdraft Bank's base
rate from time to time (which portion shall be for the account
of the Overdraft Bank). Such interest shall accrue from day to
day on the basis of actual days elapsed and a year of 365 days,
and shall be debited to the relevant Overdraft Borrower's
account on the Overdraft Bank's normal quarterly charging dates.
(c) The Overdraft Borrowers shall repay or discharge the Overdraft
Facility in full on the Facility A Termination Date.
6.4 Set off under Overdraft Facility
Each Overdraft Borrower by way of security for all its obligations and
liabilities from time to time under the Overdraft Facility hereby
irrevocably agrees that the Overdraft
42
Bank may at any time, without notice or demand and notwithstanding any
settlement of any obligation under the Overdraft Facility or other
matter whatsoever, combine or consolidate all or any of the accounts of
the Overdraft Borrower held with the Overdraft Bank and/or set-off or
transfer all and any moneys standing to the credit of any one or more
accounts of it with the Overdraft Bank or otherwise owing by the
Overdraft Bank to it in or towards satisfaction of its obligations
under the Overdraft Facility and authorises the Overdraft Bank to
purchase with such moneys such other currencies as may be necessary to
effect such set-off or transfer at the relevant equivalent rate.
6.5 Set off under Swingline Facility
The Swingline Borrower by way of security for all its obligations and
liabilities from time to time under the Swingline Facility hereby
irrevocably agrees that the Swingline Bank may at any time, without
notice or demand and notwithstanding any settlement of any obligation
under the Swingline Facility or other matter whatsoever, combine or
consolidate all or any of the accounts of the Swingline Borrower held
with the Swingline Bank and/or set-off or transfer all and any moneys
standing to the credit of any one or more accounts of it with the
Swingline Bank or otherwise owing by the Swingline Bank to it in or
towards satisfaction of its obligations under the Swingline Facility
and authorises the Swingline Bank to purchase with such moneys such
other currencies as may be necessary to effect such set-off or transfer
at the relevant equivalent rate.
6.6 Swingline Letter of Credit Applications
(a) Subject to the terms and conditions of this Agreement, Swingline
Letters of Credit shall be made available to the Swingline
Borrower following receipt by the Swingline Bank (with a copy to
the Agent) of an L/C Application from the Swingline Borrower not
later than 10 a.m. (New York City time) on the second Banking
Day before the proposed L/C Issue Date.
(b) Each such L/C Application shall be effective on actual receipt
by the Swingline Bank and once given shall be irrevocable.
(c) The obligations of the Swingline Bank and the other Banks to
participate in a Swingline Letter of Credit are subject to the
further condition precedent that, prior to an L/C Application
for a Swingline Letter of Credit being made, the Swingline Bank
or any Bank may require a legal opinion from lawyers acceptable
to it to the effect that the terms of that Swingline Letter of
Credit would be upheld by the courts of the jurisdiction of the
beneficiary but only if the beneficiary is incorporated, or its
principal place of business is situate, in a jurisdiction where
the Swingline Bank or the Bank reasonably believes that any of
the terms of the Swingline Letter of Credit would not
necessarily be upheld.
(d) The terms of the relevant Swingline Letter of Credit must
contain a clear procedure for the making of claims under that
Swingline Letter of Credit satisfactory to the Swingline Bank
which shall include a requirement that the
43
beneficiary gives at least 5 Banking Days' notice of settlement
under the relevant Swingline Letter of Credit.
6.7 L/C Application
An L/C Application will not be regarded as having been duly completed
unless:
(a) the proposed L/C Issue Date is a Banking Day falling within the
Facility A Availability Period;
(b) the Swingline Letter of Credit is denominated in Dollars;
(c) it is accompanied by a copy of the terms of the proposed
Swingline Letter of Credit and the name of the beneficiary is
specified;
(d) the Expiry Date is a Banking Day falling no later than 12 months
after the L/C Issue Date and in any event falling on or before
the Facility A Termination Date; and
(e) there is a maximum limit to the stated liability of the
Swingline Bank under the Swingline Letter of Credit.
6.8 Amount of Swingline Letters of Credit
No Swingline Letter of Credit may be issued on any day for an amount
which, when aggregated with all other Swingline Letters of Credit
outstanding or to be issued on such day, would exceed the Swingline
Letter of Credit Facility Amount.
6.9 Swingline Letter of Credit Commission
(a) The rate of Swingline Letter of Credit Commission applicable to
each Swingline Letter of Credit will be the same as the rate of
the Margin.
(b) Swingline Letter of Credit Commission on the daily Outstanding
L/C Liability of each Swingline Letter of Credit (as determined
by the Swingline Bank) is payable by the Swingline Borrower in
accordance with clause 6.9(c) below to the Swingline Bank and
shall be paid to the Agent upon receipt by the Swingline Bank
for the account of each Bank pro rata to its Commitment.
(c) Swingline Letter of Credit Commission is payable in arrears on
each Quarter Day and on the Termination Date on the Outstanding
L/C Liability of each outstanding Swingline Letter of Credit in
respect of the period commencing on the day immediately
following the date on which an instalment of Swingline Letter of
Credit Commission was last payable in respect of the relevant
Swingline Letter of Credit or, if none, the date of issue of
such Swingline Letter of Credit and ending on the relevant
payment date.
44
6.10 Notification of demand under a Swingline Letter of Credit
The Swingline Bank, forthwith after being notified by the beneficiary
under a Swingline Letter of Credit that it is required to make payment
under that Swingline Letter of Credit, shall notify the Agent and the
Swingline Borrower that such payment is due and of the Settlement Amount
and Settlement Date in respect of such Swingline Letter of Credit.
6.11 Conversion of Swingline Letter of Credit to Swingline Advance
(a) On receipt of a notice from the Swingline Bank under clause 6.10
the Swingline Borrower shall either:
(i) Convert to Swingline Advance
subject to the terms and conditions of this Agreement,
convert the relevant Settlement Amount into a Swingline
Advance by delivering to the Swingline Bank, no later
than close of business on the first Banking Day
following the date of receipt of the said notice (the
"Conversion Date"), a Drawdown Notice, copied to the
Agent (which shall be irrevocable) requesting a
Swingline Advance to the Swingline Borrower of such
amount; or
(ii) Pay under indemnity
(if the Swingline Borrower does not wish to request a
Swingline Advance or the conditions precedent to such
Swingline Advance being made available set out in clause
3 are not fulfilled or the Swingline Borrower fails to
respond to such notice by close of business on the
Conversion Date) treat such notice as a demand under the
indemnity in clause 7.4, and pay to the Swingline Bank,
no later than close of business on the Conversion Date,
the relevant Settlement Amount.
(b) Each Swingline Advance pursuant to clause 6.11 above shall be
paid, not later than 11.00 a.m. on the day which is three New
York Banking Days preceding the Settlement Date, to the
Swingline Bank and shall be held in an account bearing interest
at the Swingline Bank's overnight deposit rate until the
Settlement Date, which interest shall be for the account of the
Swingline Borrower.
6.12 Payment by the Banks to Swingline Bank
(a) If the Swingline Bank has not received the Settlement Amount
from the Swingline Borrower by 11.00 a.m. three Banking Days
before the Settlement Date, it shall notify the Agent by not
later than 2 p.m. three Banking Days before the Settlement Date.
(b) If the Agent has been notified under paragraph (a) above, it
shall notify each Bank by not later than 5 p.m. three Banking
Days before the Settlement Date.
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(c) Each Bank notified under paragraph (b) above shall pay to the
Swingline Bank on the Settlement Date the amount of that Bank's
proportionate liability in respect of the unpaid Settlement
Amount.
6.13 Default by Banks in payment to Swingline Bank
(a) If any Bank (an "L/C Defaulting Bank") fails to make any payment
due from it for the account of the Swingline Bank under clause
6.12 then until the Swingline Bank has been reimbursed in
respect thereof in full (but without prejudice to the
obligations of that L/C Defaulting Bank to make such payment):
(i) the L/C Defaulting Bank shall hold on trust for the
Swingline Bank the benefit of any security now or
hereafter created to secure the obligations of the
Swingline Borrower under this Agreement and to which
that L/C Defaulting Bank would have been entitled had it
made such payment; and
(ii) for the purposes of determining the constitution of the
Majority Banks:
(A) the Swingline Bank shall be treated as having a
Contribution or Commitment (as the case may be)
equal to the amount of such non-payment of the
L/C Defaulting Bank (in addition to the
Commitment or Contribution (if any) which the
Swingline Bank already had in its capacity as a
Bank); and
(B) the Commitment or Contribution (as the case may
be) of the L/C Defaulting Bank shall be treated
as having been reduced to the same extent.
(b) The rights conferred upon the Swingline Bank in this clause 6.13
are in addition to any other rights which it may have against an
L/C Defaulting Bank.
6.14 Reduction of Swingline Letter of Credit Facility
The Outstanding L/C Liability of any Swingline Letter of Credit shall be
treated as reduced for the purposes of this Agreement only when and to
the extent that (a) the Swingline Bank has made a payment under a
Swingline Letter of Credit or (b) the liability of the Swingline Bank
under a Swingline Letter of Credit has been reduced in accordance with
the terms of the relevant Swingline Letter of Credit.
7 Indemnity of Overdraft Bank and Swingline Bank
7.1 Shortfall notification in relation to Swingline Advances and
Utilisations
If the Overdraft Borrowers or the Swingline Borrower fail to pay to the
Overdraft Bank or the Swingline Bank any amount under the Overdraft
Facility or any Swingline Advance, as relevant, when due and payable
(the difference between the amount due and the amount paid being the
"Shortfall") then, without limitation to all other rights and remedies
in respect thereof, the Overdraft Bank or the Swingline Bank, as
46
relevant, shall inform the Agent of such failure, specifying the amount
and currency of the Shortfall whereupon the Agent shall issue a
notification (a "Shortfall Notification") to the Banks stating the
amount of the Shortfall.
7.2 Payment by Banks
Following the issue of a Shortfall Notification each Bank shall pay to
the Agent for the account of the Overdraft Bank or the Swingline Bank,
as relevant, an amount equal to the proportion of the shortfall which
that Bank's Commitment bears to the Total Commitments in respect of
Facility A at that time. Such payments shall be made on the next Banking
Day following the issuance of the Shortfall Notification and shall,
subject to clause 7.3, satisfy the amount due from the relevant Borrower
in respect of which such Shortfall arose to the extent of such payments.
7.3 Indemnity from Borrowers in relation to Swingline Advances and
Utilisations
The Overdraft Borrowers or the Swingline Borrower (as the case may be)
shall indemnify the Banks on demand against any amount payable by them
under clause 7.2. The indemnity in this clause 7.3 shall be a continuing
indemnity notwithstanding any intermediate payment, partial settlement
or other matter whatsoever and shall be in addition to any security or
other right the Banks may have against the Overdraft Borrowers, the
Swingline Borrower or any other Obligor and shall not be wholly or
partly discharged, varied or affected by any time or indulgence granted
to or by the Banks or any other party or by any combination of accounts,
set-off or other agreement between the Banks and the Overdraft Bank or
the Swingline Bank, as relevant in respect of any amount due under
clause 7.2 or by anything done or omitted which would but for this
provision operate to exonerate the Overdraft Borrowers, the Swingline
Borrower or any other Obligor. The Banks shall not be obliged to make
any claim or demand on any other person liable or to resort to any other
Collateral Instrument or other document or other means of payment before
enforcing this indemnity against the Overdraft Borrowers or the
Swingline Borrower (as the case may be) and no other such action which
the Banks do take in connection with any such Collateral Instrument,
other document or other means of payment shall discharge reduce or
otherwise affect the liability of the Overdraft Borrowers or the
Swingline Borrower (as the case may be) under this clause 7.3.
7.4 Counter-indemnity for Swingline Letters of Credit
(a) The Swingline Borrower:
(i) agrees to pay to the Agent for the account of the
Swingline Bank, for the account of all Banks, to the
extent that they have complied with their obligations
under clause 6.12, on demand from the Agent an amount
equal to and in the same currency as each amount
demanded in accordance with paragraph (b) below in
respect of a Swingline Letter of Credit; and
(ii) undertakes to indemnify and hold harmless the Agent, the
Swingline Bank and each Bank from and against all
liabilities, costs, losses, damages and
47
expenses which they incur or sustain by reason of or
arising in any way whatsoever in connection with or by
reference to the issue of a Swingline Letter of Credit
or the performance thereof.
(b) The Swingline Borrower and each Bank unconditionally and
irrevocably:
(i) authorises and directs the Swingline Bank to pay any
prima facie valid demand under and in accordance with a
Swingline Letter of Credit (which the Swingline Bank
believes, in its sole discretion, to be valid) without
requiring proof of the agreement of the Swingline
Borrower or any Bank that the amounts so demanded or
paid are or were due and notwithstanding that the
Swingline Borrower or any Bank may dispute the validity
of any such request, demand or payment;
(ii) confirms that the Swingline Bank deals in documents only
and shall not be concerned with the legality of the
claim or any other underlying transaction or any
set-off, counterclaim or defence as between the
Swingline Borrower and any beneficiary of a Swingline
Letter of Credit;
(iii) agrees that neither the Swingline Bank nor any other
Bank need have regard to the sufficiency, accuracy or
genuineness of any such demand or any certificate or
statement in connection therewith or any incapacity of
or limitation upon the powers of any person signing or
issuing such demand, certificate or statement which
appears on its face to be in order and agrees that
neither the Swingline Bank nor any Bank shall be obliged
to enquire as to any such matters and may assume, unless
notified to the contrary, that any such demand,
certificate or statement which appears on its face to be
in order is correct and properly made; and
(iv) without prejudice to the preceding sub-paragraphs,
agrees that if the Swingline Bank pays any such demand
in accordance with the terms of the relevant Swingline
Letter of Credit which is not legally payable that
amount shall nevertheless be regarded as having been
properly paid for the purposes of this Agreement.
7.5 Rights of contribution and subrogation of Swingline Borrower
Until all amounts due under this Agreement have been fully and
irrevocably discharged and all amounts which are or may become payable
by the Borrowers under or in connection with the Security Documents have
been irrevocably paid in full, the Swingline Borrower shall not, by
virtue of any payment made by it under or in connection with or
referable to this clause 7 or otherwise, be subrogated to any rights,
security or moneys held or received by any Finance Party or be entitled
at any time to exercise, claim or have the benefit of any right of
contribution or subrogation or similar right against any Finance Party.
All rights of contribution or similar rights arising in respect of any
amount due under this Agreement or in connection with the Security
Documents against any Finance Party are hereby waived by the Swingline
Borrower.
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7.6 Waiver of defences of Swingline Borrower
The Swingline Borrower agrees that its obligations under this clause 7
shall not be affected by any act, omission, matter or thing which but
for this provision might operate to release or otherwise exonerate it
from its obligations under this Agreement in whole or in part, including
without limitation and whether or not known to it:
(a) any time or waiver granted to or composition with any Finance
Party, any beneficiary of a Swingline Letter of Credit or any
other person;
(b) any taking, variation, compromise, renewal or release of, or
refusal or neglect to perfect or enforce, any rights, remedies
or securities available to any Finance Party, or other person or
arising under a Swingline Letter of Credit; or
(c) any variation or extension of or increase in liabilities under a
Swingline Letter of Credit, so that references in this Agreement
to Swingline Letters of Credit shall include each such extension
and variation.
7.7 Continuing indemnity of Swingline Borrower
This shall be a continuing indemnity, shall extend to the ultimate
balance of the obligations and liabilities of the Swingline Borrower
under this clause 7 and shall continue in force notwithstanding any
intermediate payment in whole or in part of such obligations or
liabilities.
7.8 Additional security
The obligations of the Swingline Borrower under this clause 7 shall be
in addition to and shall not be in any way prejudiced by any collateral
or other security now or hereafter held by any Finance Party as security
or any lien to which such Finance Party may be entitled.
7.9 Preservation of rights
No invalidity or unenforceability of all or any part of this clause 7
shall affect any rights of indemnity or otherwise which any Finance
Party would or may have in the absence of or in addition to this clause
7.
8 Repayment, prepayment and cancellation
8.1 Repayment of Revolving Credit Advances
The relevant Borrower shall repay to the Agent each Revolving Credit
Advance on its Repayment Date in the currency in which it is
denominated. If a Revolving Credit Advance (the "new Revolving Credit
Advance") is to be made on a day on which another Revolving Credit
Advance made to the same Borrower (the "maturing Revolving Credit
Advance") denominated in the same currency as the new Revolving Credit
Advance is due to be repaid then, subject to the terms of this Agreement
and so long as the conditions referred to in clause 3.2 shall have been
satisfied in relation to
49
the new Revolving Credit Advance, (a) the maturing Revolving Credit
Advance shall be deemed to have been repaid on its Repayment Date either
in whole (if the new Revolving Credit Advance is equal to or greater
than the maturing Revolving Credit Advance) or in part (if the new
Revolving Credit Advance is less than the maturing Advance) and (b) to
the extent that the maturing Revolving Credit Advance is so deemed to
have been repaid, the principal amount of the new Revolving Credit
Advance to be made on such date shall be deemed to have been credited to
the account of such Borrower by the Agent on behalf of the Banks in
accordance with the terms of this Agreement and the Banks shall only be
obliged to make available to such Borrower a principal amount equal to
the amount by which the new Revolving Credit Advance exceeds the
maturing Revolving Credit Advance. On the Termination Date in respect of
the relevant Revolving Credit Facility, all outstanding Revolving Credit
Advances under such Revolving Credit Facility and other sums (if any)
then owing under this Agreement in connection with such Revolving Credit
Facility (other than the Conversion Advance and sums relating thereto)
shall in any event be repaid or paid in full.
8.2 Repayment of Swingline Advances
The Swingline Borrower shall repay to the Swingline Bank each Swingline
Advance on its Repayment Date and shall repay or discharge in full all
outstanding Swingline Advances on the Termination Date in relation to
Facility A.
8.3 Repayment of the Conversion Advance
The Conversion Advance shall be repaid in full by a single repayment on
the date falling 364 days after its Drawdown Date.
8.4 Voluntary prepayment
The Borrowers may without premium or penalty prepay any Revolving Credit
Advance or the Conversion Advance (in whole but not in part only)
subject to the provisions of this clause 8.
8.5 Additional voluntary prepayment
The Borrowers may (in whole but not in part only), without premium or
penalty, but without prejudice to their obligations under clauses 5.8,
10.5 and 16.2 if they have become obliged to pay additional amounts
under clause 10.5 or 16.2 to any Bank or a Substitute Basis applies by
virtue of clause 5.8:
(a) prepay the Contribution to Advances of such Bank or, in the case
of the application of a Substitute Basis, prepay any Bank's
Contribution to which such Substitute Basis applies; and
(b) pay an amount equal to the maximum possible liability of such
Bank under clause 7.1 in respect of the Overdraft Facility and
the Swingline Facility to the
50
Agent to be held on a blocked account as cash collateral for that Bank's
liabilities on terms satisfactory to the Agent (acting reasonably).
Upon any notice of such prepayment being given, the Commitment of the
relevant Bank shall be reduced to zero in respect of the Revolving
Credit Facilities, but such Bank's obligations under clauses 6 and 7
shall remain in full force and effect until the Agent notifies such Bank
that it is satisfied that cash collateral has been received under clause
8.5(b) representing the full amount of that Bank's liabilities.
8.6 Mandatory prepayment/reduction
(a) The Total Commitments in respect of Facility B shall be
permanently reduced (and the Parent shall procure that the
Conversion Advance is prepaid) by an amount equal to the
Aggregate Net Proceeds of any External Refinancing which are in
excess of the amount of such Aggregate Net Proceeds which are
applied in mandatory prepayment of the Existing Group Facilities
in accordance with the Existing Group Facilities Agreement.
(b) (i) If the Aggregate Net Proceeds of any Trade Sales and/or
Flotations and/or Permitted Restricted Asset Disposals
which are received by members of the Group exceed
$10,000,000 (or its equivalent) in any Fiscal Year,
then, save to the extent that such Aggregate Net
Proceeds are subject to a valid Reinvestment Notice or
are applied in mandatory prepayment of the Existing
Group Facilities and any External Refinancing in
accordance with the Existing Group Facilities Agreement,
any External Refinancing, (subject to clause
8.6(b)(ii)), and the Total Commitments in respect of the
Revolving Credit Facilities shall be permanently reduced
(or the Parent shall procure that the Conversion Advance
is prepaid) by an amount equal to 75 per cent. of such
excess Aggregate Net Proceeds such amount to be applied
pro-rata between the External Refinancing on the one
hand and the Total Commitments and the Conversion
Advance on the other hand. Any such pro rata reduction
in the Total Commitments in respect of the Revolving
Credit Facilities shall be applied first against the
Facility B Total Commitments and then, if such Total
Commitments are zero (and the Conversion Advance has
been prepaid in full), applied against the Facility A
Advances and Total Commitments.
(ii) If in the circumstances set out in clause 8.6(b)(i) the
relevant member of the Group is not required by the
terms of the External Refinancing to prepay the External
Refinancing (or if so required, such requirement is
waived) the Group may retain the pro-rata share of the
Aggregate Net Proceeds allocated to the External
Refinancing by clause 8.6(b)(i) for its own account. If,
on the other hand, there is such a requirement to prepay
the External Refinancing, then the Parent shall procure
that any such pro-rata reduction of such External
Refinancing is immediately effected by the prepayment
and cancellation of the facilities concerned to the
extent necessary.
51
(c) (i) Within 15 Banking Days of completion of any External
Refinancing the Parent shall give notice of the amount
of the Aggregate Net Proceeds, and the amount to be
applied towards reducing the Total Commitments in
respect of Facility B and prepayment of the Conversion
Advance pursuant to clause 8.6(a):
(ii) Within 15 Banking Days of completion of any Trade Sale,
Flotation or Permitted Restricted Asset Disposal the
Parent shall:
(A) give notice of the amount of the resulting
Aggregate Net Proceeds and the amount, if any,
by which they exceed $10,000,000 in that Fiscal
Year;
(B) provide the Agent with a Reinvestment Notice in
respect of such excess (if applicable) or in the
absence of such Reinvestment Notice shall give
notice of the amount of the Aggregate Net
Proceeds to be applied towards reducing the
Total Commitments and prepayment of the
Conversion Advance pursuant to clause 8.6(b);
(C) give notice of the amount of such Aggregate Net
Proceeds to be applied towards prepaying the
Existing Group Facilities or the External
Refinancing or a statement that it is not
required to make such a prepayment in accordance
with clause 8.6(b)(ii).
To the extent that pursuant to Clause 8.6(a) or
(b), a portion of such Aggregate Net Proceeds
are to be applied towards reducing the Total
Commitments and prepayment of the Conversion
Advance they shall be so applied with immediate
effect, regardless of any dispute between the
Parent and the Agent as to the amount of
Aggregate Net Proceeds. If the Parent and the
Agent subsequently agree a higher figure for the
amount of the Aggregate Net Proceeds, the
resulting further reduction in the Total
Commitments shall have immediate effect.
(iii) The Aggregate Net Proceeds of a relevant event which
are the subject of a valid Reinvestment Notice may be
applied in or towards a permitted application within
6 months of the relevant event.
(iv) The Parent shall procure that the relevant pro rata
share of any unapplied Aggregate Net Proceeds of a
relevant event are applied in reducing the Total
Commitments and prepaying the Conversion Advance in
accordance with Clause 8.6(b) as if they had not been
subject to a Reinvestment Notice.
52
For the purposes of this Clause 8.6:
(i) a "relevant event" means any Trade Sale and/or Flotation
and/or Permitted Restricted Asset Disposals;
(ii) "unapplied Aggregate Net Proceeds" means, in respect of
a relevant event those Aggregate Net Proceeds (or their
Sterling equivalent at the date of receipt, if
denominated in a currency other than Sterling) of such
relevant disposal which are subject to a valid
Reinvestment Notice and which, as at the end of the
period of six months after the date of such relevant
receipt (or, if earlier, as at the date on which the
Parent notifies the Agent that the Group no longer
intends and expects to use all or the relevant portion
of the Aggregate Net Proceeds concerned towards a
permitted application) have not been applied in a
permitted application;
(iii) a "permitted application" means, in respect of Aggregate
Net Proceeds of a relevant event, their application
within 6 months of their receipt by a member of the
Group in funding a Permitted Acquisition or reimbursing
any relevant member of the Group for amounts paid in
completing a Permitted Acquisition no more than 6 months
prior to such receipt;
(iv) a "Reinvestment Notice" means, in respect of Aggregate
Net Proceeds of a relevant event, a notice from the
Parent and received by the Agent not later than 15
Banking Days after the receipt of such Aggregate Net
Proceeds by a member of the Group which confirms that
the relevant member of the Group intends and expects to
use all or a relevant portion of such Aggregate Net
Proceeds of the relevant event concerned towards a
permitted application.
(d) The Parent shall procure that an amount equal to the amount (if
any) required to be applied in prepayment of the Conversion
Advance or in repayment of Revolving Credit Advances, Swingline
Advances or Utilisations in order that the aggregate
outstandings under this Agreement do not exceed the Total
Commitments as so reduced shall be paid to the Agent forthwith
following receipt to be held on deposit until such amount is
applied under clause 8.6(e) below.
(e) The amount deposited pursuant to paragraph (d) above shall be
applied in repayment of Advances as follows:
(i) on Repayment Dates or Interest Payment Dates falling
after the date upon which the relevant amount was
deposited with the Agent beginning with the first such
date and continuing until the repayment obligation under
paragraph (d) above has been satisfied; and
53
(ii) if on any Repayment Date upon which an amount is to be
applied in mandatory repayment:
1) such amount is less than the amount of the
Revolving Credit Advances whose Term ends on
such date, the Parent may select against which
Revolving Credit Advance or Revolving Credit
Advances the repayment is to be made and the
proportion of the relevant amount to be repaid
on each Revolving Credit Advance but shall
ensure that the full amount of the Aggregate Net
Proceeds required to be applied is so applied in
repayment when received;
2) such amount received is equal to or greater than
the amount of the Revolving Credit Advances
whose Term ends on such date, the Parent shall
procure the repayment of each such Revolving
Credit Advance on such date.
(f) The Parent will procure the conversion of the funds to be used
in repayment under this clause 8.6 into the currency of the
amount or amounts to be repaid prior to paying the same to the
Agent pursuant to clause 8.6(d).
(g) If repayments made pursuant to clauses 8.6(d) and 8.6(e) above
are insufficient to reduce the aggregate outstandings under this
Agreement to the level of the Total Commitments, then the Parent
shall procure the repayment of Swingline Advances and
Utilisations or the discharge of Swingline Letters of Credit in
order to reduce the outstandings under this Agreement to the
level of the Total Commitments.
(h) The First Drawdown Date must be on or before 30 August 2000,
failing which the Total Commitments shall automatically be
cancelled in full.
(i) If a Consent Notice is delivered in satisfaction of condition
precedent (a) in part B of schedule 4, then the Total
Commitments in respect of each of Facility A and Facility B
shall automatically be reduced by $125,000,000 (an aggregate
reduction of $250,000,000) and the Commitment of each Bank
reduced proportionately and the Swingline Facility and the
Overdraft Facility (and the Commitments of the Swingline Bank
and the Overdraft Bank) shall automatically be cancelled in
full. For the avoidance of doubt, no such reduction shall occur
where a Unanimous Consent Notice is delivered in satisfaction of
such condition precedent.
(j) If the condition in clause 3.1(b) is not satisfied by 30 August
2000, then the Total Commitments in respect of Facility A shall
automatically be reduced by $100,000,000 and the Total
Commitments in respect of Facility B shall automatically be
reduced by $50,000,000 and the Commitment of each Bank reduced
proportionately.
54
8.7 Amounts payable on prepayment
Any prepayment under this Agreement shall be made in the currency in
which the relevant Advance is then denominated together with: (a)
accrued interest to the date of prepayment; (b) any additional amount
payable under clauses 10.5, 16.2 or 16.5; and (c) all other sums payable
by the Borrowers to the relevant Bank under this Agreement including,
without limitation, any accrued commitment commission payable under
clause 9.1(c) and any amounts payable under clause 15.1.
8.8 Notice of prepayment
No prepayment may be effected under clause 8.4 or 8.5 unless the
relevant Borrower shall have given the Agent at least 5 Banking Days'
notice of its intention to make such prepayment. Every notice of
prepayment shall be effective only on actual receipt by the Agent, shall
be irrevocable and shall oblige the relevant Borrower to make such
prepayment on the date specified. Amounts prepaid under clause 8.4 or
8.5 may be re-drawn under this Agreement.
8.9 Cancellation of Commitments
The Parent may at any time during the Availability Period in respect of
the relevant Revolving Credit Facility by notice to the Agent (effective
only on actual receipt) cancel with effect from a date not less than 5
Banking Days after the receipt by the Agent of such notice the whole or
any part (being $5,000,000 or any larger sum which is an integral
multiple of $1,000,000) of the Total Commitments in respect of the
Revolving Credit Facility concerned without penalty. Any such notice of
cancellation, once given, shall be irrevocable and upon such
cancellation taking effect the Commitment of each Bank shall be reduced
proportionately.
8.10 Allocation of reduction of commitments
If the Commitments in respect of Facility A are to be reduced or
cancelled in part (but not in whole) pursuant to any provision of this
Agreement such reduction shall be allocated against Facility A, the
Swingline Facility and the Overdraft Facility as the Parent shall
specify and the Commitment of each Bank shall be reduced
proportionately.
9 Fees and expenses
9.1 Fees
The Parent shall pay to the Agent whether or not any Advance is drawn or
any Utilisation made:
(a) Arrangement fee
for the account of the Arrangers, an arrangement fee of an
amount agreed between the Parent and the Arrangers in a letter
dated the same date as this Agreement, such fee to be paid on
the basis stipulated in such letter;
55
(b) Agency fee
on first Drawdown and on each anniversary thereof until all
moneys owing under this Agreement have been paid in full, for
the account of the Agent, an agency fee of an amount agreed
between the Parent and the Agent in a letter dated the same date
as this Agreement; and
(c) Commitment Commission
(i) on the dates falling at three month intervals after the
date of this Agreement and on the last day of the
Availability Period in respect of each Revolving Credit
Facility, for the account of each Bank, commitment
commission computed in the following manner:
(A) in respect of Facility A, at the rate per annum
equal to the lesser of (i) 0.425 per cent. and
(ii) 50 per cent. of the Margin applicable on
each day of the period for which the commitment
commission is calculated (such rate changing, if
relevant, on the day that financial statements
are delivered to the Agent pursuant to clause
12.1) on the daily undrawn and uncancelled
amount of such Bank's Commitment in respect of
Facility A; and
(B) in respect of Facility B, at the rate of 0.25
per cent. per annum on the daily undrawn and
uncancelled amount of such Bank's Commitment
under Facility B; and
(ii) if a Revolving Credit Advance is outstanding in an
Optional Currency, the amount of the Commitments treated
as drawn for the purpose of calculating commitment
commission shall be the Dollar Amount of such Revolving
Credit Advance;
(d) Conversion Fee
on date of its exercise of the Conversion Option, for the
account of the Banks pro rata to their Commitments in respect of
Facility B, a fee equal to 0.05 per cent. of the Conversion
Advance;
(e) Swingline Bank Fee
on the dates falling at quarterly intervals after the date of
this Agreement and on the Termination Date in respect of
Facility A, for the account of the Swingline Bank, a Swingline
Bank fee and Swingline Letter of Credit fee of amounts agreed
between the Parent and the Swingline Bank in a letter dated the
same date as this Agreement; and
(f) Overdraft Bank Fee
on the dates falling at quarterly intervals after the date of
this Agreement and on the Termination Date in respect of
Facility A, for the account of the
56
Overdraft Bank, an Overdraft Bank fee of an amount agreed
between the Parent and the Overdraft Bank in a letter dated the
same date as this Agreement.
9.2 Expenses
The Parent shall pay to the Agent on demand:
(a) all reasonable expenses (including legal, printing and
out-of-pocket expenses) incurred by the Finance Parties in
connection with the negotiation, preparation and execution of
this Agreement, the Security Documents, the syndication of the
Facilities, the preparation and distribution of the Information
Memorandum and of any amendment or extension of, or the granting
of any waiver or consent under, this Agreement or the Security
Documents; and
(b) all expenses (including legal and out-of-pocket expenses)
incurred by the Finance Parties or any of them in contemplation
of, or otherwise in connection with, the enforcement or
attempted enforcement of, or preservation or attempted
preservation of any rights under, this Agreement and/or the
Security Documents (including, without limitation, the fees and
expenses of accountants or other experts incurred in relation to
any investigation into the affairs of the Group provided that
such fees shall not be payable by the Parent if a Default has
not occurred) or otherwise in respect of the moneys owing under
this Agreement and/or the Security Documents, together with
interest at the rate referred to in clause 5.5 from the date on
which such expenses were notified to the Parent to the date of
payment (as well after as before judgment).
9.3 Value Added Tax
All fees and expenses payable pursuant to this clause 9 shall be paid
together with an amount equal to any value added tax payable by the
Finance Parties in respect of such fees and expenses. Any value added
tax chargeable in respect of any services supplied by the Finance
Parties under this Agreement shall, on delivery of a value added tax
invoice, be paid in addition to any sum agreed to be paid under this
Agreement.
9.4 Stamp and other duties
The Parent shall pay all stamp, documentary, registration or other
similar duties or Taxes (including any duties or Taxes (other than Taxes
on overall net income of the Finance Parties) payable by, or assessed
on, the Finance Parties) imposed on or in connection with this Agreement
and/or the Security Documents or the Facilities and shall indemnify the
Finance Parties against any liability arising by reason of any delay or
omission by the Borrowers to pay such duties or Taxes save for any stamp
duty payable as a result of any transfer pursuant to clause 18.
10 Payments and Taxes; accounts and calculations
10.1 No set-off or counterclaim; distribution to the Banks
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Subject to clauses 10.5 and 10.6, all payments to be made by the
Borrowers under this Agreement and/or the Security Documents shall be
made in full, without any set-off or counterclaim whatsoever and free
and clear of any deductions or withholdings, in Dollars or the relevant
Optional Currency (except for costs, charges or expenses which shall be
payable in the currency in which they are incurred) on the due date in
immediately available cleared funds to the account of the Agent, the
Swingline Bank or the Overdraft Bank (as relevant) at such bank as the
Agent, the Swingline Bank or the Overdraft Bank (as relevant) may from
time to time specify for this purpose. Save where this Agreement and/or
the Security Documents provide for a payment to be made for the account
of a particular Bank (including, without limitation, clauses 8.5, 9,
10.5, 15.1, 15.2, 16.1 and 16.2 in which case the Agent shall distribute
the relevant payment to the Bank concerned, or for the account of the
Swingline Bank or the Overdraft Bank), payments to be made by the
Borrowers under this Agreement and/or the Security Documents shall be
for the account of all the Banks and the Agent shall forthwith
distribute such payments in like funds as are received by the Agent to
the Banks rateably in accordance with their Commitments or
Contributions, as the case may be.
10.2 Payments by the Banks
All sums to be advanced by the Banks to the Borrowers under this
Agreement shall be remitted in Dollars or the relevant Optional Currency
in immediately available cleared funds on the relevant Drawdown Date to
the account of the Agent at such bank as the Agent may have notified to
the Banks and shall be paid by the Agent on such date in like funds as
are received by the Agent to the account of the relevant Borrower
specified in the relevant Drawdown Notice.
10.3 Non-Banking Days
When any payment under this Agreement would otherwise be due on a day
which is not a Banking Day, the due date for payment shall be postponed
to the next following Banking Day unless such Banking Day falls in the
next calendar month in which case payment shall be made on the
immediately preceding Banking Day.
10.4 Agent may assume receipt
Where any sum is to be paid under this Agreement to the Agent for the
account of another person, the Agent may assume, unless it has been
notified to the contrary in writing, that the payment will be made when
due and may (but shall not be obliged to) make such sum available to the
person so entitled. If it proves to be the case that such payment was
not made to the Agent, then the person to whom such sum was so made
available shall on request refund such sum to the Agent together with
interest thereon sufficient to compensate the Agent for the cost of
making available such sum up to the date of such repayment and the
person by whom such sum was payable shall indemnify the Agent for any
and all loss or expense which the Agent may sustain or incur as a
consequence of such sum not having been paid on its due date.
10.5 Grossing-up for Taxes
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If at any time any Borrower is required to make any deduction or
withholding in respect of Taxes (excluding Taxes or Taxation on the
overall net income, profits or gains of a Finance Party imposed in the
jurisdiction in which its principal or lending office under the
Agreement is located) from any payment due under this Agreement and/or
the Security Documents for the account of any Finance Party (or if the
Agent is required to make any such deduction or withholding from a
payment to any Arranger or a Bank), the sum due from the relevant
Borrower in respect of such payment shall, subject to clause 10.6, be
increased to the extent necessary to ensure that, after the making of
such deduction or withholding, each Finance Party receives on the due
date for such payment (and retains, free from any liability in respect
of such deduction or withholding) a net sum equal to the sum which it
would have received had no such deduction or withholding been required
to be made and that Borrower shall indemnify each Finance Party against
any losses or costs incurred by any of them by reason of any failure of
that Borrower to make any such deduction or withholding or by reason of
any increased payment not being made on the due date for such payment,
save only to the extent that such failure by that Borrower is
attributable to a breach by a Finance Party of the warranty in clause
10.7 or of its obligation promptly to notify that Borrower of a change
in its status pursuant to clause 10.7. Such Borrower shall promptly
deliver to the Agent any receipts, certificates or other proof
evidencing the amounts (if any) paid or payable in respect of any such
deduction or withholding (other than a deduction or withholding made by
the Agent).
10.6 Exceptions to gross-up
(a) If any Bank is not or ceases to be a Qualifying Bank then (save
in circumstances where such Bank ceases to be a Qualifying Bank
by reason of any change in law or regulation or in its
application or interpretation, in each case taking effect after
the date of this Agreement) the Borrowers shall not be liable to
pay to that Bank under clause 10.5 any sum in excess of the sum
they would have been obliged to pay if that Bank had been, or
had not ceased to be, a Qualifying Bank.
(b) No Obligor incorporated in the United States or resident in the
United States for tax purposes shall be required to pay any
additional amount on account of any taxes of, or imposed by, the
United States pursuant to clause 10.5 to any Bank if such Bank
is not entitled on the date on which it becomes a party to this
Agreement to submit Internal Revenue Service Form W-8BEN (with
respect to a complete exemption under an income tax treaty) (or
any successor thereto) or Internal Revenue Service Form W-8ECI
(or any successor thereto) so as to meet its obligations to
submit such a form or other certificate pursuant to clause 10.8
or if such Bank otherwise fails to submit such a form or
certificate that it is required to submit pursuant to clause
10.8.
(c) (i) Any Bank which is a Qualifying Bank within paragraph
(b)(ii) of the definition of Qualifying Bank shall, as
soon as reasonably practicable and permissible after it
becomes a party to this Agreement submit to the relevant
tax authorities in the country of residence of such Bank
the relevant form required for the purpose of obtaining
a direction from the
59
Inland Revenue, or (as the case may require) submit to
the Agent the relevant declaration to secure, that
payment made may be made by each relevant Borrower or
(as the case may require) the Agent without any
deduction in respect of United Kingdom tax and if any
Bank fails to comply with such obligation the Borrower
shall not be obliged to pay to such Bank under clause
10.5 any sum in excess of the sum which it would have
been required to pay to such Bank had it complied with
the obligation in this clause 10.6(c)(i).
(ii) Any Bank which is a Qualifying Bank within paragraph (c)
of the definition of Qualifying Bank shall, as soon as
reasonably practicable and permissible after it becomes
a Qualifying Bank by virtue of paragraph (c) of the
definition of Qualifying Bank and ceases to be a
Qualifying Bank by virtue of paragraph (a) or (b)(i) of
the definition of Qualifying Bank or becomes a party to
this Agreement (whichever is the later) submit to the
relevant tax authorities in the country of residence of
such Bank the relevant form required for the purpose of
obtaining a direction from the Inland Revenue, or (as
the case may require) submit to the Agent the relevant
declaration to secure, that payment made may be made by
each relevant Borrower or (as the case may require) the
Agent without any deduction in respect of United Kingdom
tax and if any Bank fails to comply with such obligation
the Borrower shall not be obliged to pay to such Bank
under clause 10.5 any sum in excess of the sum which it
would have been required to pay to such Bank had it
complied with the obligation in this clause 10.6(c)(i).
(d) No Bank is obliged to deliver any form or declaration under
clause 10.6(c) if the Bank is unable to complete the form or
declaration in a manner which will enable the Borrower (or as
the case may require) the Agent to make payment to that Bank
without deduction or withholding in respect of Taxes in the
United Kingdom as a result of the introduction of or any change
in or in the interpretation or application by any relevant
authority of, any law, treaty or regulation or any practice
position or concession of the United Kingdom Inland Revenue
after the date of this Agreement.
(e) (i) Subject to clause 10.6(e)(ii) below, if any forms
previously delivered under sub-paragraph (i) or (ii) of
paragraph (d) of the definition of Qualifying Bank shall
have expired, become obsolete, invalid or inaccurate in
any respect which has resulted in the loss of any
applicable exemption from withholding and, (where the
reason for such obsolescence, invalidity or inaccuracy
is a change in, or in the interpretation or application
of, or the introduction of any law or regulation in each
case after the date of this Agreement) following not
less than thirty days' prior written notice from each
relevant US Borrower to the Agent (as to such bank or
financial institution), such bank or financial
institution shall not have delivered to the Agent and
60
such Borrower one or more then currently effective forms
described under such sub-paragraph (i) or (ii), the
relevant US Borrower shall not be obliged to pay such
Bank under clause 10.5 any sum in excess of the sum
which it would have been required to pay to such Bank
had such forms not become obsolete, invalid or
inaccurate.
(ii) Clause 10.6(e)(i) shall not apply to a bank or financial
institution which shall have been a Qualifying Bank by
virtue of paragraph (d) of the definition of Qualifying
Bank when it became a party to this Agreement if such
Qualifying Bank is not legally able to deliver such
currently effective forms described under such
sub-paragraph (i) or (ii) of paragraph (d) of the
definition of Qualifying Bank.
10.7 Qualifying Banks
(a) Each Bank warrants that it is a Qualifying Bank.
(b) Each Bank which makes an Advance to a UK Borrower warrants that
it is a Qualifying Bank by virtue of paragraph (a) of the
definition of Qualifying Bank.
(c) Each Bank agrees promptly to notify the Agent and the Borrowers
if it ceases, or intends to cease, to be a Qualifying Bank, or,
if it derives its status, or intends to derive its status, as a
Qualifying Bank from a different paragraph or sub paragraph of
the definition of Qualifying Bank.
(d) Subject to clause 10.7(e), each Bank which makes an Advance to a
UK Borrower agrees that it will not cease to be within the
charge to UK corporation tax as respects any interest payable on
that Advance, as long as that Borrower is a UK Borrower and is
obliged under this Agreement to pay interest to such Bank in
respect of an Advance made by that Bank to that Borrower.
(e) In the event that the Parent and the Agent (acting reasonably)
agree that interest paid under this Agreement by a UK Borrower
to a Bank is not treated as a distribution for UK Tax purposes,
clause 10.7(d) shall not apply.
10.8 US Tax forms
(a) Except as otherwise agreed by the Parent, each Bank (other than
a Bank organised under the federal laws of, or the laws of any
of, the United States of America or the District of Columbia)
shall, subject to paragraph (c) below, deliver to each US
Borrower and the Agent within 30 days from the date it becomes a
party to this Agreement (and prior to the expiry of any such
form previously provided by that Bank), two accurate and
complete original signed copies of US Internal Revenue Service
Form W-8BEN (with respect to a complete exemption under an
income tax treaty) or W-8ECI, whichever is applicable or any
successor or additional form allowing the US Borrower to make
payments to that Bank without deduction or withholding in
respect of
61
federal income tax in the United States of America provided that
W-8BEN or W-8ECI (or successor forms) shall be delivered no
later than the first Repayment Date after the relevant Bank
becomes a party to this Agreement.
(b) Except as otherwise agreed by the Parent, each Bank that is
organised under the federal laws of, or the laws of any of, the
United States of America or the District of Columbia shall,
subject to paragraph (c) below, deliver to each US Borrower and
the Agent within 30 days from the date it becomes a party to
this Agreement (and prior to the expiry of any such form
previously provided by the Bank) two accurate and complete
original copies of duly executed US Internal Revenue Service
Forms W-9 or any successor to such form.
(c) No Bank is obliged to deliver any form(s) under clause 10.6(b)
or paragraph (a) or (b) above if the Bank is unable to complete
the form(s) in a manner which will enable the US Borrower to
make payments to that Bank without deduction or withholding in
respect of Taxes in the United States of America as a result of
the introduction of or any change in, or in the interpretation
or application by any relevant authority of, any law, treaty or
regulation or any practice, position or concession of the US
Internal Revenue Service after the date of this Agreement.
(d) The Agent agrees that it will furnish on the date of this
Agreement (and prior to the expiry of any such form previously
provided by the Agent) to each US Borrower, with respect to fees
payable to it, two accurate and complete original signed copies
of either (i) Internal Revenue Service Forms W-8ECI (or
successor form) (if the services are performed by a US branch),
or (ii) a statement that the services will be performed entirely
outside the US, or, if appropriate, Internal Revenue Service
Form W-8BEN (establishing a complete exemption under an income
tax treaty) with respect to those services.
10.9 Claw-back of tax benefit
If following any such deduction or withholding as is referred to in
clause 10.5 any Bank shall receive or be granted a credit against or
remission for any Taxes payable by it, such Bank shall, subject to the
relevant Borrower having made any increased payment in accordance with
clause 10.5 and to the extent that such Bank can do so without
prejudicing the retention of the amount of such credit or remission and
without prejudice to the right of such Bank to obtain any other relief
or allowance which may be available to it, reimburse the Borrower with
such amount as the Bank shall in its absolute discretion (acting in good
faith) certify to be the proportion of such credit or remission as will
leave that Bank (after such reimbursement) in no worse position than it
would have been in had there been no such deduction or withholding from
the payment by the Borrower. Such reimbursement shall be made forthwith
upon such Bank certifying that the amount of the credit or remission has
been received by it. Nothing contained in this Agreement shall oblige
any Bank to rearrange its tax affairs or to disclose any information
regarding its tax affairs and computations. Without prejudice to the
generality of the foregoing, no Borrower shall, by virtue of this clause
10.9, be entitled to enquire about any Bank's tax affairs.
10.10 Bank accounts
Each Bank, the Swingline Bank and the Overdraft Bank, shall maintain, in
accordance with its usual practices, an account or accounts evidencing
the amounts from time to time lent by, owing to and paid to it under
this Agreement. The Agent shall maintain a control account showing each
Revolving Credit Advance and other sums owing by the Borrowers under
this Agreement and all payments in respect thereof made by the Borrowers
from time to time. The control account for the Overdraft Facility shall
be maintained by the Overdraft Bank and the control account for the
Swingline Facility shall be maintained by the Swingline Bank. The
control accounts shall, in the absence of manifest error, be prima facie
evidence of the amount from time to time owing by the Borrowers under
this Agreement.
10.11 Partial payments
If, on any date on which a payment is due to be made by the Borrowers
under this Agreement and/or the Security Documents, the amount received
by the Agent from the Borrowers falls short of the total amount of the
payment due to be made by the Borrowers on such date then, without
prejudice to any rights or remedies available to the Agent and the Banks
under this Agreement and/or the Security Documents, the Agent shall
apply the amount actually received from the Borrowers in or towards
discharge of the obligations of the Borrowers under this Agreement in
the following order, notwithstanding any appropriation made, or
purported to be made, by the Borrowers:
(a) firstly, in or towards payment, on a pro rata basis, of any
unpaid fees, costs and expenses of the Agent and/or the Security
Trustee under this Agreement and/or the Security Documents;
(b) secondly, in or towards payment to the Arrangers of any portion
of the arrangement fee payable under clause 9(1)(a) remains
unpaid;
(c) thirdly, in or towards payment to the Swingline Bank and the
Overdraft Bank, on a pro rata basis, of any Swingline Bank Fee
and Overdraft Bank Fee payable under clauses 9.1(d), (e) and (f)
which remains unpaid;
(d) fourthly, in or towards payment to the Banks, on a pro rata
basis, of any accrued commitment commission payable under clause
9.(1)(c) which shall have become due and payable but remains
unpaid;
(e) fifthly, in or towards payment to the Banks, the Swingline Bank
and the Overdraft Bank, on a pro rata basis, of any accrued
interest or Swingline Letter of Credit Commission which shall
have become due and payable but remains unpaid;
(f) sixthly, in or towards payment to the Banks, the Swingline Bank
and the Overdraft Bank, on a pro rata basis, of any principal
which shall have become due and payable but remains unpaid; and
63
(g) seventhly, in or towards payment of any other sum which shall
have become due but remains unpaid (and, if more than one such
sum so remains unpaid, on a pro rata basis).
The order of application set out in this clause 10.11(d) - (g)
shall be varied by the Agent if the Banks so direct, without any
reference to, or consent or approval from, the Borrowers.
10.12 Calculations
All interest and other payments of an annual nature under this Agreement
shall accrue from day to day and be calculated on the basis of actual
days elapsed and (in the case of Sterling) a 365 day year and (in the
case of currencies other than Sterling) a 360 day year. In calculating
the actual number of days elapsed in a period which is one of a series
of consecutive periods with no interval between them or a period on the
last day of which any payment falls to be made in respect of such
period, the first day of such period shall be included but the last day
excluded.
10.13 Certificates
Any certificate or determination of any Finance Party as to any rate of
interest or any amount payable under this Agreement shall, in the
absence of manifest error, be prima facie evidence of the rate of
interest or amount payable.
10.14 Effect of monetary union
If the country of any national currency in which any amount is expressed
to be payable under this Agreement participates in Economic and Monetary
Union in accordance with Article 109j of the Treaty, then:
(a) any amount expressed to be payable under this Agreement in that
national currency shall be made in that national currency or in
euro, as designated by the Agent after consultation with the
Parent and the Banks;
(b) any amount so required to be paid in euro shall be converted
from that national currency at the rate stipulated pursuant to
Article 109l(4) of the Treaty and payment of the amount in euro
derived from such conversion shall discharge the obligation of
the relevant party to pay such national currency amount in
accordance with, and subject to, the Regulation(s) made pursuant
to Article 109l(4) of the Treaty;
(c) after consultation with the Parent and the Banks the Agent shall
be entitled to make such amendments to this Agreement as
necessary to take account of monetary union and any consequent
changes in market practices (whether as to the settlement or
rounding of obligations, the calculation of interest or
otherwise howsoever) provided that such amendments will not
create obligations for the Borrowers which have an overall
financial impact that is materially more onerous than the
obligations created by this Agreement.
64
Any amendment so made to this Agreement by the Agent shall be
promptly notified to the Banks and the Parent by the Agent and
shall be binding on all the Finance Parties and all the
Borrowers.
10.15 Continuation of the Conversion Advance in Sterling or euros
Where the Conversion Advance is outstanding during an Interest Period
(the "first period") in Sterling or euros, the Agent shall determine the
equivalent in Sterling or, as the case may be, euros of the Dollar
Amount of the Conversion Advance on the second Banking Day before the
beginning of the succeeding Interest Period and if such equivalent so
determined falls short of the amount of Sterling or, as the case may be,
euros outstanding at the beginning of the first period by more than 3
per cent the Parent shall forthwith pay to the Agent for the account of
the Banks an amount in Sterling or, as the case may be, euros equal to
such shortfall.
11 Representations and warranties
11.1 Representations and warranties
Each Borrower makes the following representations and warranties to each
of the Finance Parties:
(a) Due incorporation: the Obligors and the Material Subsidiaries
are duly established or incorporated (and in the case of a
corporation incorporated in the United States, validly existing
and in good standing) under the laws of the respective countries
and/or (where relevant) states of their incorporation as limited
liability companies and have power to carry on their respective
businesses as they are now being conducted and to own their
respective property and other assets;
(b) Corporate power: each Obligor has power to execute, deliver and
perform its obligations under this Agreement and the Security
Documents to which it is a party and (in the case of the
Borrowers) to borrow the Commitments; all necessary corporate,
shareholder and other action has been taken (or, in the case of
the Security Documents, will be taken prior to their execution)
to authorise the execution, delivery and performance of the same
and no limitation on the powers of the Borrowers to borrow will
be exceeded as a result of borrowings under this Agreement or on
the powers of the Guarantors to give guarantees will be exceeded
as a result of the Guarantees;
(c) Binding obligations: this Agreement constitutes and the Security
Documents, when executed and delivered will constitute, valid
and legally binding obligations of each Obligor which is a party
thereto enforceable in accordance with their respective terms,
save as disclosed in the qualifications to the relevant legal
opinions provided under part A of schedule 4;
(d) No conflict with other obligations: the execution and delivery
of, the borrowing of the Commitments and the performance of
their obligations under, and
65
compliance with the provisions of, this Agreement by the
Borrowers and the Security Documents to which they are a party
by each Obligor will not (i) contravene, to any material extent,
any existing applicable law, statute, rule or regulation or any
judgment, decree or permit to which they are subject, (ii)
(other than in the case of the Existing Group Facilities)
conflict with, to any material extent, or result in any breach
of any of the material terms of, or constitute a material
default under, any agreement or other instrument to which any
Obligor is a party or is subject or by which it or any of its
property is bound, (iii) contravene or conflict with any
provision of the Memorandum and Articles of Association,
Articles of Incorporation, Bye-laws, Statutes or other
constitutional documents of any Obligor or (iv) result in the
creation or imposition of or oblige any Obligor to create any
Encumbrance (other than a Permitted Encumbrance) on any of its
undertakings, assets, rights or revenues;
(e) Consents obtained: every material consent from, authorisation,
licence or approval of, or registration with or declaration to,
governmental or public bodies or authorities or courts required
by any Obligor to authorise, or required by any Obligor in
connection with, the execution, delivery, validity,
enforceability or admissibility in evidence of this Agreement
and the Security Documents to which it is a party or the
performance by any Obligor of its obligations under this
Agreement and the Security Documents to which it is a party has
been obtained or made (or, in the case of the Security
Documents, will be obtained or made, as the case may be, prior
to their execution) and is (or will be) in full force and effect
in all material respects and there has been no default in the
observance of the material conditions or restrictions (if any)
imposed in, or in connection with, any of the same;
(f) No filings required: any notarisation, filing, recording,
registration or enrolment in any court, public office or
elsewhere and any stamp, registration or similar tax or charge
payable on or in relation to this Agreement or any of the
Security Documents necessary to ensure the legality, validity,
enforceability or admissibility in evidence of this Agreement or
any of the Security Documents has been made or paid, as the case
may be (or, in the case of the Security Documents, will be made
or paid, as the case may be, prior to their execution), and this
Agreement and the Security Documents are in proper form for
their enforcement in the courts of England or of any
jurisdiction whose laws are expressed to govern the relevant
Security Document;
(g) No litigation: no litigation, arbitration or administrative
proceeding is taking place, pending or, to the knowledge of the
directors of any Obligor or Material Subsidiary, threatened
against any member of the Group which would or is reasonably
likely, in the opinion of the Agent (acting reasonably), if
adversely determined to have a Material Adverse Effect;
(h) No defaults: (other than in the case of the Existing Group
Facilities as a result of the entry into of this Agreement and
the Security Documents by the Obligors) no member of the Group
is (nor would with the giving of notice or lapse of time or the
satisfaction of any other condition or any combination
66
thereof be) in breach of or in default under any agreement
relating to Borrowed Money to which it is a party or by which it
may be bound (unless the aggregate principal amount of the
Borrowed Money pursuant to the agreements which have been
breached is less than or equal to L1,000,000 or the equivalent
in the currencies in which the sums are payable) and no other
Default has occurred and is continuing;
(i) Financial statements correct and complete: the then latest
audited consolidated financial statements of the Group in
respect of the relevant Fiscal Year as delivered to the Agent
under clause 12.1(e) have been prepared in accordance with
generally accepted accounting principles and practices in the
United Kingdom which have been consistently applied and present
fairly and accurately the consolidated financial position of the
Group as at the date to which such financial statements were
made up and the consolidated results of the operations of the
Group for the relevant Fiscal Year ended on such date and, as at
such date, no member of the Group had any significant
liabilities (contingent or otherwise) or any losses which are
required to be and which are not disclosed by, or reserved
against or provided for in, such financial statements;
(j) Choice of law: the choice by the relevant Obligors of English
law to govern this Agreement and the Security Documents to which
they are a party (to the extent that the same are expressed to
be governed by English law) and the submission by the relevant
Obligors to the non-exclusive jurisdiction of the High Court of
Justice in England (to the extent that the relevant Obligors so
submit) are valid and binding;
(k) No withholding Taxes: (on the basis that all Banks are
Qualifying Banks at the date of this Agreement and that any Bank
required to do so and the Agent has provided the requisite tax
forms pursuant to clause 10.8) no Taxes are imposed by
withholding or otherwise on any payment to be made by any
Obligor under this Agreement or any Security Document or are
imposed on or by virtue of the execution or delivery by any
Obligor of this Agreement or any Security Document to which it
is a party or any document or instrument to be executed or
delivered under this Agreement or any Security Document to which
it is a party;
(l) Compliance with consents and licences: every material consent,
authorisation, licence or approval required by any Obligor or
Material Subsidiary in connection with the conduct of its
business and the ownership, use, exploitation or occupation of
their respective property and assets has been obtained and is in
full force and effect in all material respects and there has
been no default in the observance of any of the material
conditions and restrictions (if any) imposed in, or in
connection with, any of the same and, to the knowledge of the
directors of each Obligor or Material Subsidiary, no
circumstances have arisen whereby any material remedial action
is likely to be required to be taken by, or at the expense of,
any Obligor or Material
67
Subsidiary under or pursuant to any law or regulation applicable
to the business, property or assets of any Obligor or Material
Subsidiary;
(m) Ownership of assets: all assets which are necessary for the
business of the Group are beneficially owned, licensed or leased
by the relevant members of the Group free and clear of any
Encumbrance other than a Permitted Encumbrance;
(n) Group Structure Book: set forth in the Group Structure Book is a
substantially complete and accurate representation of the
structure and members of the Group as at the date of this
Agreement;
(o) Margin stock: no member of the Group is engaged principally or
as one of its major activities in the business of extending
credit for the purpose of purchasing or carrying margin stock
and none of the proceeds of any drawing under any of the
Facilities will be or has been used, directly or indirectly, to
purchase or carry any margin stock or to extend credit to others
for the purpose of purchasing or carrying margin stock;
(p) Not an investment company: (in the case of each US Borrower) it
is not an "investment company" as defined in the United States
Investment Company Act of 1940 nor is it subject to any United
States federal or state statute or regulation limiting its
ability to incur Borrower Money;
(q) ERISA: none of the Parent or the ERISA Affiliates are making or
accruing an obligation to make contributions or has within any
of the five calendar years immediately preceding the date of
this Agreement made or accrued an obligation to make
contributions to any Multiemployer Plan; each Plan is in
compliance in all material respects with ERISA and the Code;
each of the Parent and the ERISA Affiliates has made all
contributions except as would not result in a material liability
to or under each such Plan required by law within the applicable
time limits prescribed thereby, the terms of such Plan, or any
contract or agreement requiring contributions to a Plan, and
neither the Parent nor any of the ERISA Affiliates has incurred
or reasonably expects to incur any material liability to PBGC
other than for premiums;
(r) Intellectual Property Rights
(i) the Intellectual Property Rights owned by any member of
the Group which are material in the context of the Group
as a whole are free from any Encumbrance other than
Permitted Encumbrances and any other rights or interests
in favour of third parties (save for those permitted by
this Agreement) and any other Intellectual Property
Rights owned by any member of the Group are free from
any Encumbrance and any other rights or interests in
favour of third parties other than Permitted
Encumbrances, save as permitted either in the ordinary
course of business or which would not or are not
reasonably likely to otherwise have a Material Adverse
Effect
68
and save for those created or to be created by or pursuant to
the Security Documents or permitted by this Agreement;
(ii) the Intellectual Property Rights owned by or licensed to
each member of the Group are all the Intellectual
Property Rights required by them to carry on their
respective businesses, other than Intellectual Property
Rights the absence of rights to which would have no
Material Adverse Effect and no member of the Group in
carrying on its business (so far as the directors of the
Parent are aware) infringes any Intellectual Property
Rights of any third party in any respect where such
infringement would have, or is reasonably likely (in the
opinion of the Agent acting on the instructions of the
Majority Banks, acting reasonably) to have, a Material
Adverse Effect;
(iii) no Intellectual Property Rights which are material in
the context of the Group as a whole owned by any member
of the Group are, to the knowledge of the directors of
the Parent, being infringed, which infringement would
have, or is reasonably likely (in the opinion of the
Agent acting on the instructions of the Majority Banks,
acting reasonably) to have, a Material Adverse Effect;
and
(iv) no member of the Group has any knowledge, nor is it
aware of any claim, that it is or is reasonably likely
to be liable to any person for any material copyright
infringement of any nature whatsoever as a result of the
operation of its business, which infringement would
have, or is reasonably likely (in the opinion of the
Agent acting on the instructions of the Majority Banks,
acting reasonably) to have, a Material Adverse Effect;
(s) Material Adverse Effect: since 31 December 1999 there has been
no development or event which has had or would reasonably be
expected to have a Material Adverse Effect;
(t) Due Diligence:
(i) (as at the date of each relevant report) the facts
stated in the Lighthouse Information Package were, to
the best of the knowledge of the directors of the
Parent, true and accurate in all material respects and
not misleading in any material respect;
(ii) to the best of the knowledge of the directors of the
Parent, there are no other facts the omission of which
would make any fact or statement in the Lighthouse
Information Package misleading in any material respect
as at the date of such due diligence or information; and
to the best of the knowledge of the directors of the
Parent nothing has occurred since the respective dates
of each of the reports and other documents comprising
the Lighthouse Information Package which would be
reasonably likely to render any fact stated in the
Lighthouse Information Package untrue or misleading in
any material respect in the context of the transactions
contemplated hereby; and
69
(u) Environmental matters
(i) the Parent is in compliance with the undertakings set
out in clause 12.1(q), in each case in respect of all
members of the Group;
(ii) no member of the Group has received notice of any
Environmental Claim and no member of the Group is in
breach of any Environmental Law or any Environmental
Licence to the extent that the same would be reasonably
likely in the opinion of the Agent (acting reasonably)
to have a Material Adverse Effect; and
(iii) there is no Environmental Claim pending or to the
knowledge of the directors of any Obligor or a Material
Subsidiary threatened against any member of the Group
which, if adversely to its knowledge determined, would
be reasonably likely in the opinion of the Agent (acting
reasonably) to have a Material Adverse Effect.
11.2 Repetition
The representations and warranties in clause 11.1 (other than clauses
11.1(e), 11.1(g), 11.1(h), 11.1(k), 11.1(l), 11.1(m), 11.1(n), 11.1(r),
11.1(s), 11.1(t), and 11.1(u) (the "excluded representations and
warranties") (and so that the representation and warranty in clause
11.1(i) shall for this purpose refer to the then latest audited
financial statements delivered to the Agent under clause 12.1(e)) shall
be deemed to be repeated by each Borrower on and as of each Drawdown
Date and each Repayment Date as if made with reference to the facts and
circumstances existing on each such day.
12 Undertakings
12.1 Positive undertakings
Each Borrower undertakes with each of the Finance Parties that, from the
date of this Agreement and so long as any moneys are owing under this
Agreement or remain available for drawing by the Borrowers, it will
(save where permitted to do otherwise by the prior written consent of
the Agent, acting upon the instructions of the Majority Banks):
(a) Notice of Default
(i) (in the case of the Parent) promptly upon becoming aware of the
same inform the Agent of any occurrence which would or is
reasonably likely in its opinion to have a Material Adverse
Effect; and
(ii) (in the case of each Borrower) promptly upon becoming aware of
the same inform the Agent of any Default;
(b) Consents and licences: without prejudice to clauses 3 and 11.1,
obtain or cause to be obtained, maintain in full force and
effect and comply in all material respects with the conditions
and restrictions (if any) imposed in, or in
70
connection with, every material consent, authorisation, licence
or approval of governmental or public bodies or authorities or
courts and do, or cause to be done, all other acts and things
which may from time to time be necessary under applicable law
for the continued due performance of all its obligations under
this Agreement, and its obligations and the obligations of its
Subsidiaries under the Security Documents to which it or any of
its Subsidiaries is a party, in the case of such Security
Documents, prior to the execution of such Security Documents;
(c) Use of proceeds: use the proceeds of drawings under this
Agreement exclusively for the respective purposes specified in
clause 1.1;
(d) Pari passu: ensure that its obligations under this Agreement
shall, without prejudice to the provisions of clause 12.2, at
all times rank at least pari passu with all its other present
and future unsecured and unsubordinated Indebtedness with the
exception of any obligations which are mandatorily preferred by
law and not by contract;
(e) Financial statements: (in the case of the Parent) prepare
consolidated financial statements for the Group in accordance
with generally accepted accounting principles and practices in
the United Kingdom consistently applied in respect of each
Fiscal Year and cause the same to be reported on by its Auditors
and prepare unaudited consolidated financial statements in
respect of each Fiscal Half-Year ending 30th June (interims) and
each Fiscal Year (the preliminaries) on the same basis as the
annual statements and deliver sufficient copies of the same to
the Agent for distribution to all the Banks as soon as
practicable but not later than 150 days (in the case of audited
financial statements) or 90 days (in the case of unaudited
financial statements) after the end of the financial period to
which they relate.
If, as a result of changes in accounting principles and
practices generally, any financial statements of the Group
delivered or to be delivered to the Agent under this clause
12.1(e) are not to be or, as the case may be, have not been
prepared in accordance with the Original Accounting Principles,
the Parent shall deliver to the Agent details of such
adjustments as need to be made to the figures used in the
calculation of the financial covenants contained in clause 13.1
to bring them into line with the Original Accounting Principles
to the extent that such adjustments are required for the
purposes of determining compliance (or otherwise) with the
provisions of clause 13.1.
On the request of the Parent, the Parent and the Agent (acting
on the instructions of the Majority Banks), shall negotiate in
good faith for a period of up to 28 days with a view to agreeing
such amendments to the covenants in clause 13.1 and/or the
definitions of the terms used in them as are necessary to give
the Banks at least the same protection to that provided at the
date of this Agreement but which amendments are no more onerous
than the terms of this Agreement at the date of signing. If
amendments are agreed by the Parent and
71
the Agent (with the approval of the Majority Banks), those
amendments shall take effect in accordance with the terms of
that agreement.
(f) Quarterly Management Accounts: (in the case of the Parent) in
respect of each Fiscal Quarter prepare unaudited consolidated
Quarterly Management Accounts for the Group in each case
containing:
(i) quarterly historic profit and loss accounts prepared on a
consolidated basis including financial analysis by profit
centres, by reference to exchange rates used in the then current
annual budget for that Fiscal Year in respect of (a) such Fiscal
Quarter and (b) that Fiscal Year to that date together with, in
each case, a comparison of actual performance with (x)
performance projected by the annual budget for that Fiscal Year;
and (y) performance during the equivalent Fiscal Quarter during
the immediately preceding Fiscal Year, each such comparison to
include for the Group as a whole the profit and loss accounts
for such period, such comparisons to be accompanied by an
explanation of the reasons for the major differences between
actual and projected performance; and
(ii) a breakdown of major accounts gains and losses during each such
Fiscal Quarter by members of the Group;
or omitting any such information or detail or containing such
other information or to such other level of detail as may, from
time to time, be approved by the Agent (acting on the
instructions of the Majority Banks, acting reasonably) in
writing and deliver a copy of the same to the Agent for
distribution to all of the Banks as soon as practicable but not
later than 40 days after the Fiscal Quarter to which they
relate;
(g) Delivery of reports: deliver to the Agent, for distribution to
the Banks, sufficient copies for all the Banks of each of the
following documents, in each case at the time of issue thereof
or (in the case of the Compliance Certificates referred to in
clause 12.1(g)ii) together with the financial statements
prepared pursuant to clause 12.1(e) in respect of the financial
period to which such certificate relates:
(i) every report, circular, notice or like document sent by the
Parent to its shareholders or by the Parent or Obligor to its
creditors generally; and
(ii) a Compliance Certificate issued by an Authorised Officer, such
Compliance Certificate to be issued without personal liability
on the part of the person named therein as issuer, stating that
the Parent as at the end of the relevant period was in
compliance with the covenants and undertakings in clause 13.1
(or if it was not in compliance indicating the extent of the
breach);
(h) Provision of further information: provide the Agent with such
financial and other information concerning the Group and its
affairs as the Agent or any Bank (acting through the Agent) may
from time to time reasonably require;
72
(i) Insurance: insure and, in the case of the Parent, procure that
each of its Material Subsidiaries will insure and keep insured
all its properties and assets with underwriters or insurance
companies of repute to such extent and against such risks as
prudent companies engaged in businesses similar to those of the
relevant member of the Group normally insure;
(j) Pension schemes: contribute (or, in the case of the Parent,
procure that the members of the Group contribute) to the pension
schemes for the time being applying to their employees in the
US, except to the extent it could not result in material
liability, and elsewhere at the rate required of them under all
applicable laws or, if greater, in accordance with the terms
governing such pension schemes provided that nothing in the
Agreement shall prevent a member of the Group terminating its
liability to contribute to a pension scheme in accordance with
its terms, amending a pension scheme and/or establishing new
pension arrangements or amending a pension scheme;
(k) Compliance with laws and regulations: comply and, in the case of
the Parent, procure that the Material Subsidiaries and other
Obligors comply, with the terms and conditions of all laws,
regulations, agreements, licences and concessions material to
the carrying on of its business;
(l) Interest rate hedging and foreign exchange hedging: in the case
of the Parent, ensure that with effect from the First Drawdown
Date the Hedging Strategy is implemented by the entry into of
appropriate Derivatives Contracts from time to time and will
ensure that no member of the Group enters into any other
Derivatives Contract which is speculative or does not relate to
the hedging of exposures or liabilities of members of the Group
incurred in the ordinary course of trading;
(m) ERISA:
(i) promptly and in any event within thirty days after the
filing thereof with the Internal Revenue Service of the
United States, to deliver to the Agent copies of each
Schedule B (Actuarial Information) to the Annual Report
(IRS Form 5500 Series) if required with respect to each
Plan;
(ii) promptly and in any event within ten Banking Days after
any Obligor knows or has reason to know that any ERISA
Event (i) has occurred or (ii) will occur in the case of
any ERISA Event which requires advance notice under
Section 4043(b)(3) of ERISA, to deliver to the Agent a
statement of the treasurer or chief financial officer of
the Parent or such other member of the Group or ERISA
Affiliate describing such ERISA Event and the action, if
any, which such member of the Group or such ERISA
Affiliate proposes to take with respect thereto;
(iii) promptly and in any event within five Banking Days after
receipt thereof by the Obligor or ten Banking Days after
receipt thereof by any member of the Group or any ERISA
Affiliate other than the Obligor, to deliver to the
73
Agent copies of each notice from PBGC stating its
intention to terminate any Plan or to have a trustee
appointed to administer any Plan; and
(iv) ensure that, during the term of this Agreement, neither
any Subsidiary incorporated in the United States nor any
ERISA Affiliate shall agree to contribute, or assume any
obligation to contribute, to any Multiemployer Plan
without notifying the Majority Banks;
(n) Margin Stock: ensure that no amounts raised under this Agreement
will be used, directly or indirectly, to purchase or carry
margin stock;
(o) Guarantees:
(i) subject to clause 12.1(o)(ii), in the case of the Parent
procure unless and to the extent that such execution and
delivery and granting of a Guarantee would be
unavoidably unlawful or is prohibited by statute or
beyond the corporate power of the company or corporation
concerned (and then only if such corporate power cannot
be modified or extended to allow such execution,
delivery and granting of security) or would be
reasonably likely to result in the directors of the
company or corporation concerned incurring actual
personal liabilities that each Material Subsidiary
incorporated or established in England and Wales or the
United States of America (or any State thereof) and
which has not already entered into a Guarantee, promptly
upon becoming a Material Subsidiary or becoming a member
of the Group (whether a Subsidiary becoming a member of
the Group is a Material Subsidiary shall be tested at
the time that it becomes a member of the Group by
reference to the financial statements of that Subsidiary
for the previous 12 calendar months, and the Parent
undertakes with each of the Finance Parties to procure
that on an acquisition of a Subsidiary sufficient
financial information is delivered to the Agent to
determine compliance or otherwise with this clause
12.1(o)), executes and delivers a Guarantee and a deed
supplemental to the Security Trust Deed and provides the
Agent with such documents and evidence as are set out in
part C of schedule 4;
(ii) the Parent shall only be obliged to use reasonable
endeavours to procure the provision of a guarantee by a
Material Subsidiary pursuant to clause 12.1(o)(i), where
the Parent has notified the Agent that, in good faith,
it believes it will not be commercially practicable to
obtain such guarantee;
(p) Preference shares: redeem preference shares no earlier than
their stated maturity as at the date of this Agreement (which in
the case of Lighthouse and its Subsidiaries are set out in
schedule 13) or, in the case of preference shares issued in
accordance with clause 12.2(h), no earlier than their stated
maturity as at the date of their issue;
74
(q) Environmental: (and will procure that each other member of the
Group will) comply with all Environmental Laws and Environmental
Licences applicable to its business to the extent that a failure
to so comply would be reasonably expected to have a Material
Adverse Effect;
(r) Authorised Officers: ensure that any replacement or new
Authorised Officer has provided the Agent with evidence
satisfactory to it of such new officer's authority and a
specimen of his signature prior to signing any Compliance
Certificates, Drawdown Notices, L/C Application or other
notices, requests or confirmations referred to in this Agreement
or relating to the facilities granted pursuant to this
Agreement; and
(s) Information Memorandum: in the case of the Parent, it will make
the following representation and warranty to the recipients of
each version of the Information Memorandum:
(t) "All factual statements contained in the Information Memorandum
are true and accurate in all material respects as at the date of
the Information Memorandum and not misleading in any material
respect and all expressions of opinion contained therein
genuinely reflect the opinions of the directors of the Parent as
at such date and are based on reasonable assumptions; all
reasonable enquiries as at the date of the Information
Memorandum have been made as at that date to verify the facts
and statements contained therein; all projections and forecasts
contained therein and the assumptions on which such projections
and forecasts are based on and are arrived at after due and
careful consideration and enquiry and do represent the views of
the directors of the Parent as at the date of the Information
Memorandum; and to the best of the knowledge of the directors of
the Parent there are no other facts the omission of which would
make any fact or statement therein misleading in any material
respect as at that date (provided that, so far as the above
representation relates to matters concerning Lighthouse and its
Subsidiaries which are acquired pursuant to the Lighthouse
Acquisition, it shall be qualified as being to the best of the
knowledge of the directors of the Parent)".
12.2 Negative undertakings
Each Borrower undertakes with each of the Finance Parties that, from the
date of this Agreement and so long as any moneys are owing under this
Agreement or remain available for drawing by the Borrowers, without the
prior written consent of the Agent acting on the instructions of the
Majority Banks:
(a) Negative pledge: save for Permitted Encumbrances it will not
permit any Encumbrance by any member of the Group to subsist,
arise or be created or extended over all or any part of its
present or future undertakings, assets, rights or revenues to
secure or prefer any present or future Indebtedness of any
member of the Group or any other person;
75
(b) No other Borrowed Money or finance transactions: it will not,
and will procure that no other member of the Group will, incur
or permit to exist on its behalf any obligations in respect of
Borrowed Money, including Finance Leases, whether on or off
balance sheet, to any person, or any sale and leaseback except:
(i) Borrowed Money arising from normal trade credit;
(ii) Borrowed Money in respect of receivables discounting
facilities provided that the aggregate amount of such
Borrowed Money does not exceed L5,000,000 (or its
equivalent) at any time;
(iii) the Borrowed Money of any persons acquired by any member
of the Group pursuant to the D Acquisition provided that
such Borrowed Money at no time exceeds Korean Won
28,600,000,000 (or its equivalent) in aggregate in
respect of receivables discounting facilities (or any
refinancing thereof by other receivables discounting
facilities), Korean Won 56,600,000,000 (or its
equivalent) in aggregate in respect of debenture stock
issued by D (or Korean Won 28,600,000,000 (or its
equivalent) in aggregate in respect of any refinancing
of such debenture stock) and Korean Won 23,600,000,000
(or its equivalent) in aggregate in respect of any other
Borrowed Money of such acquired persons (or any
refinancing thereof);
(iv) any Borrowed Money of any person (other than pursuant to
the D Acquisition or the Lighthouse Acquisition)
acquired by any member of the Group after the date of
this Agreement, where such Borrowed Money was existing
at the time of such acquisition and was not incurred in
contemplation of, or in connection with, that
acquisition and where no member of the Group other than
the person so acquired has any obligation (actual or
contingent) in respect of such Borrowed Money and where
such Borrowed Money is repaid or otherwise discharged
within 6 months of such acquisition;
(v) any Borrowed Money constituted by vendor loan notes
issued or to be issued by any member of the Healthworld
Group in accordance with the terms of any acquisition
agreement entered into by a member of the Healthworld
Group prior to the date of this Agreement and any bank
guarantee facilities relating to such notes but not
exceeding in aggregate L7,500,000;
(vi) Borrowed Money not exceeding Australian dollars
10,000,000 in aggregate in respect of working capital
facilities made available in Australia to members of the
Group;
(vii) Borrowed Money not exceeding L5,000,000 (or its
equivalent) in respect of the cash management
arrangements of the Group;
76
(viii) Borrowed Money in respect of the Facilities and (if
clause 4.13 applies) the Existing Group Facilities
provided that the principal amount of such facilities is
not increased or (if clause 4.11 or 4.12 applies) the
Existing Group Facilities provided that such facilities
shall be repaid and cancelled in full on the First
Drawdown Date;
(ix) Indebtedness in respect of Finance Leases provided that
the aggregate amount of the principal element of the
Indebtedness under such Finance Leases does not exceed
L2,000,000 (or its equivalent) at any time;
(x) Borrowed Money owed to members of the Zenith Group;
(xi) External Refinancings provided that the Aggregate Net
Proceeds thereof are applied in accordance with clause
8.6(a);
(xii) performance bonds issued by a member of the Group in
respect of the obligations of another member of the
Group in the ordinary course of trading;
(xiii) Derivatives Contracts entered into in accordance with
clause 12.1(l);
(xiv) the Zenith Guarantee;
(xv) Borrowed Money owed by one member of the Group to
another member of the Group in the ordinary course of
business;
(xvi) Borrowed Money of the D Group in respect of guarantees
issued by banks on behalf of the D Group to media
authorities in Korea in connection with bona fide
arrangements for maintenance of media accreditation; and
(xvii) Borrowed Money in addition to that permitted by clauses
12.2(b)(i) to (xvi) not exceeding L16,000,000 (or its
equivalent) in aggregate at any given time;
(c) No merger: save pursuant to the Lighthouse Acquisition or with
another member of the Group pursuant to a Group reorganisation
on a solvent basis it will not permit an Obligor to merge with
any other company or person in circumstances where the Obligor
ceases to exist or where the obligations of such Obligor to the
Finance Parties are detrimentally affected;
(d) Disposals: it will not and will procure that none of its
Subsidiaries will sell, transfer, lend or otherwise dispose of
or cease to exercise direct control over any Restricted Assets
(whether by any of a Trade Sale, Flotation or otherwise and
whether by one or a series of transactions related or not)
except that disposals are permitted to the extent that:
(i) in any Fiscal Year, the Group does not dispose of
Restricted Assets the aggregate Relevant Value of which
is more than 15 per cent. of PBIT
77
of the Group for the previous Fiscal Year calculated by
reference to the relevant audited consolidated accounts
of the Group. (For the purposes of this clause
12.2(d)(i), the "Relevant Value" of any Restricted Asset
shall be that part of PBIT of the Group attributable to
that Restricted Asset, calculated by reference to the 4
consecutive Fiscal Quarters ending with the latest
Fiscal Quarter for which Quarterly Management Accounts
have been delivered or, in the case of any Restricted
Assets which are interests in freehold or leasehold
property (or buildings and fixtures thereon), shall be
the consideration (including any deferred consideration
or purchase price adjustment receivable in the then
current Fiscal Year) for such disposal);
(ii) the disposal is a transfer from one member of the Group
to another member of the Group;
(iii) they are disposals of parts of the D Group as provided
in the M.O.U.;
(e) Loans and guarantees: save as permitted under the terms of this
Agreement, it will not, and will procure that none of its
Subsidiaries will, make any loans, grant any credit (except for
normal trade credit in the ordinary course of day-to-day
trading) or give any guarantee save for:
(i) Permitted Guarantees to or for the benefit of any
person;
(ii) loans and guarantees in any Fiscal Year where the amount
of such loan or the amount of such guarantee (as the
case may be), when aggregated with the consideration for
acquisitions or investments over and above Permitted
Acquisitions in such Fiscal Year which are funded out of
the proceeds of Borrowed Money, does not exceed the
relevant limits in clause 12.2(f) below; and
(iii) loans from one member of the Group to another entered
into in the ordinary course of business;
(f) Acquisitions: save for Permitted Acquisitions, it will not, and
will procure that none of its Subsidiaries will, acquire or make
any investment in any companies, joint ventures or partnerships
or other persons or acquire any businesses (or interests
therein) funded in whole or in part out of the proceeds of
Borrowed Money:
(i) save for investments in, or the acquisition of,
businesses and companies which are related or
complementary to the existing businesses of the Group
and where the consideration funded out of the proceeds
of Borrowed Money (which shall include for these
purposes the amount of any deferred consideration which
is so funded and payable in the then current Fiscal
Year, the amount of Borrowed Money assumed by the Group
as part of such acquisition and the amount payable in
the then current Fiscal Year on the redemption of any
shares or stock issued by
78
any member of the Group as part of an acquisition or
investment and which are redeemable at the option of the
holder thereof or which mature or are mandatorily
redeemable) payable by the Group in respect of all such
acquisitions or investments in any Fiscal Year when
aggregated with all loans made pursuant to clause
12.2(e)(ii) shall not exceed $40,000,000 (or its
equivalent) ("acquisition allowance");
(ii) save for investments in, or the acquisition of, shares
in the companies set out in the Group Structure Book as
companies in which a member of the Group holds voting
shares as at the date of the Group Structure Book; and
any part of the acquisition allowance unused in a Fiscal Year
may be carried forward to the next succeeding Fiscal Year only
and any unused carried forward acquisition allowance shall be
lost and deferred consideration for an acquisition shall be
treated as reducing the acquisition allowance for the Fiscal
Year in which it falls to be paid and shall not, when aggregated
with the acquisition consideration paid in such Fiscal Year,
exceed the acquisition allowance for that Fiscal Year;
(g) Change of business: it will not, and will procure that none of
its Subsidiaries will make any material change to the general
nature of its business which would constitute a material change
in the nature of the business of the Group taken as a whole from
that carried on at the date of this Agreement;
(h) Preference Shares: it will not, and will procure that none of
its Subsidiaries will, issue any shares or stock which are
redeemable at the option of the holder thereof or which mature
or are mandatorily redeemable or which are convertible or
exchangeable for Borrowed Money of the Group save as permitted
under clause 12.2(f) or as set out in schedule 13; and
(i) The Lighthouse Acquisition: it will not, and will procure none
of its Subsidiaries will, declare the Lighthouse Acquisition
unconditional without first obtaining the approval of the
Lighthouse Acquisition by an ordinary resolution passed by the
shareholders of the Parent at a duly convened meeting of such
shareholders and will, immediately such resolution is passed,
deliver to the Agent a copy of such resolution, duly certified
as a true complete and up-to-date copy by an Authorised Officer
of the Parent.
13 Financial covenants
13.1 Covenants
The Parent undertakes with each of the Finance Parties that so long as
any moneys are owing under this Agreement or any of the Commitments
remain outstanding it will:
(a) Net Interest Cover
79
ensure that on 30 June 2000 and on the last day of each Fiscal
Half-Year thereafter until the Fiscal Half-Year ending 31
December, 2001, the ratio of PBIT in respect of the immediately
preceding 12 months to Consolidated Net Interest Expenditure in
respect of such 12 months is not less than 3.75:1 and on the
last day of each Fiscal Half-Year thereafter ensure that such
ratio shall be not less than 4:1.
(b) Maximum Gross Debt: Adjusted PBIT
ensure that on 30 June 2000 and on the last day of each Fiscal
Half-Year falling thereafter until the Fiscal Half-Year ending
31 December, 2001, the ratio of Consolidated Gross Borrowings
(calculated on the basis of the average daily outstandings
during the Fiscal Half-Year ending on the last day of the
relevant Fiscal Half-Year) to Adjusted PBIT in respect of the
immediately preceding 12 months shall not be greater than 2.75:1
and on the last day of each Fiscal Half-Year thereafter ensure
that such ratio shall be not greater than 2.5:1.
13.2 Original Accounting Principles
The expressions used in clause 13 shall be calculated in accordance with
the Original Accounting Principles as adjusted in accordance with clause
12.1(e).
14 Events of Default
14.1 Events of Default
Each of the events and circumstances set out below is an Event of
Default (whether or not caused by any reason outside the control of any
member of the Group):
(a) Non-payment: any Borrower fails to pay any sum due from it under
this Agreement in the currency, at the time and in the manner
stipulated in this Agreement unless (a) such failure results
only from technical difficulties in the transfer of funds and
(b) such failure is remedied within two Banking Days of the due
date; or
(b) Breach of certain obligations: any Borrower commits any breach
of or omits to observe any of the obligations or undertakings
expressed to be assumed by it under clauses 4.11, 4.12, 4.13,
12.2 and 13.1; or
(c) Breach of other obligations: any Obligor commits any breach of
or omits to observe any of the obligations or undertakings
expressed to be assumed by it under this Agreement or the
Security Documents to which it is a party (other than failure by
the Borrower to pay any sum when due or any breach of the
provisions of clauses 12.2 and 13.1) and, in respect of any such
breach or omission which in the reasonable opinion of the
Majority Banks is capable of remedy, such action as the Agent or
the Security Trustee, as relevant may require shall not have
been taken within 10 Banking Days of the Agent or the
80
Security Trustee, as relevant notifying the Parent of such
default and of such required action; or
(d) Misrepresentation: any representation or warranty made or deemed
to be made or repeated by or in respect of any Obligor in or
pursuant to this Agreement or the Security Documents or in any
notice, certificate or statement referred to in and to be
delivered by any Obligor under this Agreement or the Security
Documents is or proves to have been incorrect or misleading in
any material respect at the date made or deemed to be repeated
in either case by reference to the facts and circumstances
existing on such day and the circumstances giving use to such
misrepresentation, if in the reasonable opinion of the Majority
Banks are capable of remedy, shall not have been remedied within
10 Banking Days of the Agent or the Security Trustee as relevant
notifying the Parent of such misrepresentation and of such
required remedy; or
(e) Cross-default: (other than in the case of the Existing Group
Facilities as a result of the entry into of this Agreement and
the Security Documents by the Obligors) any Borrowed Money of
any member of the Group is not paid when due (or within any
applicable grace period expressly contained in the agreement
relating to such Borrowed Money in its original terms) or
becomes (whether by declaration or automatically in accordance
with the relevant agreement or instrument constituting the same)
due and payable prior to the date when it would otherwise have
become due or any creditor of any member of the Group becomes
entitled to declare any Borrowed Money of any member of the
Group so due and payable or to require cash collateralisation or
security for any such Borrowed Money (save pursuant to the terms
of this Agreement) or any facility or commitment available to
any member of the Group relating to Borrowed Money is withdrawn,
suspended or cancelled by reason of any default (however
described) of the company concerned unless the amount, or
aggregate amount at any one time, of all Borrowed Money in
relation to which any of the foregoing events shall have
occurred and be continuing is equal to or less
than L3,250,000 or its equivalent in the currencies in
which the sums are denominated and payable; or
(f) Derivatives Contract default: any member of the Group fails to
make payment in relation to a Derivatives Contract of any sum
equal to or greater than L3,250,000 in aggregate at any one
time (or its equivalent in the relevant currency of payment) on
its due date (taking into account any grace period permitted
under the documentation for that Derivatives Contract or, if
none stated, within 5 Banking Days of the due date) or the
counterparty to a Derivatives Contract becomes entitled to
terminate that Derivatives Contract early by reason of default
on the part of any member of the Group and the Net Derivatives
Liability in the aggregate payable under all affected
Derivatives Contracts at the relevant time is equal to or
greater than L3,250,000 (or its equivalent in the relevant
currency); or
(g) Legal process: any judgment or order made against any Obligor or
Material Subsidiary is not stayed or complied with within 14
days or a creditor attaches
81
or takes possession of, or a distress, execution, sequestration
or other process is levied or enforced upon or sued out against,
any material part of the undertakings, assets, rights or
revenues of any Obligor or Material Subsidiary and is not
discharged within 14 days; or
(h) Insolvency
(i) any Material Subsidiary or Obligor is deemed unable to
pay its debts within the meaning of section 123(1)(e) of
the Insolvency Xxx 0000 (but so that the words "it is
proved to the satisfaction of the court that" shall be
deemed to be deleted) or stops or suspends making
payments (whether of principal or interest) with respect
to all or any class of its debts or announces an
intention to do so; or
(ii) any Material Subsidiary or Obligor incorporated in the
United States commences a voluntary case or other
proceeding seeking liquidation, reorganisation or other
relief with respect to itself or its debts under any
bankruptcy, insolvency or other similar law now or
hereafter in effect or seeks the appointment of a
trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its
property, or consents to any such relief or to the
appointment of or taking possession by any such official
in an involuntary case or other proceeding commenced
against it, or makes a general assignment for the
benefit of creditors, or fails generally to pay its
debts as they become due, or takes any corporate action
to authorise any of the foregoing; or
(iii) an involuntary case or other proceeding is commenced
against any Material Subsidiary or Obligor incorporated
in the United States seeking liquidation, reorganisation
or other relief with respect to it or its debts under
any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its
property, and such involuntary case or other proceeding
remains undismissed and unstayed for a period of 60
days; or an order for relief is entered against any such
Material Subsidiary or Obligor under the US federal
bankruptcy laws as now or hereafter in effect; or
(iv) a petition for insolvency proceedings in respect of the
assets of any Material Subsidiary or Obligor
incorporated in Germany is filed or threatened to be
filed (such threat not to be frivolous) or any event
occurs which constitutes a cause for the initiation of
insolvency proceedings ("Eroffnungsgrund") as set forth
in Sec. 17 et seq. German Insolvency Code, in particular
any such Material Subsidiary or Obligor ceases to honour
its obligations, becomes insolvent or overindebted,
admits its inability to meet its obligations as they
fall due or anything occurs which is similar to the
above under the laws of any jurisdiction; or
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(i) Reduction or loss of capital: a meeting is convened by
any Material Subsidiary or Obligor for the purpose of
passing any resolution to purchase, reduce or redeem any
of its share capital or to comply with section 142 of
the Companies Xxx 0000 other than (i) in connection with
the redemption of preference shares at their scheduled
maturity or (ii) with the written consent of the Agent
(acting on the instructions of the Majority Banks); or
(j) Winding up: any petition is presented or other step is
taken for the purpose of winding up any Material
Subsidiary or Obligor (not being a petition which such
company can demonstrate to the satisfaction of the
Agent, by providing an opinion of leading counsel to
that effect, is frivolous, vexatious or an abuse of the
process of the court or relates to a claim to which such
company has a good defence and which is being vigorously
contested by such company) or an order is made or
resolution passed for the winding up of any Material
Subsidiary or Obligor or a notice is issued convening a
meeting for the purpose of passing any such resolution,
other than in relation to, or for the purpose of, a
solvent reorganisation on terms previously approved by
the Agent; or
(k) Administration: any petition is presented or other step
is taken for the purpose of the appointment of an
administrator of any Material Subsidiary or Obligor or
an administration order is made in relation to any
Material Subsidiary or Obligor; or
(l) Appointment of receivers and managers: any
administrative or other receiver is appointed of any
Material Subsidiary or Obligor or any material part of
its assets and/or undertakings or any other steps are
taken to enforce any Encumbrance over all or any part of
the assets of any Material Subsidiary or Obligor; or
(m) Compositions: any steps are taken, or negotiations
commenced, by any Material Subsidiary or Obligor or by
any of its creditors with a view to proposing any kind
of composition, compromise or arrangement involving such
company and its creditors generally, other than for the
purposes of a solvent reorganisation on terms previously
approved by the Agent; or
(n) Analogous proceedings: there occurs, in relation to any
Material Subsidiary or Obligor, in any country or
territory in which it carries on business or to the
jurisdiction of whose courts any part of its assets is
subject, any event which, in the reasonable opinion of
the Agent, appears in that country or territory to
correspond with, or have an effect equivalent or similar
to, any of those mentioned in clauses 14.1(g) to 14.1(m)
(inclusive) or any Material Subsidiary or Obligor
otherwise becomes subject (other than merely as a result
of its existence), in any such country or territory, to
the operation of any law relating to insolvency,
bankruptcy or liquidation; or
(o) Cessation of business: any Material Subsidiary or
Obligor suspends or ceases or threatens to suspend or
cease to carry on all or a material part of its business
83
other than as otherwise permitted by this Agreement or
on terms previously agreed by the Agent; or
(p) Seizure: all or a material part of the undertaking,
assets, rights or revenues of, or shares or other
ownership interests in, any Material Subsidiary or
Obligor are seized, nationalised, expropriated or
compulsorily acquired by or under the authority of any
government other than for full consideration; or
(q) Change of control: (i) any single person, or group of
persons acting in concert (as defined in the City Code
on Take-overs and Mergers dated 8th July 1993), acquires
any interest in the equity share capital of the Parent
and, following such acquisition, holds more than
one-half in nominal value of the equity share capital of
the Parent or (ii) without the consent of the Agent
(acting on the instructions of the Majority Banks), any
member of the Group disposes of any interests in the
equity share capital or voting share capital of an
Obligor (other than such a disposal to another member of
the Group); or
(r) Unlawfulness: it becomes unlawful at any time for any
Obligor to perform all or any of its obligations under
this Agreement or any of the Security Documents to which
it is a party; or
(s) Repudiation: any Obligor repudiates this Agreement or
any of the Security Documents to which it is a party or
does or causes or permits to be done any act or thing
evidencing an intention to repudiate this Agreement or
any of the Security Documents; or
(t) Material Adverse Effect: there occurs any material
adverse change in the financial condition of the Group
as a result of which any member of the Group will not be
able to comply with its payment obligations under the
Agreement or any of the Security Documents as and when
they fall to be satisfied; or
(u) Qualification of accounts: the auditors of the Parent
qualify their report on the audited consolidated
financial statements of the Group in any way except
where the qualification has been agreed with the Banks
or where the remedy for the matter giving rise to the
qualification would have no material adverse effect on
the results of the Group for the period to which such
accounts relate or on the financial position of the
Group as at the end of such period; or
(v) ERISA: with respect to any member of the Group
incorporated in the United States, a Plan shall be
terminated pursuant to Section 4041(c) of ERISA or PBGC
shall institute proceedings under Section 4042 of ERISA
for the termination of, or the appointment of a trustee
to administer, any Plan or a member of the Group
incorporated in the United States shall incur any
liability as a result of a prohibited transaction within
the meaning of Section 4975 of the Code or Section 406
of ERISA, or contributions required to be made to a Plan
pursuant to Section 412 of the Code shall not be made,
which, in the case of any of the events described in
this paragraph (v), shall result in liability of any
84
member of the Group incorporated in the United States or
any ERISA Affiliate which has or can reasonably be
expected to have a Material Adverse Effect; or
(w) Challenge to security: any Security Document is not at
the date of execution thereof or ceases to be effective
in any material respect or any Obligor shall in any way
challenge, or any proceedings shall in any way be
brought to challenge the validity or enforceability of
the Security Documents.
14.2 Acceleration
The Agent if so requested by the Majority Banks shall, without prejudice
to any other rights of the Banks, at any time after the happening of an
Event of Default (and for so long as the Event of Default is continuing
unremedied and unwaived) by notice to the Parent declare that:
(a) the obligation of each Funder to make its Commitment available
shall be terminated, whereupon the Total Commitments shall be
reduced to zero forthwith; and/or
(b) all outstanding Advances and Utilisations and all interest and
commitment commission accrued and all other sums payable under
this Agreement (including full cash cover in respect of all
outstanding Swingline Letters of Credit) have become immediately
due and payable or have become due and payable on demand,
whereupon the same shall, immediately or in accordance with the
terms of such notice, become so due and payable; and/or
(c) the Security Documents (or any of them) have become enforceable
whereupon the same shall be enforceable, provided that
immediately upon the occurrence of any of the events specified
in clauses 14.1(h)-(n) on or after the date of this Agreement in
relation to any member of the Group incorporated in the United
States and whether or not the Agent shall have previously made
any declaration pursuant to clauses 14.2(a) or 14.2(b) above,
the events specified in such paragraphs shall automatically
occur as if the Agent had made a declaration pursuant to such
paragraphs and all Commitments shall be cancelled and all
amounts due under this Agreement shall immediately become due
and payable (including full cash cover in respect of all
outstanding Swingline Letters of Credit) together with all
accrued interest.
On or at any time after the making of any such declaration, the Agent or
the Swingline Bank (as the case may be) shall be entitled, to the
exclusion of the Borrowers, to select the duration of each period for
the calculation of interest in relation to any outstanding Advances or
other sums payable under this Agreement.
14.3 Demand basis
If, pursuant to clause 14.2(b), the Agent declares all outstanding
Advances and Utilisations to be due and payable on demand then the Agent
may (and, if so instructed by the Majority Banks, shall) at any time by
written notice to the Borrowers (a) call for
85
repayment of the Advances and Utilisations on such date as may be
specified in such notice whereupon the Advances and Utilisations shall
become due and payable on the date so specified together with all
interest and commitment commission accrued and all other sums payable
under this Agreement (including full cash cover in respect of all
outstanding Swingline Letters of Credit) or (b) withdraw such
declaration with effect from the date specified in such notice.
15 Indemnities
15.1 Miscellaneous indemnities
Each Borrower shall on demand indemnify each Finance Party without
prejudice to any of their other rights under this Agreement and the
Security Documents, against any loss (including loss of Margin) or
expense which such Finance Party shall certify as sustained or incurred
by it as a consequence of:
(a) any default in payment by any member of the Group of any sum
under this Agreement or any of the Security Documents when due;
(b) the occurrence of any other Event of Default;
(c) any prepayment of all or part of any Advance being made
otherwise than on its Repayment Date; or
(d) any Advance not being made or Swingline Letter of Credit not
being issued for any reason (excluding any default by the Agent,
the Swingline Bank, any Arranger or any Bank) after a Drawdown
Notice or an L/C Application has been given;
including, in any such case, but not limited to, any loss or expense
sustained or incurred by such Bank in maintaining or funding all or any
part of its Contribution or in liquidating or re-employing deposits
from third parties acquired or contracted for to fund all or any part
of its Contribution or any other amount owing to such Bank.
15.2 Currency of account; currency indemnity
No payment by a Borrower under this Agreement which is made in a
currency other than the currency ("Contractual Currency") in which such
payment is required to be made pursuant to this Agreement shall
discharge the obligation in respect of which it is made except to the
extent of the net proceeds in the Contractual Currency received by the
Agent, the Swingline Bank or the Overdraft Bank, as appropriate upon the
sale of the currency so received, after taking into account any premium
and costs of exchange in connection with such sale. For the avoidance of
doubt no Finance Party shall be obliged to accept any such payment in a
currency other than the Contractual Currency nor shall any Finance Party
be liable to any Borrower for any loss or alleged loss arising from
fluctuations in exchange rates between the date on which such payment is
so received by the Agent, the Swingline Bank or the Overdraft Bank, as
appropriate and the date on which the Agent, the Swingline Bank or the
Overdraft Bank, as
86
appropriate effects such sale, as to which the Agent, the Swingline Bank
or the Overdraft Bank, as appropriate shall (as against such Borrower)
act in good faith. If any sum due from a Borrower under this Agreement
or any order or judgment given or made in relation hereto is required to
be converted from the Contractual Currency or the currency in which the
same is payable under such order or judgment (the "first currency") into
another currency (the "second currency") for the purpose of (a) making
or filing a claim or proof against a Borrower, (b) obtaining an order or
judgment in any court or other tribunal or (c) enforcing any order or
judgment given or made in relation to this Agreement, such Borrower
shall indemnify and hold harmless the Finance Parties from and against
any loss suffered as a result of any difference between (i) the rate of
exchange used for such purpose to convert the sum in question from the
first currency into the second currency and (ii) the rate or rates of
exchange at which such Finance Party 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. Any amount due from a Borrower
under the indemnity contained in this clause 15.2 shall be due as a
separate debt and shall not be affected by judgment being obtained for
any other sums due under or in respect of this Agreement and the term
"rate of exchange" includes any premium and costs of exchange payable in
connection with the purchase of the first currency with the second
currency.
15.3 ECB reserve requirements
The Parent shall on demand indemnify each Funder against any cost or
loss suffered by it as a result of complying with European System of
Central Banks reserve requirements to the extent such requirements
relate to its participation in the Facilities and are not recoverable by
such Funder under clause 16.2.
16 Unlawfulness and increased costs; mitigation
16.1 Unlawfulness
If, after the date of this Agreement it is or becomes contrary to any
applicable law or regulation for any Funder to contribute to Advances or
to maintain its Commitment or fund its Contribution or to fulfil its
obligations under clause 6 or clause 7 or for the Swingline Bank to
issue or perform its obligations under Swingline Letters of Credit such
Funder shall promptly, through the Agent, notify the Parent of (i) the
obligations which have been rendered illegal, (ii) the date on which the
illegality has or will take effect and (iii) details of the relevant law
or regulation whereupon:
(a) such Funder's Commitment under the Revolving Credit Facilities,
the Swingline Facility or the Overdraft Facility, as relevant
shall be reduced to zero but without prejudice to the
obligations to indemnify the Swingline Bank in relation to
Swingline Letters of Credit and the Overdraft Bank in relation
to the Overdraft Facility pursuant to clauses 6.12 and 7.2 which
will remain in full force and effect until the Swingline Bank or
the Overdraft Bank, as relevant notifies such Bank that it is
satisfied that the Swingline Borrower or the Overdraft Borrower,
as relevant, has cash collateralised the amount of that
87
Funder's indemnification exposure in respect of outstanding
Swingline Letters of Credit or the Overdraft Facility; and
(b) the Borrowers shall be obliged to
(i) prepay the Contribution of such Funder on a future
specified date not being earlier than the latest date,
if such illegality has taken effect, permitted by the
relevant law or regulation; and
(ii) pay an amount equivalent to, and in the currency of,
such indemnification exposure in respect of each
outstanding Swingline Letter of Credit and the Overdraft
Facility, to the Agent as cash collateral for such
exposure; and
if it becomes so contrary to any law or regulation prior
to the proposed date of opening the Swingline Letter of
Credit for the Swingline Bank to open such Swingline
Letter of Credit, the obligations of the Swingline Bank
to issue Swingline Letters of Credit shall forthwith
terminate; and
(ii) if it becomes so contrary to any law or regulation after
the L/C Issue Date for the Swingline Bank to perform its
obligations under a Swingline Letter of Credit then the
Agent shall, at the request and on behalf of the
Swingline Bank, give notice to the relevant Borrower
requiring the relevant Borrower to cause the liability
of the Swingline Bank under that Swingline Letter of
Credit to be discharged in full to the satisfaction of
the Swingline Bank.
Any prepayment pursuant to this clause 16.1 shall be made together with
all amounts referred to in clause 8.7.
16.2 Increased costs
If the result of any change in, or in the official interpretation or
application of, or the introduction of, any law or any regulation,
request or requirement (whether or not having the force of law, but, if
not having the force of law, with which the relevant Funder or, as the
case may be, its holding company habitually complies), including
(without limitation) those relating to Taxation, capital adequacy,
liquidity, reserve assets, cash ratio deposits and special deposits,
(including European System of Central Banks reserve requirements) is to:
(a) subject any Funder to Taxes or change the basis of Taxation of
any Funder with respect to any payment under this Agreement
(other than Taxes or Taxation on the overall net income, profits
or gains of such Funder imposed in the jurisdiction in which its
principal or lending office under this Agreement is located);
and/or
(b) increase the cost to, or impose an additional cost on, any
Funder or its holding company in making or keeping available all
or part of such Funder's
88
Commitment or maintaining or funding all or part of such
Funder's Contribution; and/or
(c) reduce the amount payable or the effective return to any Funder
under this Agreement; and/or
(d) reduce any Funder's or its holding company's rate of return on
its overall capital by reason of a change in the manner in which
it is required to allocate capital resources to such Funder's
obligations under this Agreement; and/or
(e) require any Funder or its holding company to make a payment or
forgo a return calculated by reference to or on any amount
received or receivable by such Funder under this Agreement;
and/or
(f) require any Funder or its holding company to incur or sustain a
loss (including a loss of future potential profits) by reason of
being obliged to deduct all or part of such Funder's Commitment,
exposure under Swingline Letters of Credit or Contribution from
its capital for regulatory purposes,
then and in each such case (but subject to clause 16.3):
(i) such Funder shall notify the Parent through the Agent in
writing of such event promptly upon its becoming aware
of the same; and
(ii) the Borrowers shall on demand, made at any time whether
or not such Funder's Contribution or exposure under
Swingline Letters of Credit has been repaid, pay to the
Agent for the account of such Funder the amount which
such Funder specifies (in a certificate setting forth
the basis of the computation of such amount but not
including any matters which such Funder or its holding
company regards as confidential) is required to
compensate such Funder and/or its holding company for
such liability to Taxes, increased or additional cost,
reduction, payment, forgone return or loss.
For the purposes of this clause 16.2 and clause 16.4 "holding company"
means, in relation to a Funder, the company or entity (if any) within
the consolidated supervision of which such Funder is included.
16.3 Exceptions
Nothing in clause 16.2 shall entitle any Funder to receive any amount in
respect of compensation for any such liability to Taxes, increased or
additional cost, reduction, payment, forgone return or loss to the
extent that the same:
(a) is taken into account in calculating the Additional Cost; or
(b) is the subject of an additional payment under clause 10.5; or
89
(c) arises as a consequence of (or of any law or regulation
implementing) (i) the proposals for international convergence of
capital measurement and capital standards published by the Basle
Committee on Banking Regulations and Supervisory Practices in
July 1988 and/or (ii) any applicable directive of the European
Union (in each case) unless it results from any change in, or in
the interpretation or application of, such proposals or any such
applicable directive (or any law or regulation implementing the
same) occurring after the date hereof.
For the purposes of clause 16.3(c) the term "applicable directive" means
(exclusively) each of the Own Funds Directive (89/299/EEC of 17th April
1989) and the Solvency Ratio Directive (89/647/EEC of 18th December
1989).
16.4 Mitigation
If circumstances arise which would, or would upon the giving of notice,
result in:
(a) the Borrowers being required to make an increased payment to any
Funder pursuant to clause 10.5;
(b) the reduction of any Funder's Commitment to zero or the
Borrowers being required to prepay any Funder's Contribution
pursuant to clause 16.1; or
(c) the Borrowers being required to make a payment to any Funder to
compensate such Funder or its holding company for a liability to
Taxes, increased or additional cost, reduction, payment, forgone
return or loss pursuant to clause 16.2(ii),
then, without in any way limiting, reducing or otherwise qualifying the
obligations of the Borrowers under clause 10 and this clause 16, such
Funder shall, in consultation with the Agent, endeavour to take such
reasonable steps (and/or, in the case of clause 16.2(ii) and where the
increased or additional cost, reduction, payment, forgone return or loss
is that of its holding company, endeavour to procure that its holding
company takes such reasonable steps) as are open to it (or, as the case
may be, its holding company) to mitigate or remove such circumstances
(including (in the case of such Funder) the transfer of its rights and
obligations under this Agreement to another bank or financial
institution) unless the taking of such steps might (in the opinion of
such Funder) be prejudicial to such Funder (or, as the case may be, its
holding company) or be in conflict with such Funder's (or, as the case
may be, its holding company's) general banking policies or involve such
Funder (or, as the case may be, its holding company) in expense or an
increased administrative burden.
16.5 Regulation D Costs
Each US Borrower shall, within 10 Banking Days (if it is the first
occasion on which the relevant Bank makes the demand) or 5 Banking Days
(in all other cases) of demand by any Bank (through the Agent), pay to
that Bank the amount of any Regulation D
90
Costs actually incurred by that Bank in respect of its participation in
any loan made by it to that US Borrower.
17 Set-off and pro rata payments
17.1 Set-off
Following an Event of Default which is continuing unremedied and
unwaived each Borrower authorises each Funder to apply any credit
balance to which such Borrower is then entitled on any account of such
Borrower with such Funder at any of its branches in or towards
satisfaction of any sum then due and payable from such Borrower to such
Funder under this Agreement. For this purpose each Funder is authorised
to purchase with the moneys standing to the credit of such account such
other currencies as may be necessary to effect such application. None of
the Funders shall be obliged to exercise any right given to it by this
clause 17.1. Each Funder shall notify the Agent and the Parent (giving
full details) forthwith upon the exercise or purported exercise of any
right of set-off and the Agent shall inform the other Funders. Failure
by any Funder to notify the Agent and the Parent shall not affect the
validity of the set-off.
17.2 Pro rata payments
(a) If at any time any Bank (the "Recovering Bank") receives or
recovers any amount owing to it by any Borrower under this
Agreement by direct payment, set-off or in any manner other than
by payment through the Agent pursuant to clause 10.1 or
10.11(not being a payment received from a Substitute in such
Bank's Contribution or any other payment of an amount due to the
Recovering Bank for its sole account pursuant to clauses 8.5, 9,
10.5, 15.1, 15.2, 16.1 or 16.2), the Recovering Bank shall,
within two Banking Days of such receipt or recovery (a "Relevant
Receipt") notify the Agent of the amount of the Relevant
Receipt. If the Relevant Receipt exceeds the amount which the
Recovering Bank would have received if the Relevant Receipt had
been received by the Agent and distributed pursuant to clause
10.1 or 10.11 (as the case may be) then:
(i) within two Banking Days of demand by the Agent, the
Recovering Bank shall pay to the Agent an amount equal
(or equivalent) to the excess;
(ii) the Agent shall treat the excess amount so paid by the
Recovering Bank as if it were a payment made by the
Borrowers and shall distribute the same to the Banks
(other than the Recovering Bank) in accordance with
clause 10.1 or clause 10.11, as the case may be; and
(iii) as between the Borrowers and the Recovering Bank the
excess amount so re-distributed shall be treated as not
having been paid but the obligations of the Borrowers to
the other Banks shall, to the extent of the amount so
re-distributed to them, be treated as discharged.
91
(b) If any part of the Relevant Receipt subsequently has to be
wholly or partly refunded by the Recovering Bank (whether to a
liquidator or otherwise) each Bank to which any part of such
Relevant Receipt was so re-distributed shall on request from the
Recovering Bank repay to the Recovering Bank such Bank's pro
rata share of the amount which has to be refunded by the
Recovering Bank.
(c) Each Bank shall on request supply to the Agent such information
as the Agent may from time to time request for the purpose of
this clause 17.2.
(d) Notwithstanding the foregoing provisions of this clause 17.2 no
Recovering Bank shall be obliged to share any Relevant Receipt
which it receives or recovers pursuant to legal proceedings
taken by it to recover any sums owing to it under this Agreement
with any other party which has a legal right to, but does not,
either join in such proceedings or commence and diligently
pursue separate proceedings to enforce its rights in the same or
another court (unless the proceedings instituted by the
Recovering Bank are instituted by it without prior notice having
been given to such party through the Agent).
17.3 No release
For the avoidance of doubt it is hereby declared that failure by any
Recovering Bank to comply with the provisions of clause 17.2 shall not
release any other Recovering Bank from any of its obligations or
liabilities under clause 17.2.
17.4 No charge
The provisions of this clause 17 shall not, and shall not be construed
so as to, constitute a charge by a Bank over all or any part of a sum
received or recovered by it in the circumstances mentioned in clause
17.2.
18 Assignment, substitution, lending offices, Additional Borrowers,
Additional Guarantors and Affiliates of Banks
18.1 Benefit and burden
This Agreement shall be binding upon, and enure for the benefit of, the
Finance Parties and their respective successors and permitted assigns.
18.2 No assignment by Borrower
None of the Borrowers may assign or otherwise transfer any of their
rights or obligations under this Agreement.
18.3 Substitution
Each Bank (an "Existing Bank") may transfer, by way of novation (but not
by way of assignment or otherwise), all or any part of its rights,
benefits and/or obligations under this Agreement to another Qualifying
Bank (a "Substitute") in minimum amounts of $7,500,000, with the consent
in writing (a) of the Parent, such consent not to be
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unreasonably withheld or delayed and (b) of the Swingline Bank and the
Overdraft Bank, such consent not to be unreasonably withheld or delayed.
Any such novation shall be effected upon not less than 5 Banking Days'
prior notice by delivery to the Agent of a duly completed Substitution
Certificate duly executed by the Existing Bank and the Substitute. On
the Transfer Date (as specified and defined in a Substitution
Certificate so executed and delivered), to the extent that the
Commitment and Contribution of the Existing Bank are expressed in a
Substitution Certificate to be the subject of the novation in favour of
the Substitute effected pursuant to this clause 18.3, by virtue of the
counter-signature of the Substitution Certificate by the Agent (for
itself, the Borrowers, the Guarantors, the Arrangers, the Banks, the
Swingline Bank, the Agent and the Security Trustee and the other parties
to this Agreement):
(a) the existing parties to this Agreement and the Existing Bank
shall be released from their respective obligations towards one
another under this Agreement ("discharged obligations") and
their respective rights against one another under this Agreement
("discharged rights") shall be cancelled;
(b) the Substitute party to the relevant Substitution Certificate
and the existing parties to this Agreement and the Security
Trust Deed (other than such Existing Bank) shall assume
obligations towards each other which differ from the discharged
obligations only insofar as they are owed to or assumed by such
Substitute instead of to or by such Existing Bank; and
(c) the Substitute party to the relevant Substitution Certificate
and the existing parties to this Agreement and the Security
Trust Deed (other than such Existing Bank) shall acquire rights
against each other which differ from the discharged rights only
insofar as they are exercisable by or against such Substitute
instead of by or against such Existing Bank,
and, on such Transfer Date, the Substitute shall pay to the Agent a
fee of L1,500, as to L1,000 for the account of the Agent and as to
L500 for the account of the Parent. The Agent shall promptly notify
the other Banks and the Parent of the receipt by it of any
Substitution Certificate and shall promptly deliver a copy of such
Substitution Certificate to the Parent. The portions of any such
transfer fees which are for the account of the Parent shall be paid by
the Agent to the Parent in arrears at three monthly intervals
commencing three months after the date of this Agreement.
18.4 Limitation on certain obligations
(a) If, at the time of any novation or change in lending office by
any Funder circumstances exist which would oblige the Borrowers
to pay to the Substitute (or, in the case of change in lending
office, the relevant Funder) under clauses 10.1, 10.5 or 16 any
sum in excess of the sum (if any) which they could have been
obliged to pay to that Funder under the relevant clause in the
absence of that novation or change of lending office, the
Borrowers shall not be obliged to pay that excess;
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(b) a Bank may not novate any of its rights to payment of interest
in respect of an Advance to a UK Borrower, other than to a Bank
which is a Qualifying Bank by virtue of paragraph (a) or (c) of
the definition of Qualifying Bank, as long as that Borrower
remains a UK Borrower.
18.5 Reliance on Substitution Certificate
The Finance Parties, the Borrowers and the Guarantors shall be fully
entitled to rely on any Substitution Certificate delivered to the Agent
in accordance with the foregoing provisions of this clause 18 which is
complete and regular on its face as regards its contents and purportedly
signed on behalf of the relevant Existing Bank and the Substitute and
none of the Finance Parties, the Borrowers and the Guarantors shall have
any liability or responsibility to any party as a consequence of placing
reliance on and acting in accordance with any such Substitution
Certificate if it proves to be the case that the same was not authentic
or duly authorised.
18.6 Authorisation of Agent
Each party to this Agreement irrevocably authorises the Agent to
counter-sign each Substitution Certificate on its behalf for the
purposes of clause 18.3 without any further consent of, or consultation
with, such party except, in the case of the Parent, the consent required
pursuant to clause 18.3.
18.7 Construction of certain references
If any Funder novates all or any part of its rights, benefits and
obligations as provided in clause 18.3 all relevant references in this
Agreement to such Funder shall thereafter be construed as a reference to
such Funder and/or its Substitute to the extent of their respective
interests.
18.8 Lending offices
Each Funder shall lend through its office at the address specified in
schedule 2 or, as the case may be, in any relevant Substitution
Certificate or through any other office of such Funder selected from
time to time by such Funder through which such Funder wishes to lend for
the purposes of this Agreement. If the office through which a Funder is
lending is changed pursuant to this clause 18.8, such Funder shall
notify the Agent and the Borrowers promptly of such change.
18.9 Disclosure of information
(a) Subject to clause 18.9(b), a Funder may disclose to a
prospective transferee or to any other person who may propose
entering into contractual relations with such Funder in relation
to this Agreement such information about the Borrowers as such
Funder shall consider appropriate;
(b) no Funder may disclose any information about any Borrower to an
actual or potential transferee or other person without the prior
consent of such Borrower (such consent not to be unreasonably
withheld or delayed) until such Funder
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has obtained from the actual or potential transferee or other
person an undertaking to the Funders and to the Parent to keep
such information confidential save as required by statute or by
a court of law or as may be required to be disclosed to the Bank
of England or similar monetary or regulatory authority in
accordance with whose instructions such bank, transferee or
other person is accustomed to acting or to its professional
advisers on a confidential basis or where such information is in
the public domain;
(c) any information furnished pursuant to this Agreement to any
Finance Party shall be kept confidential by the recipient and
the Finance Parties hereby agree to keep the information
confidential, save that the provisions of this clause 18.9(c)
shall not apply:
(i) to any information already known to the recipient;
(ii) to any information subsequently received by the
recipient which it would otherwise be free to disclose;
(iii) to any information which is or becomes public knowledge
otherwise than by reason of a breach of confidentiality
by the Finance Party concerned;
(iv) to any extent that the recipient is required to disclose
the same pursuant to any law or order of any court or
order of any governmental agency with whose instructions
the recipient habitually complies; and
(v) to any information disclosed to auditors or other
professional advisers who are subject to a duty of
confidentiality or any other person who undertakes with
the Parent to keep the information confidential.
18.10 Restrictions on novations
Where a Funder novates part of its rights, benefits and obligations
pursuant to clause 18.3, that Funder must novate equal fractions of its
Commitment and Contribution (if any) in respect of the Facilities and,
if at the time when such novation takes effect more than one Revolving
Credit Advance is outstanding, the novation of its Contribution shall
take effect in respect of the same fraction of each Revolving Credit
Advance. The Substitution Certificate relating to any such novation
shall be completed accordingly.
18.11 Additional Borrowers and Additional Overdraft Borrowers
(a) If the Parent wishes one of its wholly-owned Subsidiaries to
become an Additional Borrower or an Additional Overdraft
Borrower, then, with the prior written approval of the Banks, it
may deliver to the Agent the documents listed in part D of
schedule 4.
(b) On delivery of a Borrower Accession Agreement or an Overdraft
Borrower Accession Agreement duly executed by the relevant
Subsidiary and the Parent,
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the Subsidiary concerned will become an Additional Borrower or
an Additional Overdraft Borrower, as the case may be. However,
it may not utilise the Facilities (or, in the case of an
Additional Overdraft Borrower, the Overdraft Facility) until the
Agent confirms to the Banks and the Parent that it has received
all the documents referred to in paragraph (a) above in form and
substance satisfactory to it, which it shall do promptly.
(c) Delivery of a Borrower Accession Agreement, or an Overdraft
Borrower Accession Agreement, executed by the Subsidiary and the
Parent, constitutes confirmation by that Subsidiary and the
Parent that the representations and warranties set out in clause
11 (other than the excluded representations and warranties) to
be made by them on the date of the Borrower Accession Agreement
or the Overdraft Borrower Accession Agreement are correct, as if
made with reference to the facts and circumstances then
existing.
(d) The Finance Parties irrevocably authorise the Agent to execute
any duly executed Borrower Accession Agreement or Overdraft
Accession Agreement on their behalf, upon receipt of the prior
written approval of the Banks under paragraph (a) above.
18.12 Additional Guarantors
(a) The Parent shall procure that, as soon as reasonably practicable
after, but in any event within 60 days of completion of the
Lighthouse Acquisition, each of the companies listed in part D
of schedule 1 will approve, implement, execute and deliver to
the Agent the items referred to in part C of schedule 4 to the
satisfaction of the Agent (unless and to the extent that such
execution and delivery would be unavoidably unlawful).
(b) The Parent shall procure that, as soon as reasonably practicable
after, but in any event within 30 days of, the date of this
Agreement Headcount Field Marketing Limited (Number 01425412)
will approve, implement, execute and deliver to the Agent the
items referred to in part C of schedule 4 to the satisfaction of
the Agent (unless and to the extent that such execution and
delivery would be unavoidably unlawful).
18.13 The Parent as Borrowers' agent
Each Borrower by its execution of this Agreement or an Accession
Certificate, as the case may be, irrevocably appoints and authorises the
Parent:
(a) as agent for such Borrower to receive all notices, requests,
demands or other communications under this Agreement which
shall, without prejudice to any other effective mode of serving
the same, be properly served on the Borrower concerned if served
on the Parent in accordance with clause 20.1; and
(b) to give all notices (including Drawdown Notices) and
instructions and make such agreements (including, without
limitation, any Borrower Accession
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Certificate) expressed to be capable of being given or made by
such Borrower or the Borrowers in this Agreement notwithstanding
that they may affect such Borrower without further reference to,
or the consent of, such Borrower and such Borrower shall, as
regards the Finance Parties, be bound thereby as though such
Borrower itself had given such notice or instructions or made
such agreement.
18.14 Amendments binding
Without prejudice to the other provisions of this Agreement each
Borrower hereby confirms that if the Parent and the Finance Parties or
any of them enter into any amendment or supplement to or restatement of
this Agreement, the Parent's execution of any such amendment or
supplement or restatement, whether or not expressly made or purportedly
made on behalf of such Borrower, shall (to the extent legally possible)
bind such Borrower without the need to obtain any confirmation or
acknowledgement from such Borrower. For this purpose, each Borrower, for
the benefit of the Finance Parties, irrevocably designates, appoints and
empowers the Parent as its agent and attorney.
18.15 Affiliates of Banks
(a) A Bank may provide for an Affiliate (or branch) to participate
either (i) in all Revolving Credit Advances to any US Borrower
or (ii) in all Advances and Utilisations other than Revolving
Credit Advances to any US Borrower by:
(A) joining the relevant Affiliate (or branch) in as a Bank
by means of a Substitution Certificate in accordance
with clause 18.3; and
(B) giving notice to the Agent and the Parent, detailing the
Revolving Credit Advances in which that Affiliate (or
branch) will participate.
In this event such Bank and its Affiliate (or branch):
(1) will be treated as having a single Commitment,
but, for all other purposes other than that
mentioned in paragraph (b) below, will be
treated as separate Banks; and
(2) participate in Revolving Credit Advances in the
manner notified to the Agent and the Parent in
accordance with sub-paragraph (B) above.
(b) For the purposes of:
(i) compliance with clause 18.3; and
(ii) voting in connection with this Agreement or any Security
Document,
each Bank and its Affiliate (or branch) will be regarded as a
single Bank.
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19 Arranger, Agent, Security Trustee and Reference Banks
19.1 Appointment of Agent
Each Bank irrevocably appoints the Agent as its agent for the purposes
of this Agreement and any relevant Security Document and irrevocably
authorises the Agent (whether or not by or through employees or agents)
to take such action on such Bank's behalf and to exercise such rights,
remedies, powers and discretions as are specifically delegated to the
Agent by this Agreement and/or the relevant Security Document together
with such powers and discretions as are reasonably incidental thereto
(but subject to any restrictions or limitations specified in this
Agreement). None of the Agent, the Swingline Bank, the Overdraft Bank,
the Arrangers or the Security Trustee shall, however, have any duties,
obligations or liabilities (whether fiduciary or otherwise) to the Banks
beyond those expressly stated in this Agreement or the Security Trust
Deed.
19.2 Agent's actions
Any action taken by the Agent under or in relation to this Agreement and
any relevant Security Document with requisite authority, or on the basis
of appropriate instructions, received from the Majority Banks or all the
Banks, as the case may be (or as otherwise duly authorised), shall be
binding on all the Banks.
19.3 Agent's duties
The Agent shall:
(a) promptly notify each Bank of the contents of each notice,
certificate or other document received by the Agent from the
Borrower under or pursuant to clauses 12.1(a) and 12.1(h);
(b) (subject to the other provisions of this clause 19) take such
action or, as the case may be, refrain from taking such action
with respect to the exercise of any of its rights, remedies,
powers and discretions as agent, as the Majority Banks may
reasonably direct; and
(c) serve as the Borrowers' agent solely for the purpose of this
clause to maintain a register (the "Register of Commitments") on
which the Agent will record the Commitments from time to time of
each of the Banks, the Advances made from time to time by each
of the Banks and each repayment in respect of the principal
amount of such Advance of each such Bank. The Agent will open
the Register of Commitments on the date of this Agreement and
will enter into and record on the Register of Commitments on
such date the Commitments of all of the Banks as set forth in
schedule 2. Thereafter the Agent will enter into and record on
the Register of Commitments any and all changes to the
Commitments of any one or more Banks made pursuant to the
provisions of this Agreement, the addition of new Banks and the
removal of Banks as a result of substitutions pursuant to clause
18.3. With respect to any Bank, the
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transfer of the Commitments of such Bank and the rights to the
principal of, interest on and fees with respect to any Advance
made pursuant to such Commitment shall not be effective until
such transfer is recorded on the Register of Commitments
maintained by the Agent with respect to ownership of such
Commitments and Advances and prior to such recordation all
amounts owing to the transferor with respect to such Commitments
and Advances shall remain owing to the transferor. The
registration of substitution or transfer of all or part of any
Commitments and Advances shall be recorded by the Agent on the
Register of Commitments only upon the acceptance by the Agent of
a properly executed and delivered Substitution Certificate.
19.4 Agent's rights
The Agent may:
(a) in the exercise of any right, remedy, power or discretion in
relation to any matter, or in any context, not expressly
provided for by this Agreement or any relevant Security
Document, act or, as the case may be, refrain from acting in
accordance with the instructions of the Majority Banks, and
shall be fully protected in so doing;
(b) unless and until it shall have received directions from the
Majority Banks or all the Banks as applicable under this
Agreement, take such action, or refrain from taking such action
in respect of a Default of which the Agent has actual knowledge
as it shall deem advisable in the best interests of the Banks
(but shall not be obliged to do so);
(c) refrain from acting in accordance with any instructions of the
Majority Banks to institute any legal proceedings arising out of
or in connection with this Agreement or any relevant Security
Document until it has been indemnified and/or secured to its
satisfaction against any and all costs, expenses or liabilities
(including legal fees) which it would or might incur as a result
unless such costs, expenses or liabilities result from the
Agent's gross negligence or wilful misconduct;
(d) deem and treat (i) each Bank as the person entitled to the
benefit of the Contribution of such Bank for all purposes of
this Agreement unless and until a Substitution Certificate shall
have been filed with the Agent, and (ii) the office set opposite
the name of each Bank in schedule 2 or, as the case may be, in
any relevant Substitution Certificate as such Bank's lending
office unless and until a written notice of change of lending
office shall have been received by the Agent; and the Agent may
act upon any such notice unless and until the same is superseded
by a further such notice;
(e) rely as to matters of fact which might reasonably be expected to
be within the knowledge of a Borrower upon a certificate signed
by any director of that Borrower on behalf of that Borrower; and
99
(f) do anything which is in its opinion necessary or desirable to
comply with any law or regulation in any jurisdiction.
19.5 No liability of Arrangers, Security Trustee, Agent, Swingline Bank and
Overdraft Bank
None of the Arrangers, the Security Trustee, the Agent, the Swingline
Bank, Overdraft Bank or any of their respective employees and agents
shall:
(a) be obliged to request any certificate or opinion under clause 12
or to make any enquiry as to the use of the proceeds of the
Facilities unless (in the case of the Agent) so required in
writing by any Bank, in which case the Agent shall promptly make
the appropriate request of the Borrowers; or
(b) be obliged to make any enquiry as to any breach or default by
any Borrower in the performance or observance of any of the
provisions of this Agreement or any Security Document or as to
the existence of a Default unless (in the case of the Agent) the
Agent has actual knowledge thereof or has been notified in
writing thereof by a Bank, in which case the Agent shall
promptly notify the Banks of the relevant event or circumstance;
or
(c) be obliged to enquire whether or not any representation or
warranty made by any member of the Group pursuant to this
Agreement or any Security Document is true; or
(d) be obliged to do anything (including, without limitation,
disclosing any document or information) which would, or might in
its opinion, be contrary to any law or regulation or be a breach
of any duty of confidentiality or otherwise be actionable or
render it liable to any person. For the purposes of this clause
19.5(d) the parties to this Agreement acknowledge that no
document delivered to the Agent pursuant to the terms of this
Agreement by any Borrower or any Guarantor is subject to any
duty of confidentiality which would restrict the Agent's ability
to deliver copies of the same to the Banks provided that this
clause 19.5(d) shall not otherwise affect the duty of the Agent
or the Banks to keep any confidential information supplied to it
or them by any member of the Group confidential; or
(e) be obliged to account to any Bank for any sum or the profit
element of any sum received by it for its own account; or
(f) be obliged to institute any legal proceedings arising out of or
in connection with this Agreement or any Security Document other
than on the instructions of the Majority Banks; or
(g) be liable to any Bank for any action taken or omitted under or
in connection with this Agreement, the Facilities or any
Security Document unless caused by its gross negligence or
wilful misconduct.
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For the purposes of this clause 19.5 none of the Agent, the Swingline
Bank, the Overdraft Bank, the Arrangers or the Security Trustee shall be
treated as having actual knowledge of any matter of which the corporate
finance or any other division outside the agency or loan administration
department of the person for the time being acting as the Agent, the
Arrangers or the Security Trustee may become aware in the context of
corporate finance, advisory or lending activities from time to time
undertaken by the Agent, the Swingline Bank, the Overdraft Bank, the
Arrangers or the Security Trustee for any member of the Group or any
other person which may be a trade competitor of any member of the Group
or may otherwise have commercial interests similar to those of any
member of the Group.
19.6 Non-reliance on Arrangers, Security Trustee, Agent, Swingline Bank or
Overdraft Bank
Each Bank acknowledges that it has not relied on any statement, opinion,
forecast or other representation made by the Arrangers, the Security
Trustee, the Agent or the Swingline Bank or Overdraft Bank to induce it
to enter into this Agreement and that it has made and will continue to
make, without reliance on the Agent, the Swingline Bank, Overdraft Bank,
the Security Trustee or any Arranger and based on such documents as it
considers appropriate, its own appraisal of the creditworthiness of the
members of the Group and its own independent investigation of the
financial condition, prospects and affairs of the members of the Group
in connection with the making and continuation of the Facilities. None
of the Security Trustee, the Arrangers, the Agent, the Swingline Bank,
the Overdraft Bank shall (except for documents and/or notices which the
Security Trustee, the Arrangers and/or the Agent (i) have agreed to
provide to the Banks or (ii) have received with sufficient copies for
distribution to the Banks) have any duty or responsibility, either
initially or on a continuing basis, to provide any Bank with any credit
or other information with respect to any Borrower whether coming into
its possession before the making of any Advance or at any time or times
thereafter, other than (in the case of the Agent) as provided in clause
19.3(a).
19.7 No Responsibility on Arrangers, the Security Trustee, the Agent, the
Swingline Bank or the Overdraft Bank for any Borrower's performance
None of the Arrangers, the Security Trustee, the Agent, the Swingline
Bank or the Overdraft Bank shall have any responsibility or liability to
any Bank:
(a) on account of the failure of any member of the Group to perform
its obligations under this Agreement or any Security Document;
or
(b) for the financial condition of any member of the Group; or
(c) for the completeness or accuracy of any statements,
representations or warranties in this Agreement, any Security
Document or the Information Memorandum or any document delivered
under this Agreement or any Security Document; or
101
(d) for the execution, effectiveness, adequacy, genuineness,
validity, enforceability or admissibility in evidence of this
Agreement, any Security Document or any certificate, report or
other document executed or delivered under this Agreement or any
Security Document; or
(e) otherwise in connection with the Facilities or its negotiation
or for acting (or, as the case may be, refraining from acting)
in accordance with the instructions of the Majority Banks or all
the Banks as applicable under this Agreement.
19.8 Reliance on documents and professional advice
The Arrangers, the Security Trustee, the Agent, the Swingline Bank and
the Overdraft Bank shall be entitled to rely on any communication,
instrument or document believed by it to be genuine and correct and to
have been signed or sent by the proper person and shall be entitled to
rely as to legal or other professional matters on opinions and
statements of any legal or other professional advisers selected or
approved by it (including those in the Agent's, the Swingline Bank's,
Overdraft Banks, the Security Trustee's or either Arranger's
employment).
19.9 Other dealings
Each of the Arrangers, the Security Trustee, the Agent, the Swingline
Bank and the Overdraft Bank may, without any liability to account to the
Banks, accept deposits from, lend money to, and generally engage in any
kind of banking or other business with, and provide advisory or other
services to, any member of the Group or any of their respective
Subsidiaries or any of the Banks as if it were not an Arranger, the
Security Trustee, the Agent, the Swingline Bank or the Overdraft Bank as
the case may be.
19.10 Rights of Agent, Swingline Bank, Overdraft Bank, Security Trustee and
Arrangers as Bank; no partnership
With respect to its own Commitment and Contribution (if any) the Agent,
the Swingline Bank, Overdraft Bank, the Security Trustee and each
Arranger shall have the same rights and powers under this Agreement as
any other Bank and may exercise the same as though it were not
performing the duties and functions delegated to it under this Agreement
and the Security Documents and the term "Banks" shall, unless the
context clearly otherwise indicates, include the Agent in its individual
capacity as a Bank. This Agreement shall not and shall not be construed
so as to constitute a partnership between the parties or any of them.
19.11 Amendments; waivers
(a) Subject to clause 19.11(b), the Agent may, with the consent of
the Majority Banks (or if and to the extent expressly authorised
by the other provisions of this Agreement) and, if so instructed
by the Majority Banks, shall (i) agree amendments or
modifications to this Agreement with the Borrowers and/or vary
or waive breaches of, or defaults under, or otherwise excuse
performance
102
of, any provision of this Agreement by any Borrower and/or (ii)
authorise the Security Agent (on behalf of the Finance Parties)
to agree amendments or modifications to the Security Documents
with the Borrowers and/or the Guarantors and/or vary or waive
breaches of, or defaults under, or otherwise excuse performance
of, any provision of any of the Security Documents by any
Borrower or Guarantor. Any such action so authorised and
effected by the Agent shall be documented in such manner as the
Agent shall (with the approval of the Majority Banks) determine,
shall be promptly notified to the Banks by the Agent and
(without prejudice to the generality of clause 19.2) shall be
binding on all the Banks.
(b) Except with the prior written consent of all the Banks, the
Agent shall not have authority on behalf of the Banks to agree
with the Borrowers and the Guarantors (or authorise the Security
Trustee to so agree) any amendment or modification to this
Agreement or any Security Document or to grant waivers in
respect of breaches or defaults or to vary or excuse performance
of or under this Agreement or any Security Document by any
Borrower or any Guarantor, if the effect of such amendment,
modification, waiver, variation or excuse would be to (i) reduce
the Margin, (ii) postpone the due date or, save as expressly
provided for in this Agreement, reduce the amount of any payment
of principal, interest, commitment commission or other amount
payable by any Borrower or Guarantor under this Agreement or any
Security Document or reduction of the Total Commitments, (iii)
change the currency in which any amount is payable by any
Borrower or Guarantor under this Agreement or any Security
Document, (iv) increase any Bank's Commitment, (v) extend the
Availability Period, (vi) change the definition of "Majority
Banks" in clause 1.2, (vii) change any provision of this
Agreement or any Security Document referred to in any other
provision in relation to which an amendment would require the
consent of all the Banks or which expressly or by implication
requires the approval or consent of all the Banks such that the
relevant approval or consent may be given otherwise than with
the sanction of all the Banks, (viii) change the order of
distribution under clause 10.11, (ix) change clause 17.2 or this
clause 19.11 or (x) release any Guarantor from its obligations
under the Guarantee to which it is a party.
19.12 Reimbursement and indemnity by Banks
Each Bank shall reimburse the Security Trustee, the Agent and the
Swingline Bank and the Overdraft Bank (rateably in accordance with such
Bank's Commitment or Contribution), to the extent that the Security
Trustee, the Agent, the Swingline Bank or the Overdraft Bank (as the
case may be) is not reimbursed by the Borrowers, for the costs, charges
and expenses incurred by the Security Trustee, the Agent, the Swingline
Bank or the Overdraft Bank in connection with or in contemplation of,
the enforcement or attempted enforcement of, or the preservation or
attempted preservation of any rights under, or in carrying out its
duties under, this Agreement and/or any Security Document including (in
each case) the fees and expenses of legal or other professional advisers
except to the extent that the costs, charges or expenses
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arise from the gross negligence or wilful misconduct of the Agent, the
Security Trustee, the Swingline Bank or the Overdraft Bank. Each Bank
shall on demand indemnify the Agent, the Security Trustee, the Swingline
Bank and the Overdraft Bank (rateably in accordance with its Commitment
or Contribution) against all liabilities, damages, costs and claims
whatsoever incurred by the Agent, the Security Trustee, the Swingline
Bank or the Overdraft Bank (as the case may be) in connection with this
Agreement or the performance of its duties under this Agreement and/or
any Security Document or any action taken or omitted by the Agent, the
Security Trustee or the Swingline Bank or the Overdraft Bank (as the
case may be) under this Agreement, unless such liabilities, damages,
costs or claims arise from the Agent's, the Security Trustee's, the
Swingline Bank's or the Overdraft Bank's (as the case may be) own gross
negligence or wilful misconduct.
19.13 Retirement of Agent
(a) The Agent may retire from its appointment as Agent under this
Agreement and the relevant Security Documents having given to
the Parent and each of the Banks not less than 30 days' notice
of its intention to do so, provided that no such retirement
shall take effect unless there has been appointed by the Banks
after consultation with the Parent as a successor agent:
(i) a Bank nominated by the Majority Banks or, failing such
a nomination,
(ii) any reputable and experienced bank or financial
institution with offices in London nominated by the
Agent.
Any corporation into which the Agent may be merged or converted
or any corporation with which the Agent may be consolidated or
any corporation resulting from any merger, conversion,
amalgamation, consolidation or other reorganisation to which the
Agent shall be a party shall, to the extent permitted by
applicable law, be the successor Agent under this Agreement and
the relevant Security Documents without the execution or filing
of any document or any further act on the part of any of the
parties to this Agreement or any relevant Security Document,
save that notice of any such merger, conversion, amalgamation,
consolidation or other reorganisation shall forthwith be given
to the Parent and the Banks.
(b) Upon any such successor as aforesaid being appointed, the
retiring Agent shall be discharged from any further obligation
under this Agreement and any relevant Security Documents (but
shall continue to have the benefit of this clause 19 in respect
of any action it has taken or refrained from taking prior to
such discharge) and its successor and each of the other parties
to this Agreement and any relevant Security Documents shall have
the same rights and obligations among themselves as they would
have had if such successor had been a party to this Agreement or
any relevant Security Documents in place of the retiring Agent.
The retiring Agent shall (at the expense of the Parent) provide
its successor with copies of such of its records as its
successor
104
reasonably requires to carry out its functions under this
Agreement and any relevant Security Documents.
19.14 Retirement of Overdraft Bank and Swingline Bank
With the prior consent of the Parent, not to be unreasonably withheld or
delayed, the Overdraft Bank or the Swingline Bank may resign from its
appointment as Overdraft Bank or Swingline Bank, as the case may be,
under this Agreement, provided that no such retirement shall take effect
unless a successor Overdraft Bank or Swingline Bank, as the case may be,
has been appointed by the Parent and has entered into such arrangements
as may be required to become a party to this Agreement as Overdraft Bank
or Swingline Bank (as the case may be) and to assume the rights and
obligations of the original Overdraft Bank or Swingline Bank (as the
case may be).
19.15 Change of Reference Banks
If (a) the whole of the Contribution (if any) of any Reference Bank is
prepaid and the whole of its Commitment cancelled, (b) the Commitment
(if any) of any Reference Bank is reduced to zero in accordance with
clause 8.5 or 16.1, (c) a Reference Bank novates the whole of its rights
and obligations (if any) as a Bank under this Agreement or (d) any
Reference Bank ceases to provide quotations to the Agent for the
purposes of determining LIBOR, the Agent may, acting on the instructions
of the Majority Banks, terminate the appointment of such Reference Bank
and with the agreement of the Parent (not to be unreasonably withheld or
delayed) appoint another Bank to replace such Reference Bank.
20 Notices and other matters
20.1 Notices
Every notice, request, demand or other communication under this
Agreement shall:
(a) be in writing delivered personally or by first-class prepaid
letter (airmail if available) or telefax;
(b) be deemed to have been received, subject as otherwise provided
in this Agreement, in the case of a letter when delivered and,
in the case of a telefax, when a complete and legible copy is
received by the addressee (unless the date of despatch is not a
business day in the country of the addressee or the time of
despatch of any telefax is after the close of business in the
country of the addressee in which case it shall be deemed to
have been received at the opening of business on the next such
business day);
(c) if sent by telefax to the Agent, be confirmed in writing by
first-class prepaid letter (airmail if available) provided that
non receipt of such letter by the Agent shall not invalidate the
notice; and
(d) be sent:
105
(i) to each Borrower c/o the Parent at:
000-000 Xxxxxxxxxx Xxxxxxx
Xxxxxx X0 0XX
Telefax: 020 7262 4300
Attention: The Treasurer
(ii) to the Agent at:
HSBC Investment Bank plc
Vintners Place
00 Xxxxx Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Telefax: 020 7336 9302
Attention: Syndicated Finance - Execution and Agency
(iii) to the Swingline Bank at:
The Bank of New York, as Swingline Bank
c/o BNY Capital Markets, Inc.
Xxx Xxxx Xxxxxx - 00 Xxxxx
Xxx Xxxx
XX 00000
XXX
Telefax: 001 212 635 6365
Attention: Agency Department
(iv) to the Overdraft Bank at:
HSBC Bank plc
00-00 Xxxxxxx
Xxxxxx XX0X 0XX
Telefax: 020 7260 4800
Attention: Xxxx Xxx
(v) to each Bank
at its address or telefax number
specified in schedule 2 or
in any relevant Substitution Certificate
or to such other address or telefax number as is notified by the
relevant party to the other parties to this Agreement.
20.2 Notices through the Agent
Every notice, request, demand or other communication under this
Agreement to be given by any Borrower to any other party shall be given
to the Agent for onward
106
transmission as appropriate and to be given to any Borrower shall
(except as otherwise provided in this Agreement) be given by the Agent.
20.3 No implied waivers, remedies cumulative
No failure or delay on the part of the Finance Parties or any of them to
exercise any power, right or remedy under this Agreement shall operate
as a waiver thereof, nor shall any single or partial exercise by the
Finance Parties or any of them of any power, right or remedy preclude
any other or further exercise thereof or the exercise of any other
power, right or remedy. The remedies provided in this Agreement are
cumulative and are not exclusive of any remedies provided by law.
20.4 Counterparts
This Agreement may be executed in any number of counterparts and by the
different parties on separate counterparts, each of which when so
executed and delivered shall be an original, but all counterparts shall
together constitute one and the same instrument.
20.5 Third Party Rights
No term of this Agreement is enforceable under the Contracts (Rights of
Third Parties) Xxx 0000 by a person who is not a party to this
Agreement.
21 Governing law and jurisdiction
21.1 Law
This Agreement shall be governed by English law.
21.2 Submission to jurisdiction
The parties to this Agreement agree for the benefit of the Finance
Parties that:
(a) if any party has any claim against any other arising out of or
in connection with this Agreement such claim shall (subject to
clause 21.2c) be referred to the High Court of Justice in
England, to the jurisdiction of which each of the parties
irrevocably submits;
(b) the jurisdiction of the High Court of Justice in England over
any such claim against any Finance Party shall be an exclusive
jurisdiction and no courts outside England shall have
jurisdiction to hear or determine any such claim; and
(c) nothing in this clause 21.2 shall limit the right of any Finance
Party to refer any such claim against any Borrower or any
Guarantor to any other court of competent jurisdiction outside
England, to the jurisdiction of which each Borrower and each
Guarantor hereby irrevocably agrees to submit, nor shall the
taking of proceedings by any Finance Party before the courts in
one or
107
more jurisdictions preclude the taking of proceedings in any
other jurisdiction whether concurrently or not.
21.3 Agent for service of process
Each Borrower which is not incorporated in England and Wales irrevocably
and unconditionally designates, appoints and empowers the Parent to
receive for it and on its behalf service of process issued out of the
High Court of Justice in England in relation to any claim arising out of
or in connection with this Agreement.
IN WITNESS whereof the parties to this Agreement have caused this Agreement to
be duly executed on the date first above written.
108
Schedule 1
Part A - Original Borrowers
Name of Borrower Registered Number Registered office/address
(if any)
1 Cordiant Communications 1320869 000-000 Xxxxxxxxxx
Xxxxx xxx Xxxxxxx
Xxxxxx X0 0XX
2 Xxxxx UK Limited 913184 000-000 Xxxxxxxxxx
Xxxxxxx
Xxxxxx X0 0XX
3 Xxxxx US Holdings Inc. 2790795 Corporation Trust Centre
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx
Xxxxxxxxx
Xxxxxxxx XXX
4 Xxxxx Deutschland HRB 8608 Xxxxxxx Landstrasse
Holdings GmbH 287-289
60314 Frankfurt am Main
Germany
109
Part B - Original Guarantors
Name of Guarantor Registered Registered office/address Percentage of
Number voting share
(if any) capital held by
members of the
Group
1 Cordiant
Communications 1320869 121-141 Westbourne Not applicable
Group plc Terrace London W2 6JR
2 Xxxxx UK Limited 913184 000-000 Xxxxxxxxxx
Xxxxxxx 000%
Xxxxxx X0 0XX
3 Xxxxx US Holdings 2790795 Corporation Trust Centre 100%
Inc. 0000 Xxxxxx Xxxxxx
Xxxxxxxxxx
Xxxxxxxx
XXX
4 Xxxxx Deutschland HRB 8608 Xxxxxxx Xxxxxxxxxxx 000%
Holdings GmbH 287-289
60314 Frankfurt am Main
Germany
5 Xxxxx Advertising 132993871 One Chase Manhattan 100%
USA Inc. Xxxxx
00xx Xxxxx
Xxx Xxxx, 00000, XXX
6 Xxxxx Europe Limited 689584 121-141 Westbourne 000%
Xxxxxxx Xxxxxx X0 0XX
7 ICM International 1802173 00 Xxxxx Xxxxxx 000%
Xxxxxxx Xxxxxx X0X 0XX
8 The Communications ACN: 003 000 Xxxxx Xxxxxx, 100%
Group Pty. Limited 000 000 Xxxxx Xxxxxx
XXX 0000
Xxxxxxxxx
9 Atlas Advertising 964286 121-141 Westbourne 100%
Xxxxxxx Xxxxxxx Xxxxxx X0 0XX
110
Name of Guarantor Registered Registered office/address Percentage of
Number voting share
(if any) capital held by
members of the
Group
10 The Decision Shop 615225 121-141 Westbourne 100%
Xxxxxxx Xxxxxxx Xxxxxx X0 0XX
11 Xxxxx Xxxxxxxxx 0104551773 CT Corporation System 100%
Public Relations -00 000 Xxxxxx Xxxxxx
Inc Xxxxxxx
Xxxxx 00000
XXX
12 Xxxxx Xxxxxxxxx 01451773 CT Corporation System 100%
Advertising Inc 00 000 Xxxxxx Xxxxxx
Xxxxxxx
Xxxxx 00000
XXX
13 Xxxxx Travel & CT Corporation System 100%
Tourism Inc 000 Xxxxxx Xxxxxx
Xxxxxxx
Xxxxx 00000
XXX
14 Xxxxx Worldwide 2138984 Corporation Trust Centre 100%
(Delaware), Inc 0000 Xxxxxx Xxxxxx
Xxxxxxxxxx
Xxxxxxxx
XXX
15 XX.XXX, Inc Corporation Trust Centre 100%
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx
Xxxxxxxx
XXX
16 Healthworld 100 Avenue of the Americas 100%
Corporation Inc Xxxxx 000 Xxx Xxxx
XX 00000
111
Name of Guarantor Registered Registered office/address Percentage of
Number voting share
(if any) capital held by
members of the
Group
17 GHBM Inc 100 Avenue of the 000%
Xxxxxxxx
Xxxxx 000 Xxx Xxxx
XX 00000
18 Xxxx Communications Inc 00 Xxxx 00xx Xxxxxx 000%
0xx Xxxxx
Xxx Xxxx
XX 00000 - 4203
19 Xxxxxxxx Xxxxxx Xxxxxx 100 Avenue of the 100%
& XxXxxxxx Inc Xxxxxxxx
Xxxxx 000 Xxx Xxxx
XX 00000
112
Part C - Original Overdraft Borrowers
Name of Original Registered Registered office/address Percentage of
Overdraft Borrower Number voting share
(if any) capital held by
members of the
Group
22 Atlas Advertising 964286 121-141 Westbourne 100%
Xxxxxxx Xxxxxxx
Xxxxxx
X0 0XX
23 23 Xxxxx Europe 689584 000-000 Xxxxxxxxxx 100%
Xxxxxxx Xxxxxxx
Xxxxxx
X0 0XX
24 Xxxxx Overseas 2217108 121-141 Westbourne 100%
Xxxxxxxx Xxxxxxx Xxxxxxx
Xxxxxx
X0 0XX
25 Xxxxx UK Limited 913184 121-141 Westbourne 000%
Xxxxxxx
Xxxxxx
X0 0XX
26 Cordiant 1320869 000-000 Xxxxxxxxxx Not applicable
Communications Terrace London
Group plc X0 0XX
27 Cordiant Group 63031 121-141 Westbourne 100%
Xxxxxxx Xxxxxxx
Xxxxxx
X0 0XX
28 Cordiant Property 2263916 121-141 Westbourne 100%
Xxxxxxxx Xxxxxxx Xxxxxxx
Xxxxxx
X0 0XX
29 ICM International 1802173 00 Xxxxx Xxxxxx 000%
Xxxxxxx Xxxxxx
X0X 0XX
113
Name of Original Registered Registered office/address Percentage of
Overdraft Borrower Number voting share
(if any) capital held by
members of the
Group
30 Swot Plus Limited 1929347 000-000 Xxxxxxxxxx 000%
Xxxxxxx
Xxxxxx
X0 0XX
31 The Decision Shop 615225 121-141 Westbourne 100%
Xxxxxxx Xxxxxxx
Xxxxxx
X0 0XX
32 XMSS Limited 2463385 000-000 Xxxxxxxxxx 000%
Xxxxxxx
Xxxxxx
X0 0XX
114
Part D - Additional Guarantors
following the Lighthouse Acquisition
Name of Guarantor Registered Registered office/address Percentage of
Number voting share
(if any) capital held by
members of the
Group following
the Lighthouse
Acquisition
1 Lighthouse Global Not Corporation Trust Centre 100%
Network Inc. Applicable 0000 Xxxxxx Xxxxxx
Xxxxxxxxxx Xxxxxxxx
00000 XXX
2 Xxxxxx-Xxxxx Not c/o Xxxxxxx X. Xxxxxxx 100%
Associates, Inc Applicable 000 Xxxxxxxxx Xxxxxx
Xxx Xxxx
XX 00000
XXX
3 Fitch Inc Not 10350 Oletangy River
Applicable Road 100%
Xxxxxxxxxxx
XX 00000
4 Financial Dynamics 01656428 00 Xxxxxxx Xxxxxx 000%
Xxxxxxx Xxxxxx
X0X 0XX
5 Fitch Design 00670130 Smithfield Market 100%
Consultants Limited Xxxxxx
XX0X 0XX
115
Schedule 1
The Banks and their Commitments
==================================================== =============================== ============================
Name Address and Facility A Facility B
telefax number Commitment Commitment
$ $
---------------------------------------------------- ------------------------------- ----------------------------
The Bank of New York 112,500,000 87,500,000
Xxx Xxxxxx Xxxxxx
Xxxxxx X00 0XX
Telefax: 020 7893 6032
Attn: Loans Department
---------------------------------------------------- ------------------------------- ----------------------------
HSBC Bank plc 112,500,000 87,500,000
Poultry,
Xxxxxx XX0X 0XX
Telefax: 020 7260 4800
Attn: Xxxx Xxx
---------------------------------------------------- ------------------------------- ----------------------------
TOTAL $225,000,000 $175,000,000
==================================================== =============================== ============================
116
Schedule 1
Part A - Form of Drawdown Notice
To: HSBC Investment Bank plc
Vintners Place
00 Xxxxx Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Attention: Syndicated Finance - Execution and Agency
OR
The Bank of New York, as Swingline Bank plc Copy:HSBC Investment Bank
c/o BNY Capital Markets, Inc. Vintners Xxxxx
Xxx Xxxx Xxxxxx - 00 Xxxxx 00 Xxxxx Xxxxxx Xxxxxx
Xxx Xxxx Xxxxxx XX0X 0XX
o 200 o
Attention: Agency Department
Facilities of up to US$400,000,000 Agreement dated o 2000
---------------------------------------------------------
We refer to the above Agreement and hereby give you notice that we
[wish to draw down a [Facility [A] [B] Advance]/[Swingline
Advance/[Conversion Advance] of [$]o [in [currency]] on o for [specify
purpose] and select a Term/Initial Interest Period of [o days]/[o
months]. The funds should be credited to [name and number of account]
with [details of bank in [New York City] [London] [principal financial
centre for relevant Optional Currency].
We confirm that:
(i) no event or circumstance has occurred and is continuing
unremedied and unwaived which constitutes a Default; and
(ii) the representations and warranties contained in clause 11.1 of
the Agreement (and so that the representation and warranty in
clause 11.1(i) refers for this purpose to the consolidated
financial statements of the Group in respect of the financial
year ended on 31 December 19o) other than the excluded
representations and warranties are true and correct at the date
of this notice as if made with respect to the facts and
circumstances existing at the date of this notice.
Wordsand expressions defined in the Agreement shall have the same
meanings where used in this notice.
For and on behalf of
..............................
[Name of Borrower]
117
Part B - Form of L/C Application
To The Bank of New York, as Swingline Bank,
x/x XXX Xxxxxxx Xxxxxxx, Xxx.,
Xxx Xxxx Xxxxxx - 00 Xxxxx
Xxx Xxxx
Attention: Agency Department
Copy: HSBC Investment Bank plc
Vintners Place
00 Xxxxx Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Attention: Syndicated Finance - Execution and Agency
o 200 o
Facilities of up to US$400,000,000 Agreement dated o 2000
---------------------------------------------------------
We refer to the above Agreement and hereby request that you issue a Swingline
Letter of Credit with an L/C Issue Date of [ ] for a maximum amount of [ ] in
respect of [ ].
We confirm that:
1) (i) no event or circumstance has occurred and is continuing unremedied
and unwaived which constitutes a Default; and
32.2 (ii) the representations and warranties contained in clause 11.1 of the
Agreement (and so that the representation and warranty in clause 11.1(i)
refers for this purpose to the consolidated financial statements of the
Group in respect of the financial year ended on 31 December 19o) other than
the excluded representations and warranties are true and correct at the
date of this notice as if made with respect to the facts and circumstances
existing at the date of this notice.
Words and expressions defined in the Agreement shall have the same meanings
where used in this notice.
For and on behalf of
..............................
Xxxxx US Holdings Inc.
118
Schedule 1
Part A - Documents and evidence required as conditions precedent to the
delivery of the first Drawdown Notice in respect of the Facilities
(a) A copy, certified as a true, complete and up-to-date copy by an
authorised officer of the relevant company of the constitutional
documents of each Original Borrower, each Original Overdraft Borrower
and each Original Guarantor and all documents relating to the
existence and good standing of the Original Borrowers, the Original
Overdraft Borrowers and Original Guarantors incorporated in the United
States of America.
(b) A copy, certified as a true copy by an authorised officer of the
relevant company, of resolutions of the Board of Directors (or, in the
case of any company incorporated in Germany, a certificate that there
is no supervisory board) of each Original Borrower, each Original
Overdraft Borrower and each Original Guarantor, evidencing approval of
this Agreement and the Security Documents to which it is a party and
authorising its appropriate officers to execute and deliver this
Agreement and the Security Documents to which it is a party (or to
execute a power of attorney for this purpose) and to give all notices
(including Drawdown Notices) and take all other action required by
each Borrower and Guarantor under this Agreement and/or the Security
Documents to which it is a party.
(c) Specimen signatures, authenticated by an authorised officer of the
relevant company (other than any company incorporated in Germany) (or
the Parent in the case of the attorney), of the persons authorised in
the resolutions of the Board of Directors referred to in paragraph (b)
above.
(d) The Hedging Strategy Letter, duly executed.
(e) Opinions of (i) Xxxxxx Xxxx as to English law, (ii) Xxxxxx Xxxx,
counsel to the Banks as to New York law, (and relevant Counsel in
Texas and Georgia) (iii) Oppenhoff & Xxxxxx, counsel to the Banks in
Germany, and (iv) Xxxxx Xxxxxx Xxxxxxx, counsel to the Banks in
Australia, each dated not more than five Banking Days prior to the
First Drawdown Date.
(f) Guarantees duly executed by each of the Original Guarantors.
(g) The Security Trust Deed duly executed by all the parties thereto
(other than the Security Trustee).
(h) The fee letters referred to in clause 9.1, duly executed by all
parties.
(i) HSBC Bank plc's standard forms of cross guarantee, duly executed by
each Original Overdraft Borrower together with HSBC Bank plc's
standard overdraft terms initialled by each Original Overdraft
Borrower.
119
(j) A copy, certified as a true copy by an Authorised Officer of the
Parent, of the letter evidencing the acceptance by the Parent of its
appointment by each Obligor which is not incorporated in England and
Wales as agent for receipt of service of process under this Agreement
and the relevant Security Documents.
(k) A copy, certified as a true, complete and up-to-date copy by an
Authorised Officer of the Parent, of the Group Structure Book.
(l) An excerpt from the commercial register of any Original Borrower or
Original Guarantor incorporated in Germany dated not later than five
Banking Days prior to the First Drawdown Date confirming the
signatories are authorised to act on behalf of any such company.
(m) If the Agent, or its duly authorised representative has not already
received the documents and evidence specified in part B of schedule 4
in form and substance satisfactory to it, a Relevant Acceleration
Notice.
(n) In the case of any Guarantee whereby financial assistance is to be
given by the relevant Subsidiary, a certificate in the form of part E
of schedule 4 (with appropriate amendments to take into account
jurisdictions of incorporation), together with all documents required
to be attached thereto in respect of the relevant subsidiary and a
non-statutory auditor's report.
(o) A copy of the audited financial statements of the Group for the Fiscal
Year ended 31 December 1999 (which shall for the purposes of this
Agreement be deemed to have been delivered pursuant to clause
12.1(e)).
(p) A copy, certified as a true complete and up-to-date copy by an
Authorised Officer of the Parent, of the unaudited (interim)
consolidated financial statements of the Group for the Fiscal Half
-Year ended 30 June 1999 (which shall for the purposes of this
Agreement be deemed to have been delivered pursuant to clause
12.1(e)).
120
Part B - To be delivered prior to the delivery of the first Drawdown Notice in
respect of an Advance to be used to refinance the Existing Lighthouse
Facilities or to pay costs and expenses incurred in connection with the
Lighthouse Acquisition
(q) Either (i) a Consent Notice or (ii) a Unanimous Consent Notice or
(iii) a No Consent Notice or (iv) a Relevant Acceleration Notice.
(r) A copy of the Press Announcement certified as true, complete and
up-to-date copy by an Authorised Officer of the Parent.
(s) Evidence that the Parent, or its wholly owned subsidiary, has received
stockholder agreements from shareholders together holding at least
50.1% of the outstanding share capital of Lighthouse to vote their
shares in favour of the adoption and approval of the Agreement and
Plan of Merger effecting the Lighthouse Acquisition.
(t) A certificate from an Authorised Officer of the Parent confirming
that, as of the date of the Press Announcement and to the best of the
knowledge of the directors of the Parent, there has been no material
adverse change in the financial position or prospects of the
Lighthouse Group from that set forth in the Lighthouse Information
Package
(u) Confirmation that the Existing Lighthouse Facilities will be repaid
and cancelled in full on the First Drawdown Date.
121
Part C - Documents and evidence to be delivered by each additional Guarantor
(v) (If not attached to the certificate referred to in paragraph (h)
below) a copy, certified as true, complete and up to date by the
company secretary or equivalent officer of the relevant Subsidiary of
the Certificate of Incorporation and the Memorandum and Articles of
Association (or equivalent constitutional documents) of the relevant
Subsidiary and, in the case of any such Subsidiary incorporated in the
United States of America, all documents relating to the existence and
good standing of such Subsidiary.
(w) (If not attached to the certificate referred to in paragraph (h)
below) a copy, certified as a true copy by the company secretary (or
equivalent) of the relevant Subsidiary, of resolutions of the board of
directors (or, in the case of any company incorporated in Germany, any
other competent authority) of the relevant Subsidiary, evidencing
approval of the relevant Guarantee and an Obligor Entity's Deed of
Accession (as defined in the Security Trust Deed) and authorising its
appropriate officers to execute and deliver such Guarantee and Obligor
Entity's Deed of Accession, to give all notices and take all other
action required by the relevant Subsidiary as a Guarantor (and, if
requested by the Security Trustee), resolutions of the shareholders of
that Subsidiary evidencing approval of the Guarantee and Obligor
Entity's Deed of Accession).
(x) A copy, certified as a true copy by the company secretary or
equivalent officer of the relevant Subsidiary of all consents,
authorisations, licences and approvals required by the relevant
Subsidiary to authorise, or required by the relevant Subsidiary in
connection with, the execution, delivery, validity, enforceability and
admissibility in evidence of the Guarantee and the performance by the
relevant Subsidiary of its obligations under the Guarantee and the
Obligor Entity's Deed of Accession.
(y) (If not attached to the certificate referred to paragraph (h) below)
specimen signatures, authenticated by the company secretary or
equivalent officer of the relevant Subsidiary of the persons
authorised in the resolutions of the Board of Directors or equivalent,
referred to in paragraph (b), above.
(z) An opinion of (i) legal advisers to the Banks in the country of
incorporation of the relevant Subsidiary and (ii), in the case of a
Guarantee where the relevant Subsidiary is not incorporated in England
and Wales, of Xxxxxx Xxxx, dated not more than fifteen Banking Days
prior to the date of the Guarantee.
(aa) In the case of a Subsidiary not incorporated in England and Wales, a
copy, certified as a true copy by the company secretary or equivalent
officer of the relevant Subsidiary of a letter from the agent of the
relevant Subsidiary for receipt of service of process referred to in
the Guarantee accepting its appointment.
(bb) A Guarantee and an Obligor Entity's Deed of Accession, in each case
duly executed by the relevant Subsidiary.
122
(h) In the case of any Guarantee whereby financial assistance is to be
given by the relevant Subsidiary, a certificate in the form of part E
of schedule 4 (with appropriate amendments to take into account
jurisdictions of incorporation), together with all documents required
to be attached thereto in respect of the relevant subsidiary and a
non-statutory auditor's report;
(i) Excerpt from the commercial register of any relevant Subsidiary
incorporated in Germany dated not later than fifteen Banking Days
prior to the date of the Guarantee confirming the signatories are
authorised to act on behalf of the respective company.
123
Part D - Documents and evidence to be delivered by an Additional Borrower
or Additional Overdraft Borrower
(cc) A copy, certified as true, complete and up to date by the company
secretary or equivalent officer of the relevant Subsidiary of the
Certificate of Incorporation and the Memorandum and Articles of
Association (or equivalent constitutional documents) of the relevant
Subsidiary and, in the case of any such Subsidiary incorporated in the
United States of America, all documents relating to the existence and
good standing of such Subsidiary.
(dd) A copy, certified as a true copy by the company secretary (or
equivalent) of the relevant Subsidiary, of resolutions of the Board of
Directors (or, in the case of any company incorporated in Germany, any
other competent authority) of that Subsidiary evidencing approval of
the Borrower Accession Agreement or Overdraft Borrower Accession
Agreement and an Obligor Entity's Deed of Accession (as defined in the
Security Trust Deed) and authorising its appropriate officers to
execute and deliver such Borrower Accession Agreement or Overdraft
Borrower Accession Agreement and Obligor Entity's Deed of Accession
and to give all notices (including Drawdown Notices) in the case of an
Additional Borrower and take all other action required by the relevant
Subsidiary as an Additional Borrower or Additional Overdraft Borrower,
as the case may be, under this Agreement and the Security Trust Deed.
(ee) A copy, certified as a true copy by the company secretary or
equivalent officer of the relevant Subsidiary of all consents,
authorisations, licences and approvals required by the relevant
Subsidiary to authorise, or required by the relevant Subsidiary in
connection with, the execution, delivery, validity, enforceability and
admissibility in evidence of the Borrower Accession Agreement or
Overdraft Borrower Accession Agreement and the Obligor Entity's Deed
of Accession and the performance by the relevant Subsidiary of its
obligations under the Agreement and the Security Trust Deed.
(ff) Specimen signatures, authenticated by the company secretary or
equivalent officer of the relevant Subsidiary of the persons
authorised in the resolutions of the Board of Directors or equivalent,
referred to in paragraph (b), above.
(gg) An opinion of legal advisers to the Banks in the country of
incorporation of the relevant Subsidiary, dated not more than fifteen
Banking Days prior to the date of the Borrower Accession Agreement or
Overdraft Borrower Accession Agreement.
(hh) An opinion of Xxxxxx Xxxx, dated not more than fifteen Banking Days
prior to the date of the Borrower Accession Agreement or Overdraft
Borrower Accession Agreement.
(ii) In the case of a Subsidiary not incorporated in England and Wales, a
copy, certified as a true copy by the company secretary or equivalent
officer of the relevant Subsidiary of a letter from the agent of the
relevant Subsidiary for receipt of service of process
124
referred to in the Borrower Accession Agreement or Overdraft Borrower
Accession Agreement and the Obligor Entity's Deed of Accession
accepting its appointment.
(jj) A Borrower Accession Agreement or Overdraft Borrower Accession
Agreement and a Obligor Entity's Deed of Accession duly executed by
the Additional Borrower and (in the case of the Borrower Accession
Agreement or Overdraft Borrower Accession Agreement) the Parent.
(kk) A certificate of a director of the Additional Borrower confirming that
utilisation of the Facilities in full or, in the case of an Additional
Overdraft Borrower, utilisation of the Overdraft Facility in full
would not cause any borrowing limit binding on it to be exceeded.
(ll) A copy, certified as a true copy by the company secretary of the
Parent of resolutions of the Board of Directors of the Parent,
evidencing approval of the Parent (for itself and on behalf of the
other Borrowers) to the Subsidiary becoming an Additional Borrower or
an Additional Overdraft Borrower, as the case may be, by entering into
a Borrower Accession Agreement or Overdraft.
(mm) Excerpt from the commercial register of any relevant Subsidiary
incorporated in Germany dated not later than fifteen Banking Days
prior to the date of the Borrower Accession Agreement confirming the
signatories are authorised to act on behalf of the respective company.
(nn) A written confirmation from each Guarantor that its Guarantee
continues in full force and effect notwithstanding the accession of
the relevant Additional Borrower or Additional Overdraft Borrower and
guarantees the borrowings of the relevant Additional Borrower or
Additional Overdraft Borrower.
125
Part E - Form of Director's Certificate regarding financial assistance
I, o being [a Director] [the Secretary] of [company] Limited (the "Company"),
HEREBY CERTIFY as follows:
33 Private Company
The Company is a private company and is not a subsidiary of a public
company.
34 [*2 Wholly-owned Subsidiary]
The Company is a wholly-owned Subsidiary of [o].
35 Constitutional Documents
The documents annexed to this certificate as annexure "[A]" constitute
a true, complete and up to date copy of the certificate of
incorporation, each certificate of incorporation on change of name of
the Company, any certificate of re-registration as a public or private
company and the memorandum and articles of association of the Company
containing all modifications thereto and there are no other
constitutional documents of the Company.
36 Board Resolutions
The documents annexed to this certificate as annexure "[B]" are true
and complete copies of the minutes of a meeting of the board of
directors of the Company duly convened and held on [o]. The
resolutions set out therein were duly passed and have not been amended
or revoked. No borrowing limits or other restrictions (or lack of
power) in relation to the giving of guarantees or security or
otherwise of the Company will be exceeded as a result of the Company
entering into the [Documents] (as defined in the minutes referred to
above), borrowing moneys thereunder or giving the guarantees and
security thereunder or incurring or performing the obligations
expressed to be assumed by it thereunder.
37 155(6)a Declaration and relevant statutory report
The document annexed to this certificate as annexure "[C]" is a true
copy of the statutory declaration made under section 155(6) of the
Companies Xxx 0000 (the "Act") on [o]. The persons named as directors
in the statutory declaration were, at the date of the statutory
declaration, the only directors of the Company. The document annexed
to such statutory declaration is a true copy of the report made
pursuant to section 156(4) of the Act and the auditors named in it are
the Company's auditors.
126
38 155(6)b Declarations and relevant statutory reports
[The Company is the holding company of [o Limited and o Limited] (the
"Relevant Subsidiaries"). The documents annexed to this certificate as
annexure "[D]" are true copies of the statutory declarations made
under section 155(6) of the Act in respect of the Relevant
Subsidiaries on [o]. The persons respectively named as directors in
such statutory declarations were, as at the date of the statutory
declarations, the only directors of the Company. The documents annexed
to each of such statutory declarations are true copies of the reports
made pursuant to section 156(4) of the Act and the auditors named in
each such document are the Company's auditors.]
39 Parent declarations relating to the Company's financial assistance
[There is no holding company] [o Limited and o Limited are holding
companies] of the Company the directors of which are required to make
a statutory declaration in relation to the Company's financial
assistance pursuant to section 155(6) of the Act.]
40 Company's Resolution
The document annexed to this certificate as annexure "[E]" is a true
copy of the special resolutions of the Company approving the financial
assistance to be given by the Company described in the statutory
declaration referred to in paragraph [5] above (the "Company's
financial assistance") [and the financial assistance to be given by
the Relevant Subsidiaries described in the statutory declarations
referred to in paragraph [6] above] at the extraordinary general
meeting of the Company duly convened and held on [o]. At that meeting
the statutory declarations referred to in paragraphs [5] and [6] above
were available for inspection by members of the Company. Every member
of the Company who is entitled to vote at a general meeting of the
Company consented to or voted in favour of the special resolution.]
41 Company's holding companies' shareholders' resolutions
There is no holding company of the Company which is required to pass
(and has not passed) a special resolution in relation to the Company's
financial assistance pursuant to section 155(5) of the Act.
42 Authorised Signatories
Set out below are true signatures of those persons authorised (whether
signing alone or jointly) by the resolutions of the board of directors
of the Company referred to in paragraph [4] above to sign any of the
[Documents] (as defined in the minutes referred to in such paragraph
[4]) and to execute all such undertakings, statements, certificates,
notices (including, without limitation, any Drawdown Notice),
acknowledgements and other documents as may be required to be done,
signed and executed by or on behalf of the Company in connection with
the [Documents] (as so defined) and otherwise in relation to or
ancillary to the same.
127
[name] ..............................
[name] ..............................
SIGNED [DATE]
...........................
[Director][Secretary]
128
Schedule 1
Calculation of Additional Cost
Schedule 2 The Additional Cost shall be calculated by the Agent in respect of
each period for which it falls to be calculated in accordance with the
following formulae:
In relation to each amount in Sterling:
CL + S(L - Z) + 0.01F = per cent. per annum
---------------------
100 - (C+S)
In relation to each other amount:
0.01F
Y -----
100 = per cent. per annum
Where:
C = The amount required to be held as a non-interest
bearing cash ratio deposit with the Bank of England
expressed as a percentage of an eligible
institution's eligible liabilities (above any stated
minimum).
F = The amount of Sterling per L1,000,000 of the fee base
of an authorised institution payable to the Financial
Services Authority per annum (disregarding any minimum fee
payable under the Fees Regulations).
L = The rate of interest per annum at which Sterling
deposits are offered by the Agent to leading banks in
the London Interbank Market at or about 11.00 a.m. on
the date of calculation for a period comparable to
the period for which the Additional Cost is to be
calculated.
S = The amount required to be placed as special
deposits with the Bank of England, expressed as a
percentage of an eligible institution's eligible
liabilities (above any stated minimum).
Y = The fraction of foreign currency liabilities taken
into account under the Fees Regulations in
calculating the fee base (disregarding any offset for
claims on non-resident offices).
Z = The lower of L and the rate of interest per annum
paid by the Bank of England on special deposits at or about
11.00 a.m. on the date of calculation.
Schedule 3 For the purposes of calculating the Additional Cost:
129
1. C, L, S and Z are included in the formula as numbers and not as
percentages, e.g. if C = 0.15 per cent. and L = 7 per cent. CL is
calculated as 0.15 x 7;
2. the relevant formula is applied on the first day of each period for
which it falls to be calculated (and the result shall apply for the
duration of such period);
3. each amount is rounded up to the nearest four decimal places; and
4. if the formula produces a negative percentage, the percentage shall be
taken as zero.
Schedule 4 If alternative or additional financial requirements are imposed by
the Bank of England, the Financial Services Authority or any other
United Kingdom governmental authority or agency which in the Agent's
o pinion (after consultation with the Banks) make the formulae (or
either of them) no longer appropriate, the Agent shall be entitled by
notice to the Parent to stipulate such other formulae as shall be
suitable to apply in substitution for the formulae. Any such other
formulae so stipulated shall take effect in accordance with the terms
of such notice.
Schedule 5 In this schedule 5:
"authorised" and "institution" have the meanings given to those
terms in the Banking Xxx 0000;
"Bank of England Act" means the Xxxx xx Xxxxxxx Xxx 0000;
"eligible institution" has the meaning given to that term in
schedule 2 to the Bank of England Act;
"eligible liabilities" has the meaning given to that term in the Cash
Ratio Deposits (Eligible Liabilities) Order 1998 or the applicable
substitute order made under the Bank of England Act as is in force on
the date of application of the formulae;
"fee base" has the meaning given to that term in the Fees Regulations;
"Fees Regulations" means the Banking Supervision (Fees) Regulations
2000 or the applicable substitute regulations made under the Bank of
England Act as are in force on the date of application of the
formulae; and
"special deposits" has the meaning given to that term by the Bank of
England on the date of application of the formulae.
130
Schedule 6
Form of Substitution Certificate
Part A (single transfers)
NB: 1 Banks are advised not to employ Substitution Certificates or
otherwise to assign, novate or transfer interests in the Agreement
without first ensuring that the transaction complies with all
applicable laws and regulations, including the Financial Services Xxx
0000 and regulations made thereunder.
1 It is expected that Banks will enter into separate arrangements
dealing with the monies to be paid to the Existing Bank by the
Substitute in consideration of the novation (e.g. principal, accrued
interest, fees and any mismatched funding adjustment). Unless the
Transfer Date is a rollover date, mismatches of parties' funding may
arise. This Certificate does not deal with these issues, nor does it
deal with any interim risk participation the Existing Bank may grant
to the Substitute pending the Transfer Date.
To: HSBC Investment Bank plc
Vintners Place
00 Xxxxx Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Attention: Syndicated Finance - Execution and Agency
[Date]
Substitution Certificate
This Substitution Certificate relates to an Agreement (the "Agreement") dated 4
July 2000 between Cordiant Communications Group plc as the Parent (1), the
companies whose names, registered numbers and registered offices are set out in
schedule 1 thereto as Original Borrowers or Original Overdraft Borrowers (2),
The Bank of New York and HSBC Investment Bank plc as Arrangers (3), the banks
and financial institutions whose respective names and addresses are set out in
schedule 2 thereto as Banks (4) HSBC Investment Bank plc as Agent and Security
Trustee (5), The Bank of New York as Swingline Bank (6) and HSBC Bank plc as
Overdraft Bank (7). Terms defined in the Agreement shall have the same meaning
in this Substitution Certificate.
2 [Name of Existing Bank] (the "Existing Bank") (a) confirms the accuracy of
the summary of its Commitment and Contribution set out in the schedule to
this Substitution Certificate; and (b) requests [Substitute Bank] (the
"Substitute") to accept by way of novation the portion of its Commitment
and Contribution specified in the schedule to this Substitution
131
Certificate by counter-signing and delivering this Substitution Certificate
to the Agent at its address for the service of notices specified in the
Agreement.
3 The Substitute requests the Agent (on behalf of itself, the Swingline Bank,
the Overdraft Bank, the Borrowers, the Guarantors, the Arrangers, the
Security Trustee and the Banks) to accept this Substitution Certificate as
being delivered to the Agent pursuant to and for the purposes of clause
18.3 of the Agreement, so as to take effect in accordance with its terms on
[date of transfer], [being not earlier than [5] Banking Days after date of
delivery of the Certificate to the Agent] (the "Transfer Date").
4 The Agent, on behalf of itself, the Swingline Bank, the Overdraft Bank, the
Borrowers, the Guarantors, the Arrangers, the Security Trustee and the
Banks confirms the novation effected by this Substitution Certificate
pursuant to and for the purposes of clause 18.3 of the Agreement.
5 The Substitute confirms:
(a) that it has received copies of the Agreement and all other
documentation and information required by it in connection with the
transactions contemplated by this Substitution Certificate;
(b) that it has not relied upon any statement, opinion, forecast or other
representation (including, without limitation, anything contained in
the Information memorandum) or warranty made by the Existing Bank, the
Arrangers, the Security Agent or the Agent to induce it to enter into
this Substitution Certificate;
(c) that it has made and will continue to make, without reliance on the
Existing Bank or any other Finance Party, and based on such documents
as it considers appropriate, its own appraisal of the creditworthiness
of each Borrower and the Group and its own independent investigation
of the financial condition, prospects and affairs of each Borrower and
the Group in connection with the making and continuation of the
Facilities under the Agreement;
(d) that neither the Existing Bank nor any other Finance Party shall at
any time be deemed to have had or have a duty or responsibility,
either historically, initially or on a continuing basis, to provide
the Substitute with any credit or other information with respect to
any Borrower or any other member of the Group whether coming into its
possession before the making of any Drawing or at any time or times
thereafter, other than (in the case of the Agent) as provided in
clauses 19.3(a) and 19.5(a) of the Agreement;
(e) that it has made and will continue to make its own assessment of the
legality, validity, enforceability and sufficiency of the Agreement,
the Security Documents and this Substitution Certificate and has not
relied and will not rely on the Existing Bank, the Arrangers, the
Security Agent or the Agent or any statements made by any of them in
that respect;
132
(f) that, accordingly, none of the Existing Bank, the Arrangers, the
Security Agent and the Agent shall make any representations or
warranties in respect of, or shall have any liability or
responsibility to the Substitute in respect of any of the foregoing
matters or any other matter referred to in clause 19.7 of the
Agreement; and
(g) that it is (or will, at any time any payment to it by any Borrower is
to be made, be) a Qualifying Bank.
1 Execution of this Substitution Certificate by the Substitute constitutes
its representation to the Existing Bank and all other parties to the
Agreement and the Security Trust Deed that it has power to become party to
the Agreement and the Security Trust Deed as a Bank on the terms herein and
therein set out and has taken all necessary steps to authorise execution
and delivery of this Substitution Certificate.
2 The Substitute hereby undertakes to the Existing Bank, the other Banks, the
Borrowers, the Guarantors, the Arrangers, the Security Trustee, the
Swingline Bank, the Overdraft Bank and the Agent that it will perform in
accordance with their terms all those obligations which by the respective
terms of the Agreement and the Security Trust Deed will be assumed by it
after acceptance of this Substitution Certificate by the Agent.
3 Without limiting the above paragraphs, nothing in this Substitution
Certificate obliges the Existing Bank to:
(a) accept any re-transfer from the Substitute of any of the rights,
benefits and/or obligations hereby transferred; or
(b) support any losses incurred by the Substitute by reason of any
non-performance by any Borrower or any other party to the Agreement or
any of the Security Documents or any document relating thereto of any
of its obligations under the same.
4 This Substitution Certificate and the rights and obligations of the parties
hereunder shall be governed by and construed in accordance with English
law. Clauses 21.2 and 21.3 of the Agreement inclusive are incorporated
herein by reference.
5 This Substitution Certificate may be executed in any number of counterparts
and by different parties on separate counterparts, each of which when so
executed and delivered shall be an original, but all counterparts shall
together constitute one and the same instrument.
Note: This Substitution Certificate is not a security, bond, note,
debenture, investment or similar instrument.
AS WITNESS the hands of the authorised signatories of the parties hereto on the
date appearing below.
133
The Schedule
------------
Amount of Contribution Portion Novated
Facility A Facility B Swingline Overdraft Facility B Facility B Swingline Overdraft
Facility Facility Facility Facility
$ $ $ L $ $ $ L
Amount of Commitment Portion Novated
Facility A Facility B Swingline Overdraft Facility A Facility Swingline Overdraft
Facility Facility B Facility Facility
$ $ $ L $ $ $ L
Administrative Details of Substitute
Lending office:
Account for payments:
Telephone:
Telefax:
Attention:
134
[Existing Bank] [Substitute]
By: By:
Date Date:
The Agent
By:
on its own behalf and on behalf of the other Finance Parties, Borrowers and all
other parties to the Agreement and the Security Trust Deed.
Date:
135
Part B (global form)
NB 1. Banks are advised not to employ Substitution Certificates
or otherwise to assign, novate or transfer interests in the
Agreement without first ensuring that the transaction complies
with all applicable laws and regulations, including the Financial
Services Xxx 0000 and regulations made thereunder.
2. It is expected that Banks will enter into separate
arrangements dealing with the monies to be paid to the Existing
Banks by the Substitutes in consideration of the novation (e.g.
principal, accrued interest, fees and any mismatched funding
adjustment). Unless the Transfer Date is a rollover date,
mismatches of parties' funding may arise. This Certificate does
not deal with these issues, nor does it deal with any interim
risk participation the Existing Banks may grant to the
Substitutes pending the Transfer Date.
To: HSBC Investment Bank plc
Vintner's Place
00 Xxxxx Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Attention: Syndicated
-----------------------
Finance - Execution and
-----------------------
Agency
------
[Date]
Substitution Certificate
This Substitution Certificate relates to an Agreement (the "Agreement") dated 4
July 2000 between Cordiant Communications Group plc as the Parent (1), the
companies whose names, registered numbers and registered offices are set out in
schedule 1 thereto as Original Borrowers or Original Overdraft Borrowers (2),
The Bank of New York and HSBC Investment Bank plc as Arrangers(3), the banks and
financial institutions whose respective names and addresses are set out in
schedule 1 thereto as Banks (4), HSBC Investment Bank plc as Agent and Security
Trustee (5), The Bank of New York as Swingline Bank (6) and HSBC Bank plc as
Overdraft Bank (7). Terms defined in the Agreement shall have the same meaning
in this Substitution Certificate.
137
43 Each of the banks set out as Existing Banks in part A of the schedule below
(the "Existing Banks") (a) confirms the accuracy of the summary of its
participation in the Agreement set out in the schedule and (b) requests
each of the banks set out as Substitute Banks in Part C of the schedule
(the "Substitutes") to accept by way of novation the portion of such
participation specified (or calculated as specified) in the schedule by
counter-signing and delivering this Substitution Certificate to the Agent
at its address for the service of notices specified in the Agreement.
44 Each of the Substitutes hereby requests the Agent (on behalf of itself, the
other Finance Parties, all Borrowers and all other parties to the
Agreement) to accept this Substitution Certificate as being delivered to
the Agent pursuant to and for the purposes of clause 18.3 of the Agreement,
so as to take effect in accordance with the terms thereof on [date of
transfer] (the "Transfer Date") or on such later date as may be determined
in accordance with the terms thereof.
45 The Agent (on behalf of itself, the other Finance Parties, the Borrowers
and all other parties to the Agreement) confirms each of the novations
effected by this Substitution Certificate pursuant to and for the purposes
of clause 18.3 of the Agreement, so as to take effect in accordance with
the respective terms thereof.
46 Each of the Substitutes confirms:
(a) that it has received copies of the Agreement and all other
documentation and information required by it in connection with the
transactions contemplated by this Substitution Certificate;
(b) that it has not relied upon any statement, opinion, forecast or other
representation (including, without limitation, anything contained in
the Information Memorandum) or warranty made by the Existing Banks,
the Arrangers, the Security Agent or the Agent to induce it to enter
into this Substitution Certificate;
(c) that it has made and will continue to make, without reliance on the
Existing Banks or any other Finance Party, and based on such documents
as it considers appropriate, its own appraisal of the creditworthiness
of each Borrower and the Group and its own independent investigation
of the financial condition, prospects and affairs of each Borrower and
the Group in connection with the making and continuation of the
Facilities under the Agreement;
137
(d) that neither the Existing Banks nor any other Finance Party shall at
any time be deemed to have had or have a duty or responsibility,
either historically, initially or on a continuing basis, to provide
the Substitutes with any credit or other information with respect to
any Borrower or any other member of the Group whether coming into its
possession before the making of any Drawing or at any time or times
thereafter, other than (in the case of the Agent) as provided in
clauses 19.3(a) and 19.5(a) of the Agreement;
(e) that it has made and will continue to make its own assessment of the
legality, validity, enforceability and sufficiency of the Agreement,
the Security Documents and this Substitution Certificate and has not
relied and will not rely on the Existing Banks, the Arrangers, the
Security Agent or the Agent or any statements made by any of them in
that respect;
(f) that, accordingly, none of the Existing Banks, the Arrangers, the
Security Agent and the Agent shall make any representations or
warranties in respect of, or shall have any liability or
responsibility to the Substitutes in respect of, any of the foregoing
matters or any other matter referred to in clause 19.7 of the
Agreement;
(g) that it is (or will, at any time any payment to it by any Borrower is
to be made, be) a Qualifying Bank.
47 Execution of this Substitution Certificate by each of the Substitutes
constitutes its representation to each of the Existing Banks and all other
parties to the Agreement and the Security Trust Deed that it has power to
become party to the Agreement and the Security Trust Deed as a Bank on the
terms herein and therein set out and has taken all necessary steps to
authorise execution and delivery of this Substitution Certificate.
48 Each of the Substitutes hereby undertakes to the Existing Banks, the
Finance Parties, the Borrowers and each of the other parties to the
Agreement that it will perform in accordance with its terms all those
obligations which by the terms of the Agreement and the Security Trust Deed
will be assumed by it after acceptance of this Substitution Certificate by
the Agent.
49 Without limiting the above paragraphs, nothing in this Substitution
Certificate obliges any of the Existing Banks to:
(a) accept any re-transfer from any Substitute of any of the rights,
benefits and/or obligations hereby transferred; or
(b) support any losses incurred by any Substitute by reason of any
non-performance by any Obligor or any other party to the Agreement or any
of the Security Documents or any document relating thereto of any of its
obligations under the same.
50 Each Substitute (and the Existing Banks in respect of the transfers to such
Substitute) agrees to be bound by this Substitution Certificate
notwithstanding that any other Substitute intended to execute this
Substitution Certificate may not do so or may not be effectually bound.
9 This Substitution Certificate may be executed in any number of counterparts
and by different parties on separate counterparts, each of which when so
executed and delivered shall be an original, but all counterparts shall
together constitute one and the same instrument.
138
10 This Substitution Certificate and the rights and obligations of the parties
hereunder shall be governed by and construed in accordance with English
law. Clauses 21.2 and 21.3 of the Agreement inclusive are incorporated
herein by reference.
Note: This Substitution Certificate is not a security, bond, note,
debenture, investment or similar instrument.
AS WITNESS the hands of the authorised signatories of the parties hereto on the
date appearing below.
139
The Schedule
Part A
Existing Banks' Commitments, Contributions being each of their participations in
--------------------------------------------------------------------------------
the Agreement as at the date of this Substitution Certificate
-------------------------------------------------------------
[Set out each Existing Bank's participation including
Commitments and Contributions]
Part B
------
Portion Transferred
-------------------
[Set out the portion of each Existing Bank's
Commitments and Contributions transferred]
The portion of an Existing Bank's [Commitments and Contributions in respect of
each Facility etc.] to be transferred to a particular Substitute is [as set out
below/calculated as follows:]]
[set out details or method of calculation]
Part C
[Set out names of Substitute Banks and the aggregate amounts of the Commitments
and Contributions in respect of each Facility being transferred to them] [Insert
execution particulars and each Substitute's administration details]
[Each of the Existing Banks] [Each of the Substitutes]
By:..................................... By:................................
Date: Date:
The Agent
By:
.....................................
on its own behalf
and on behalf of the other Finance Parties, the Borrowers and all other parties
to the Agreement and the Security Trust Deed.
141
Schedule 1
Permitted Encumbrances
================== ================== ============== ================= ==============================================
Country Company Currency Amount Description
------------------ ------------------ -------------- ----------------- ----------------------------------------------
Australia Xxxxxx Xxxxxxxxx AUD 78,487 Rental bonds/deposits
------------------ ------------------ -------------- ----------------- ----------------------------------------------
China Xxxxx China HKD 835,000 Cash collateral to secure rental agreement
------------------ ------------------ -------------- ----------------- ----------------------------------------------
France Xxxxx France FRF 1,073,000 Cash collateral to secure rental guarantee
------------------ ------------------ -------------- ----------------- ----------------------------------------------
Greece Xxxxx Hellas GRD 50,000,000 Charge on accounts receivable re Xios Bank
facility
------------------ ------------------ -------------- ----------------- ----------------------------------------------
Greece Xxxxx Hellas GRD 75,000,000 Post dated bills re guarantee facility
provided by Xios Bank
------------------ ------------------ -------------- ----------------- ----------------------------------------------
India Xxxxx India Ltd INR 75,000,000 Hypothecation of book debts and equitable
mortgage of properties for bank facilities
granted by both HSBC and Xxxxxxxxx Bank
------------------ ------------------ -------------- ----------------- ----------------------------------------------
Indonesia Xxxxx Indonesia IDR 1,000,000,000 Charge on receivables re Lippo Bank facility
------------------ ------------------ -------------- ----------------- ----------------------------------------------
Netherlands Xxxxx Not Just NLG 2,000,000 Charge on accounts receivable re ABN AMRO
Film bank facility
------------------ ------------------ -------------- ----------------- ----------------------------------------------
Netherlands Cordiant Finance NLG 18,463 Cash collateral to secure rental guarantee
BV
------------------ ------------------ -------------- ----------------- ----------------------------------------------
New Zealand The Xxxxx Palace NZD 500,000 Debenture over company assets re Countrywide
Bank facility
------------------ ------------------ -------------- ----------------- ----------------------------------------------
Sweden Xxxxx Sweden SEK 4,150,000 Charge on assets re Provinsbanken/Osgota
Enskilda Banken bank and guarantee facility
------------------ ------------------ -------------- ----------------- ----------------------------------------------
Taiwan Xxxxx Taiwan NTD 15,000,000 Cash collateral for media guarantee facility
------------------ ------------------ -------------- ----------------- ----------------------------------------------
USA Xxx Xxxxx WW USD Variable Cash surrender value of life assurance policy
------------------ ------------------ -------------- ----------------- ----------------------------------------------
UK UK Operating GBP variable Fixed charge over TV receivables re. ITVA
companies
------------------ ------------------ -------------- ----------------- ----------------------------------------------
UK CCG plc ESP 60,000,000 Escrow account held with Bankinter for
deferred consideration re minority purchase
of Grupo Xxxxx Spain
================== ================== ============== ================= ==============================================
143
Schedule 1 - Part A
Borrower Accession Agreement
THIS BORROWER ACCESSION AGREEMENT is dated [ ] and made BETWEEN:
(1) o (No. o) whose registered office is at o (the "Additional Borrower");
(2) CORDIANT COMMUNICATIONS GROUP PLC (No. 1320869) whose registered office
is at 000-000 Xxxxxxxxxx Xxxxxxx, Xxxxxx X0 0XX (the "Parent"); and
(3) HSBC INVESTMENT BANK PLC of Vintners Place 00 Xxxxx Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX in its capacity as Agent under the Agreement referred to
below on behalf of itself the and the other Finance Parties (the "Agent").
WHEREAS:
(A) The Additional Borrower is a Subsidiary of the Parent.
(B) By an agreement dated 4 July 2000 and made between the Parent (1), the
companies whose names and, where applicable, registered offices and
registered numbers are set out in parts A or C of schedule 1 thereto (2),
the Arrangers (3), the banks and financial institutions whose names and
addresses are set out in schedule 2 thereto (4), the Agent and the Security
Trustee (5), the Swingline Bank (6) and the Overdraft Bank (7) (as from
time to time amended, varied, extended, restated or replaced, the
"Agreement"), the Banks agreed to make available to the Borrowers credit
facilities.
(C) The Parent has undertaken to procure that an agreement supplemental to
the Agreement shall be executed and delivered by any Subsidiary of the
Parent which the Parent intends should become an Additional Borrower under
the Agreement.
NOW THIS BORROWER ACCESSION AGREEMENT WITNESSES as follows:
1 Agreement definitions
Unless the context otherwise requires or unless otherwise defined in this
Borrower Accession Agreement, words and expressions defined in the
Agreement shall have the same meaning when used in this Borrower Accession
Agreement or the Recitals hereto. Clauses 1.3 and 1.4 of the Agreement
shall apply to this Borrower Accession Agreement, mutatis mutandis, as if
expressly set out herein.
2 Accession to the Agreement
With effect from the date of this Borrower Accession Agreement, the
Additional Borrower shall become a party to the Agreement and a Borrower
thereunder as if named therein in part A of schedule 1 thereto and with
effect from such date shall
143
assume obligations towards and rights against the other Borrowers, the
Agent, the Arranger, the Funders and the Security Trustee as if so named
therein.
3 Continuance of the Agreement
Notwithstanding this Borrower Accession Agreement, the provisions of the
Agreement shall continue in full force and effect and, with effect from the
date of this Borrower Accession Agreement, the Agreement shall be read and
construed as one instrument as if references in the Agreement to "this
Agreement" were to the Agreement and this Borrower Accession Agreement
taken together.
4 Consent
The Parent (on behalf of itself and, the other Borrowers) and the Agent (on
behalf of itself and the other Finance Parties) consent to the Additional
Borrower becoming a Borrower as set out in clauses 2 and 3.
5 Representations and warranties
The Additional Borrower represents and warrants to each of the Funders, the
Arrangers, the Security Trustee and the Agent in the terms of clause 11.1
of the Agreement other than the excluded representations and warranties as
if references therein (i) to this "Agreement" or to the "Security
Documents" were also to this Borrower Accession Agreement and (ii) to the
"Borrowers" or any "member of the Group" were to the Additional Borrower.
6 Law [and jurisdiction]
----------------------
This Borrower Accession Agreement shall be governed by and construed in
accordance with English law.
[Jurisdiction clause and appointment of agent for service of process]
IN WITNESS whereof this Borrower Accession Agreement has been entered into the
day and year first above written
144
Part B - Overdraft Borrower Accession Agreement
THIS OVERDRAFT BORROWER ACCESSION AGREEMENT is dated [ ] and made BETWEEN:
(1) (No. o) whose registered office is at o (the "Additional Overdraft
Borrower");
(2) CORDIANT COMMUNICATIONS GROUP PLC (No. 1320869) whose registered office
is at 000/000 Xxxxxxxxxx Xxxxxxx, Xxxxxx X0 0XX (the "Parent"); and
(3) HSBC INVESTMENT BANK PLC of Vintners Place 00 Xxxxx Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX in its capacity as Agent under the Agreement referred to
below on behalf of itself and the other Finance Parties (the "Agent").
WHEREAS:
(A) The Additional Overdraft Borrower is a Subsidiary of the Parent.
(B) By an agreement dated 4 July 2000 and made between the Parent (1), the
companies whose names and, where applicable, registered offices and
registered numbers are set out in parts A or C of schedule 1 thereto (2),
the Arrangers (3), the banks and financial institutions whose names and
addresses are set out in schedule 2 thereto (4), the Agent and the Security
Trustee (5), the Swingline Bank (6) and the Overdraft Bank (7) (as from
time to time amended, varied, extended, restated or replaced, the
"Agreement"), the Banks agreed to make available to the Borrowers credit
facilities.
(C) The Parent has undertaken to procure that an agreement supplemental to
the Agreement shall be executed and delivered by any Subsidiary of the
Parent which the Parent intends should become an Additional Overdraft
Borrower under the Agreement.
NOW THIS OVERDRAFT BORROWER ACCESSION AGREEMENT WITNESSES as follows:
1 Agreement definitions
Unless the context otherwise requires or unless otherwise defined in this
Overdraft Borrower Accession Agreement, words and expressions defined in
the Agreement shall have the same meaning when used in this Overdraft
Borrower Accession Agreement or the Recitals hereto. Clauses 1.3 and 1.4 of
the Agreement shall apply to this Overdraft Borrower Accession Agreement,
mutatis mutandis, as if expressly set out herein.
2 Accession to the Agreement
With effect from the date of this Overdraft Borrower Accession Agreement,
the Additional Overdraft Borrower shall become a party to the Agreement and
an Overdraft Borrower thereunder as if named therein as an Overdraft
Borrower and with effect from such date shall assume obligations towards
and rights against the other Borrowers, the Agent, the Arranger, the
Funders and the Security Trustee as if so named therein.
3 Continuance of the Agreement
Notwithstanding this Overdraft Borrower Accession Agreement, the provisions
of the Agreement shall continue in full force and effect and, with effect
from the date of this Overdraft Borrower Accession Agreement, the Agreement
shall be read and construed as one instrument as if references in the
Agreement to "this Agreement" were to the Agreement and this Overdraft
Borrower Accession Agreement taken together.
4 Consent
The Parent (on behalf of itself and, the other Borrowers) and the Agent (on
behalf of itself and the other Finance Parties) consent to the Additional
Overdraft Borrower becoming an Overdraft Borrower as set out in clauses 2
and 3.
5 Representations and warranties
The Additional Overdraft Borrower represents and warrants to each of the
Funders, the Arrangers, the Security Trustee and the Agent in the terms of
clause 11.1 of the Agreement other than the excluded representations and
warranties as if references therein (i) to this "Agreement" or to the
"Security Documents" were also to this Overdraft Borrower Accession
Agreement and (ii) to the "Borrowers" or any "member of the Group" were to
the Additional Overdraft Borrower.
6 Law [and jurisdiction]
This Overdraft Borrower Accession Agreement shall be governed by and
construed in accordance with English law.
[Jurisdiction clause and appointment of agent for service of process].
IN WITNESS whereof this Overdraft Borrower Accession Agreement has been entered
into the day and year first above written.
146
Schedule 2
Permitted Guarantees
========================== ================== =============== =============== =======================================
Country Company Currency Amount Description
-------------------------- ------------------ --------------- --------------- ---------------------------------------
Australia Xxxxxx Xxxxxxxxx AUD 13,584,120 Guarantee given by the company for
rent
-------------------------- ------------------ --------------- --------------- ---------------------------------------
Austria Xx. Xxxxxxx Xxxxx ATS 600,000 Guarantee given by the company for
rent
-------------------------- ------------------ --------------- --------------- ---------------------------------------
Belgium LDV Xxxxx BEF 1,500,000 Indemnities provided in respect of a
guarantee provided by Deutsche Bank
for rent
-------------------------- ------------------ --------------- --------------- ---------------------------------------
Canada CCG plc CAD 1,000,000 Guarantee given by plc for the Nova
Scotia facility provided to Xxxxx
Canada
-------------------------- ------------------ --------------- --------------- ---------------------------------------
Germany Xxxxxx & Friends DEM 500,000 Indemnities provided in respect of a
guarantee provided by SMH Bank for
property lease
-------------------------- ------------------ --------------- --------------- ---------------------------------------
Germany Xxxxxx & Friends DEM 4,600,000 Indemnities provided in respect of a
guarantee provided by BHF Bank for
property lease
-------------------------- ------------------ --------------- --------------- ---------------------------------------
Greece Xxxxx Hellas GRD 200,000,000 Indemnities provided in respect of
guarantees issued under guarantee
facility provided by Euromerchant Bank
-------------------------- ------------------ --------------- --------------- ---------------------------------------
Greece Xxxxx Hellas GRD 150,000,000 Indemnities provided in respect of
guarantees issued under guarantee
facility provided by Xios Bank
(secured 50% on post-dated bills)
-------------------------- ------------------ --------------- --------------- ---------------------------------------
Greece Xxxxx Hellas GRD 200,000,000 Indemnities provided in respect of
guarantees issued under guarantee
facility provided by ABN AMRO
-------------------------- ------------------ --------------- --------------- ---------------------------------------
Hong Kong Xxxxx Hong Kong HKD 100,000 Guarantee provided to SCMP in respect
of Zenith Media
-------------------------- ------------------ --------------- --------------- ---------------------------------------
Italy 141 Italia ITL 17,725,000 Indemnities provided in respect of a
guarantee provided by BCI to Zurigo
Assurance
-------------------------- ------------------ --------------- --------------- ---------------------------------------
Italy Xxxxx Italia ITL 131,450,000 Indemnities provided in respect of a
guarantee provided by BCI to Zurigo
Assurance
-------------------------- ------------------ --------------- --------------- ---------------------------------------
Italy Xxxxx Italia ITL 30,000,000 Indemnities provided in respect of a
guarantee provided by BCI on behalf
of client Istat
-------------------------- ------------------ --------------- --------------- ---------------------------------------
Italy Plan Design ITL 5,893,750 Guarantee in favour of Italian
Finance Ministry
-------------------------- ------------------ --------------- --------------- ---------------------------------------
Italy Xxx Xxxxx WW ITL 104,055,000 Guarantee in favour of Italian
Finance Ministry
-------------------------- ------------------ --------------- --------------- ---------------------------------------
Italy Xxxxx Italia ITL 5,000,000 Indemnities provided in respect of a
guarantee provided by BCI on behalf
of Italian Police Department
-------------------------- ------------------ --------------- --------------- ---------------------------------------
Italy Xxxxx Italia ITL 57,605,000 Indemnities provided in respect of a
guarantee provided by BCI on behalf
of Poste Italiane
-------------------------- ------------------ --------------- --------------- ---------------------------------------
Malaysia Xxxxx Malaysia MYR 5,000,000 Indemnities provided in respect of
guarantees issued under guarantee
facility provided by HSBC (50%
guaranteed by plc)
-------------------------- ------------------ --------------- --------------- ---------------------------------------
Netherlands Xxxxx Not Just NLG 236,300 Guarantee given by the company for
Film rent
-------------------------- ------------------ --------------- --------------- ---------------------------------------
147
Norway Xxxxx Gruppen AS NOK 7,800,000 Indemnities provided in respect of
Bank guarantees provided by
Sparbanken in favour of landlords for
office rents
-------------------------- ------------------ --------------- --------------- ---------------------------------------
Spain Delvico Xxxxx ESP 100,000,000 Indemnities provided in respect of
guarantees issued under a guarantee
facility provided by Banco Santander
-------------------------- ------------------ --------------- --------------- ---------------------------------------
Sweden Xxxxx Sweden SEK 1,144,000 Indemnities provided in respect of a
guarantee provided by
Provinsbanken/Osgota Enskilda Banken
for rent (secured by a charge on
assets)
-------------------------- ------------------ --------------- --------------- ---------------------------------------
Taiwan Xxxxx Taiwan NTD 10,000,000 Indemnities provided in respect of a
factory loan provided by Chailease
Finance Co
-------------------------- ------------------ --------------- --------------- ---------------------------------------
UK Xxxxx Overseas PTE 30,000,000 Guarantee provided by BOH for the
Holdings Banco Xxxxx & Acores bank facility
for Xxxxx Portugal JV
-------------------------- ------------------ --------------- --------------- ---------------------------------------
UK CCG Plc USD Lease Guarantee given to landlord of Xxxxxx
obligations Street (with Saatchi)
and over costs
-------------------------- ------------------ --------------- --------------- ---------------------------------------
UK CCG Plc GBP Lease Guarantee given to landlord of
obligations Berkeley Square (with Saatchi)
and over costs
-------------------------- ------------------ --------------- --------------- ---------------------------------------
UK CCG Plc GBP Lease Guarantee given to landlord of Xxxxx
obligations Road (with Saatchi)
and over costs
-------------------------- ------------------ --------------- --------------- ---------------------------------------
UK/US CCG Plc USD Lease Guarantee given to landlord of Xxxxx
obligations premises at 000 Xxxxxxx Xxxxxx
and over costs
-------------------------- ------------------ --------------- --------------- ---------------------------------------
UK CCG Plc ZAR Run-off Guarantee given by plc to XX Xxxxxxx
liabilities Company (Prop) Ltd
if any
-------------------------- ------------------ --------------- --------------- ---------------------------------------
UK CCG Plc GBP Variable forward FX contracts
-------------------------- ------------------ --------------- --------------- ---------------------------------------
UK CCG Plc JPY 700,000,000 Guarantee given by plc in respect of
Xxxxx Japan
-------------------------- ------------------ --------------- --------------- ---------------------------------------
UK CCG Plc USD 2,000,000 Guarantee given to Chase Manhattan
Bank
-------------------------- ------------------ --------------- --------------- ---------------------------------------
USA Xxxxx US USD Guarantee given by Cordiant Compton
Holdings Inc WW to Nlederhoffer, Cross & Zeckhauser
-------------------------- ------------------ --------------- --------------- ---------------------------------------
USA Xxxxx US USD Guarantee given by Cordiant Compton
Holdings Inc WW to Xxxxxxxxx, Xxxxxx & Xxxxxxxxx
-------------------------- ------------------ --------------- --------------- ---------------------------------------
USA Xxxxx US USD 10,000,000 Guarantee given by Cordiant Crompton
Holdings Inc WW to KCIN re lease
========================== ================== =============== =============== =======================================
148
Schedule 1
Borrower's Compliance Certificate
Form of Compliance Certificate
to be issued by the Authorised Officer
HSBC Investment Bank plc
Vintners Place
00 Xxxxx Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Attention: Syndicated Finance - Execution and Agency
[Date]
Dear Sirs
Cordiant Communications Group plc Loan Agreement dated o 1999 for Credit
Facilities of up to US$400,000,000 (the "Agreement")
We refer to the Agreement and deliver this Compliance Certificate in respect of
the Fiscal Half-Year ended o pursuant to clause 12.1(g) thereof. Terms defined
in the Agreement shall have the same meaning when used in this Compliance
Certificate. We attach a calculation of all the relevant items referred to in
paragraphs 1 to 4 below.
We confirm:
1 PBIT in respect of the 12 months ended on o was o.
2 Consolidated Net Interest Expenditure in respect of the 12 months
ended on o was o.
3 Consolidated Gross Borrowings (calculated on the basis of the average
daily outstandings during the Fiscal Half-Year ended on o) was o.
4 Adjusted PBIT in respect of the 12 months ended on o was o.
Based on the above, we certify that, calculated on the basis set out in clause
13 of the Agreement:
(a) On o the ratio of PBIT to Consolidated Net Interest Expenditure was o.
(b) On o the ratio of Consolidated Gross Borrowings to Adjusted PBIT was
o.
Accordingly, we confirm that the Parent was in compliance with the undertakings
set out in clause 13.1 on o and in respect of the Fiscal Half-Year ended on such
date.
We confirm that no Default has occurred and is continuing which is unremedied
and unwaived [other than where full details have previously been provided to
you].
For and on behalf of
Cordiant Communications Group plc
.......................
Authorised Officer
150
Schedule 2
Form of Guarantee to be given by new Guarantors
DATED
-----
GUARANTEE
given by
o
Xxxxxx Xxxx
London
151
THIS GUARANTEE is dated o and made BETWEEN:
(1) o as Guarantor; and
(2) HSBC INVESTMENT BANK PLC as Security Trustee, for the benefit of itself
and each of the Beneficiaries as defined below.
WHEREAS:
(A) By an agreement (as from time to time amended, varied, extended,
restated or replaced, the "Agreement") dated 4 July 2000 and made between
Cordiant Communications Group plc as Parent (the "Parent") (1), the
companies whose names and registered offices are set out in part A or part
C of schedule 1 thereto (2), The Bank of New York and HSBC Bank plc as
Arrangers (3), the banks and financial institutions whose names and
addresses are set out in schedule 2 thereto (4), HSBC Investment Bank plc
as Agent and Security Trustee (5), The Bank of New York as Swingline Bank
(6) and HSBC Bank plc as Overdraft Bank (7) the Banks have agreed to make
available to the Borrowers a revolving credit facility of up to
$225,000,000, the Swingline Bank has agreed to make available to the
Swingline Borrower a swingline facility of up to $18,000,000, the Overdraft
Bank has agreed to make available to the Overdraft Borrowers an overdraft
facility of up to L6,000,000 and the Banks have agreed to make available to
the Borrowers a further revolving credit facility of up to $175,000,000.
(B) The Parent has undertaken to procure that certain Subsidiaries enter
into guarantees as security for the obligations contained in the Agreement.
IT IS AGREED as follows:
51 Interpretation
51.1 Defined expressions
In this Guarantee, unless the context otherwise requires or unless
otherwise defined in this Guarantee, words and expressions defined in the
Agreement shall have the same meaning where used in this Guarantee. In
addition clause 1.4 of the Agreement shall be deemed to be incorporated in
full in this Guarantee on the basis that references in such clause 1.4 to
"this Agreement" were references to this Guarantee.
51.2 Successors and assigns
The expressions "Agent", "Arrangers", "Banks", "Beneficiaries",
"Borrowers", "Company", "Finance Party", "Overdraft Bank", "Security
Provider", "Security Trustee" and "Swingline Bank" include, where the
context admits, their respective successors, in the case of the Banks their
respective permitted transferees and assignees, whether immediate or
derivative, in the case of the Security Trustee, such other person as may
from time to time be appointed as security trustee for the Beneficiaries
pursuant to the provisions of the Security Trust Deed and, in the case of
the Agent, such other persons as may be appointed as Agent pursuant to the
provisions of the Agreement.
152
51.3 Definitions
In this Guarantee, unless the context otherwise requires:
"Beneficiaries" has the meaning given to the term in the Security Trust
Deed;
"Collateral Instruments" means negotiable and non-negotiable instruments,
guarantees and any other documents or instruments which contain or evidence
an obligation (with or without security) to pay, discharge or be
responsible directly or indirectly for, any liabilities of any person and
includes any document or instrument creating or evidencing an Encumbrance;
"Guarantee" includes each separate or independent stipulation or agreement
by the Guarantor contained in this Guarantee;
"Guaranteed Liabilities" means all moneys, obligations and liabilities
expressed to be guaranteed by the Guarantor in clause 2.1; and
"Incapacity" means in relation to a person the insolvency, liquidation,
dissolution, winding-up, administration, receivership, amalgamation,
reconstruction or other incapacity of that person whatsoever (and, in the
case of a partnership, includes the termination or change in the
composition of the partnership).
51.4 Headings
Clause headings are inserted for convenience of reference only and shall be
ignored in the interpretation of this Guarantee.
52 Guarantee
52.1 Guarantee
The Guarantor hereby irrevocably and unconditionally guarantees that it
will on demand made on it by the Security Trustee pay to the Security
Trustee for the account of the relevant Beneficiaries all moneys and
discharge all obligations and liabilities whether actual or contingent now
or hereafter due, owing or incurred to the Agent, the Arrangers, the
Security Trustee, the Banks, the Swingline Bank, or the Overdraft Bank (or
any of them) by the Borrowers (or any of them) under or pursuant to the
Agreement and/or this Guarantee and/or the Security Trust Deed and/or any
of the other Security Documents, in each case when the same become due for
payment or discharge whether by acceleration or otherwise, and whether such
moneys, obligations and liabilities are express or implied; present, future
or contingent; joint or several; incurred as principal or surety;
denominated in Dollars, Sterling or in any other currency together with
commission, fees and other charges and all legal and other costs charges
and expenses on a full indemnity basis which may be properly incurred by
the Beneficiaries or any of them in relation to any such moneys,
obligations or liabilities or generally in respect of such Guarantor.
154
52.2 Guarantor as principal debtor; indemnity
As a separate and independent stipulation, the Guarantor irrevocably and
unconditionally agrees that if any purported obligation or liability of any
Borrower which would have been the subject of this Guarantee had it been
valid and enforceable is not or ceases to be valid or enforceable against
such Borrower on any ground whatsoever whether or not known to the
Beneficiaries or any of them (including, without limitation, any irregular
exercise or absence of any corporate power or lack of authority of, or
breach of duty by, any person purporting to act on behalf of such Borrower
or any legal or other limitation, whether under the Limitation Acts or
otherwise or any disability or Incapacity or any change in the constitution
of such Borrower) the Guarantor shall nevertheless be liable in respect of
that purported obligation or liability as if the same were fully valid and
enforceable and the Guarantor were the principal debtor in respect thereof.
The Guarantor hereby irrevocably and unconditionally agrees to indemnify
and keep indemnified the Beneficiaries against any loss or liability
arising from any failure of any Borrower to perform or discharge any such
purported obligation or liability or from any invalidity or
unenforceability of any of the same against such Borrower.
52.3 Statements of account conclusive
Any statement of account of the Borrowers in reasonable detail, signed as
correct by an officer of the Security Trustee, showing the amount of the
Guaranteed Liabilities shall, in the absence of manifest error, be prima
facie evidence thereof.
52.4 Interest
The Guarantor agrees to pay interest on each amount demanded of it under
this Guarantee from the date of such demand until payment (as well after as
before judgment) at the rate specified in clause 5.5 of the Agreement which
shall apply to this Guarantee mutatis mutandis.
52.5 Continuing guarantee
This Guarantee shall extend to the ultimate balance from time to time owing
to the Beneficiaries by the Borrowers and shall be a continuing guarantee,
notwithstanding any intermediate payment, partial settlement or other
matter whatsoever.
52.6 Liability unconditional
The liability of the Guarantor shall not be affected nor shall this
Guarantee be discharged or reduced by reason of:
(a) the Incapacity or any change in the name, style or constitution of
any Borrower or any other person liable;
(b) any of the Beneficiaries granting any time, indulgence or
concession to, or compounding with, discharging, releasing or varying
the liability of, any Borrower or any other person liable; or
154
(c) any amendment, variation or waiver (however material or
fundamental) of the Agreement or any Security Document; or
(d) any act or omission which would not have discharged or affected
the liability of the Guarantor had it been a principal debtor instead
of a guarantor or by anything done or omitted which but for this
provision might operate to exonerate the Guarantor.
52.7 Collateral Instruments
Neither the Security Trustee nor any other Beneficiary shall be obliged to
make any claim or demand on the Borrowers or to resort to any Collateral
Instrument or other means of payment before enforcing this Guarantee and no
action taken or omitted in connection with any such Collateral Instrument
or other means of payment shall discharge, reduce, prejudice or affect the
liability of the Guarantor under this Guarantee.
52.8 Waiver of Guarantor's rights
Until all the Guaranteed Liabilities have been paid, discharged or
satisfied in full (and notwithstanding payment of a dividend in any
liquidation or under any compromise or arrangement) the Guarantor agrees
that it will not in connection with the Guaranteed Liabilities (without the
prior written consent of the Security Trustee or other than as permitted
under the terms of the Agreement):
(a) exercise any rights of subrogation, contribution or indemnity against
the Borrowers or any other person liable;
(b) demand or accept any Encumbrance to be granted in respect of any of
its obligations under this Guarantee or any other Indebtedness now or
hereafter due to the Guarantor from the Borrowers or from any other
person liable;
(c) take any step to enforce any right against the Borrowers or any other
person liable in respect of any Guaranteed Liabilities; or
(d) exercise any right of set-off or counterclaim against the Borrowers or
any other person liable or claim or prove or vote as a creditor in
competition with the Beneficiaries in the liquidation, administration
or other insolvency proceeding of any Borrower or any other person
liable or have the benefit of, or share in, any payment from or
composition with, any Borrower or any other person liable or any
Collateral Instrument now or hereafter held by the Beneficiaries for
any Guaranteed Liabilities or for the obligations or liabilities of
any other person liable.
52.9 Suspense accounts
All monies received by the Security Trustee shall be applied in or towards
satisfaction of such of the Guaranteed Liabilities in accordance with the
terms of the Security Trust Deed except that the Security Trustee may
credit the same to a suspense account for so long and in such manner as the
Security Trustee may from time to time determine.
155
52.10 Guarantor to deliver up certain property
If, contrary to clause 2.8, the Guarantor takes or receives the benefit of
any Encumbrance, other than a Permitted Encumbrance or other than as
permitted under the terms of the Agreement, or receives or recovers any
money or other property, such Encumbrance, money or other property shall be
held on trust for the Beneficiaries and shall be delivered to the Security
Trustee on written demand for application in accordance with the terms of
the Security Trust Deed.
52.11 Other guarantors
The Guarantor agrees:
(a) to be bound by this Guarantee notwithstanding that any other person
intended to execute or to be bound by any other guarantee or assurance
under or pursuant to the Agreement may not do so or may not be
effectively bound and notwithstanding that such other guarantee or
assurance may be determined to be or be or become invalid or
unenforceable against any other person, whether or not the deficiency
is known to the Beneficiaries or any of them; and
(b) that its obligations under this Guarantee will not be affected in any
way by any Subsidiary of the Parent becoming a Guarantor after the
date of this Guarantee.
53 Payments and Taxes
53.1 No set-off or counterclaim; distribution to the Banks
All payments to be made by the Guarantor under this Guarantee shall be made
in full, without any set-off or counterclaim whatsoever and, subject as
provided in clause 3.2, free and clear of any deductions or withholdings,
in Dollars, Sterling or the relevant Optional Currency (except for costs,
charges and expenses which shall be payable in the currency in which they
are incurred) on demand by the Security Trustee to the account of the
Security Trustee at such bank as the Security Trustee may from time to time
specify for this purpose. Save where the Agreement or the relevant Security
Document specifically provides for a payment to be made for the account of
a particular Beneficiary in which case the Security Trustee shall
distribute the relevant payment to the Beneficiary concerned, payments to
be made by the Guarantor under this Guarantee shall be for the account of
all the Beneficiaries and the Security Trustee shall forthwith distribute
such payments in like funds as are received by the Security Trustee to the
Beneficiaries in accordance with the provisions of the Security Trust Deed.
53.2 Grossing-up for Taxes and other matters
Clauses 10.5, 10.6, 10.7, 10.8, 10.9, 10.10, 10.11, 10.12, 10.13 and 10.14
of the Agreement shall apply as if the same were set out in full in this
Guarantee, mutatis mutandis.
53.3 Currency of account; Currency indemnity
156
Clause 15.2 of the Agreement shall apply as if it were set out in full in
this Guarantee, mutatis mutandis.
54 Representations and warranties
54.1 Representations and warranties
The Guarantor represents and warrants to the Security Trustee (for the
benefit of each of the Beneficiaries) that:
(a) Due incorporation: it is duly established or incorporated [(and [in
the case of a corporation incorporated in the United States], validly
existing and in good standing)] under the laws of o as a limited
liability company and has power to carry on its business as it is now
being conducted and to own its property and other assets;
(b) Corporate power to guarantee: it has power to execute, deliver and
perform its obligations under this Guarantee; all necessary corporate,
shareholder and other action has been taken to authorise the
execution, delivery and performance of the same and no limitation on
its power to guarantee will be exceeded as a result of entering into
this Guarantee;
(c) Binding obligations: this Guarantee constitutes valid and legally
binding obligations of the Guarantor save as disclosed in the
qualifications to the legal opinions delivered under part C of
schedule 4 of the Agreement;
(d) No filings required: any notarisation, filing, recording, registration
or enrolment in any court, public office or elsewhere and any stamp,
registration or similar tax or charge payable on or in relation to
this Guarantee necessary to ensure the legality, validity,
enforceability or admissibility in evidence of this Guarantee has been
made or paid and this Guarantee is in proper form for its enforcement
in the courts of England and o [relevant exceptions to be noted]; and
(e) Choice of law: the choice by the Guarantor of English law to govern
this Guarantee [and the submission by the Guarantor to the
non-exclusive jurisdiction of the High Court of Justice in England] is
[are] valid and binding save as disclosed in the legal opinions
provided under part C of schedule 4 of the Agreement.
54.2 Repetition
The representations and warranties in clause 4.1 shall be deemed to be
repeated by the Guarantor on and as of each Drawdown Date and each
Repayment Date as if made with reference to the facts and circumstances
existing on each such day.
157
55 Set-off and Pro rata Payments
55.1 Set-off
The Guarantor authorises each Beneficiary to apply any credit balance to
which the Guarantor is then entitled on any account of the Guarantor with
such Beneficiary at any of its branches in or towards satisfaction of any
sum then due and payable from the Guarantor to such Beneficiary under this
Guarantee. For this purpose each Beneficiary is authorised to purchase with
the moneys standing to the credit of such account such other currencies as
may be necessary to effect such application. No Beneficiary shall be
obliged to exercise any right given to it by this clause 5.1. Each
Beneficiary shall notify the Security Trustee and the Guarantor forthwith
upon the exercise or purported exercise of any right of set-off giving full
details in relation thereto and the Security Trustee shall inform the other
Beneficiaries.
55.2 Pro rata payments
The Guarantor acknowledges and accepts the provisions of clause 17.2 of the
Agreement.
56 Benefit of this Guarantee
56.1 Benefit and burden
This Guarantee shall be binding upon the Guarantor and its successors in
title and shall enure for the benefit of the Security Trustee, for the
benefit of itself and each of the other Beneficiaries and their respective
successors in title and (in the case of the Banks) their Substitutes. The
Guarantor expressly acknowledges and accepts the provisions of clause 18 of
the Agreement and agrees that any Substitute which becomes party to the
Agreement in accordance with clause 18 of the Agreement shall be entitled
to the benefit of this Guarantee.
56.2 Changes in constitution or reorganisations of Banks
For the avoidance of doubt and without prejudice to the provisions of
clause 6.1, this Guarantee shall remain binding on the Guarantor
notwithstanding any change in the constitution of the Beneficiaries or any
of them or their or its absorption in, or amalgamation with, or the
acquisition of all or part of their or its undertaking or assets by, any
other person, or any reconstruction or reorganisation of any kind, to the
intent that this Guarantee shall remain valid and effective in all respects
in favour of any assignee, transferee or other successor in title of the
Beneficiaries in the same manner as if such assignee, transferee or other
successor in title had been named in this Guarantee as a party instead of,
or in addition to, the relevant Beneficiary.
56.3 No assignment by Guarantor
The Guarantor may not assign or transfer any of its rights or obligations
under this Guarantee.
158
56.4 Disclosure of information
Any Beneficiary may disclose to a prospective assignee or transferee or to
any other person who may propose entering into contractual relations with
such Beneficiary in relation to the Agreement such information about the
Guarantor as such Beneficiary shall consider appropriate provided that such
Beneficiary will obtain an undertaking from such assignee or transferee to
keep such information confidential and only disclose it as required by law.
57 The Security Trust Deed
57.1 Trust:
The Guarantor and the Security Trustee hereby acknowledge that the
covenants of the Guarantor contained in this Guarantee and the security and
other rights, title and interests constituted by this Guarantee and all
other moneys, property and assets paid to the Security Trustee pursuant to
or in connection with this Guarantee are held by the Security Trustee
subject to and on the terms of the trusts declared in the Security Trust
Deed.
58 Release of security
58.1 Release of guarantee
If the Security Trustee is satisfied:
(i that:
(A) no Default has occurred; and
(B) the proposed release is to permit a disposal of the
Guarantor, and such disposal is not prohibited by the terms of the
Agreement; or
(ii) that all the Guaranteed Liabilities have been paid or discharged
in full and the Facilities provided by the Agreement are no longer
available,
then, subject to clause 8.2, the Security Trustee shall at the request and
cost of the Guarantor execute such deeds and do all such acts and things as
may be necessary to release the Guarantor from its guarantee.
58.2 Retention of Deed
If the Guarantor requests the Security Trustee to release its guarantee
following any payment or discharge made or security or guarantee given in
relation to the Guaranteed Liabilities by the Guarantor or any other person
liable (a "Relevant Transaction"), the Security Trustee shall be entitled,
if it is satisfied (acting reasonably) that the Guarantor or such other
person (as relevant) is (or is as a consequence of that Relevant
Transaction) Insolvent, to retain this Deed and shall not
159
be obliged to release the Guarantor from its guarantee until the expiry of
the Retention Period (as hereinafter defined) in relation to that Relevant
Transaction (as hereinafter defined). If at any time before the expiry of
that Retention Period any event takes place in relation to the Guarantor or
such other person which corresponds to any of the events set out in clauses
14.1(j) to 14.1(n) of the Agreement, the Security Trustee may continue to
retain this Deed and shall not be obliged to release the guarantee for such
further period as the Security Trustee may determine.
For the purpose of clause 8.2:
"Retention Period" means, in relation to any Relevant Transaction, the
period which commences on the date when that Relevant Transaction was made
or given, and which ends on the date falling one week after the expiration
of the maximum period within which that Relevant Transaction can be
avoided, reduced or invalidated by virtue of any applicable law or for any
other reason whatsoever) and;
"Insolvent" means that the company (i) is deemed unable to pay its debts in
accordance with section 123(1)(e) or (2) of the Insolvency Xxx 0000 (as
that section may be amended by order under section 416 of the Insolvency
Xxx 0000 or otherwise and so that in sub-section (1)(e) and sub-section (2)
of section 123 the words "it is proved to the satisfaction of the court
that" shall be deemed to be deleted) or (ii) becomes, or admits to being,
unable generally to pay its debts as they fall due or (iii) otherwise
becomes insolvent or stops or suspends making payments (whether of
principal or interest) with respect to all or any class of its debts or
announces an intention to do so or (iv) there occurs, in relation to that
company in any country or territory in which it carries on business or to
the jurisdiction of whose courts any part of its assets is subject, any
event which, in the opinion of the Security Trustee, (acting reasonably)
has an effect equivalent to any of (i), (ii) or (iii) above.
59 Notices and other matters
59.1 Notice
Every notice, request, demand or other communication under this Guarantee
shall:
(a) be in writing delivered personally or by first-class prepaid letter
(airmail if available) or telefax;
(b) be deemed to have been received, subject as otherwise provided in this
Guarantee, in the case of a letter when delivered and, in the case of
a telefax, when a complete and legible copy is received by the
addressee (unless the date of despatch is not a business day in the
country of the addressee or if the time of despatch of any telefax is
after the close of business in the country of the addressee in which
case it shall be deemed to have been received at the opening of
business on the next such business day); and
(c) be sent:
(i) to the Guarantor at:
160
o
o
Telefax: o
Attention: o
(ii) to the Security Trustee at:
HSBC Investment Bank plc
Vintners Place
00 Xxxxx Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Telefax: 020 7336 9176
Attention: Syndicated Finance - Execution and Agency
or to such other address or telefax number as is notified by the
Guarantor or the Security Trustee to the other party to this
Guarantee.
59.2 No implied waivers, remedies cumulative
No failure or delay on the part of the Beneficiaries or any of them to
exercise any power, right or remedy under this Guarantee shall operate as a
waiver thereof, nor shall any single or partial exercise by the
Beneficiaries or any of them of any power, right or remedy preclude any
other or further exercise thereof or the exercise of any other power, right
or remedy. The remedies provided in this Guarantee are cumulative and are
not exclusive of any remedies provided by law.
59.3 Expenses
The Guarantor agrees to reimburse the Security Trustee on demand for all
legal and other costs, charges and expenses on a full and unqualified
indemnity basis which may be properly incurred by the Beneficiaries in
relation to the enforcement of this Guarantee against the Guarantor.
59.4 Authority given to Parent
The Guarantor hereby irrevocably authorises the Parent to execute any duly
executed Borrower Accession Agreement on its behalf.
59.5 Counterparts
This Deed may be executed in any number of counterparts and by the
different parties on separate counterparts, each of which when so executed
and delivered shall be an original, but all counterparts shall together
constitute one and the same instrument.
60 Governing Law and Jurisdiction
60.1 Law
This Guarantee shall be governed by English law.
161
60.2 [Submission to jurisdiction
The parties to this Guarantee agree for the benefit of the Beneficiaries
that:
(a) if any party has any claim against any other arising out of or in
connection with this Guarantee such claim shall (subject to clause c)
be referred to the High Court of Justice in England, to the
jurisdiction of which each of the parties irrevocably submits;
(b) the jurisdiction of the High Court of Justice in England over any such
claim against any Beneficiary shall be an exclusive jurisdiction and
no courts outside England shall have jurisdiction to hear or determine
any such claim; and
(c) nothing in this clause 10.2 shall limit the right of any Beneficiary
to refer any such claim against the Guarantor to any other court of
competent jurisdiction outside England, to the jurisdiction of which
the Guarantor hereby irrevocably agrees to submit, nor shall the
taking of proceedings by any Beneficiary before the courts in one or
more jurisdictions preclude the taking of proceedings in any other
jurisdiction whether concurrently or not.]
60.3 [Agent for service of process
The Guarantor irrevocably and unconditionally, designates, appoints and
empowers the Parent to receive for it and on its behalf service of process
issued out of the High Court of Justice in England in relation to any claim
arising out of or in connection with this Guarantee.]
IN WITNESS whereof the parties to this Guarantee have caused this Guarantee to
be duly executed on the date first above written.
THE GUARANTORS
EXECUTED and DELIVERED ) Director
as a DEED by o ) Director/Secretary
THE SECURITY TRUSTEE
Signed for and on behalf of)
HSBC INVESTMENT BANK PLC )
By: )
162
Schedule 1
Permitted Acquisitions
Schedule 2 The Lighthouse Acquisition
Schedule 3 The acquisitions listed below provided that the total acquisition
consideration payable by the Group in respect of such acquisition
(including for these purposes any deferred consideration) does
not exceed the maximum consideration for such acquisition
contained in the acquisition agreement as at the date of this
Agreement relating to the acquisition concerned.
Company Country Basis of acquisition payment
Harrow/Expanded Media Australia Earnout
Not Just Film Holland Holland Put/call option
Gestro Home New Zealand Put option
Kontoret Norway Put/call option
Idea Azione Germany Earnout
Criterion USA Earnout
Argentina Argentina Earnout
Grapple Group South Africa Earnout
Xxxxxxxxx USA Earnout
New Comm. Comm Brazil Earnout
Rodergas Spain Contractual purchase of shares
PanGulf Dubai Contractual purchase of shares
Cronet Sweden Earnout
LdV Belgium Put/call option
Blue Skies UK Earnout
Xxxxx India India Contractual purchase of shares
Romania Romania Put/call option
Camarote Spain Earnout
HFT Group (80%) Earnout
(20%) Buyout of Minority
163
CPA Espana, S.L. Spain Contractual Purchase of Shares
Colwood House Medical UK Contractual Purchase of Shares
Publications (UK) Limited
164
Schedule 1
Preference shares issued by (or to be issued) by Lighthouse and its Subsidiaries
as deferred consideration
Jurisdiction Entity or Date Maximum Deferred End Date (on or
business Deferred Consideration before)
acquired Consideration
(approximate
figure)
USA Xxxxxxxxx 28.10.1999 $4,500,000 6% convertible 3 yrs or 5 yrs
preferred stock of from closing
Lighthouse
USA Interiors for 29.11.1999 $4,000,000 6% convertible 3 yrs or 5yrs
Architecture/ preferred stock of from closing
Associates in Lighthouse
Architecture
and Design
USA Avid 06.01.2000 $2,000,000 6% convertible 31.12.2002
Productions preferred stock of and
Lighthouse 31.12.2004
UK C&FD 06.11.2000 L 585,000 5,850 redeemable 31.12.2004
preference shares in
Lighthouse Holdings
UK Limited - can be
exchanged for 6%
convertible preferred
stock of Lighthouse
USA MorgenWalke 12.01.2000 $5,250,000 6% convertible 31.12.2002 and
preferred stock of 31.12. 2002
Lighthouse
USA Ideascope 07.02.2000 $3,500,000 6% convertible 3 yrs after
preferred stock of closing
Lighthouse
UK Clarion 10.03.2000 L339,000 plus 9,870 preference 31.12.2002
L987,000 to be shares in Lighthouse
satisfied by Holdings UK Limited -
issue of 9870 can be exchanged into
preference 6% convertible
shares preferred stock of
Lighthouse
USA Wang 02.03.2000 $100,000 6% convertible 31.12.2002
preferred stock of
Lighthouse
USA Fantastic 04.03.1999 $1,675,000 6% convertible 04.03.2004
Sports plus interest preferred stock of
Lighthouse
165
USA Xxxxx Xxxxxx 25.06.1999 $3,150,000 6% convertible 01.07.2004
plus interest preferred stock of
and dividends Lighthouse
UK Connect One 21.05.1999 L3,165,000 plus (a) 40,000 shares of 31.12.2001
plc value of 40,000 Class B Common Stock
shares of Class (b) 6% convertible
B Common Stock preferred stock of
Lighthouse
USA Sports Pro 06.07.1999 $700,000 6% convertible 31.12.2001
Hawaii preferred stock of
Lighthouse
USA Davidson 07.07.1999 $3,000,000 6% convertible 31.05.2003
preferred stock of
Lighthouse
UK Financial 23.07.1999 L 11,200,000 6% convertible 31.12.2002
Dynamics preferred stock of
Lighthouse
166
THE PARENT
SIGNED for and on behalf of ) Xxxxxx Xxxxxxxx
CORDIANT COMMUNICATIONS )
GROUP PLC )
by: ) Xxxxxx Xxxxxx
THE ORIGINAL BORROWERS
SIGNED for and on behalf of ) Xxxxxx Xxxxxxxx
CORDIANT COMMUNICATIONS )
GROUP PLC )
by: ) Xxxxxx Xxxxxx
SIGNED for and on behalf of ) Xxxxxx Xxxxxxxx
XXXXX UK LIMITED )
by: ) Xxxxxx Xxxxxx
SIGNED for and on behalf of ) Xxxxxx Xxxxxxxx
XXXXX US HOLDINGS INC. )
by: ) Xxxxxx Xxxxxx
SIGNED for and on behalf of ) Xxxxxx Xxxxxxxx
XXXXX DEUTSCHLAND )
HOLDINGS GMBH )
by: ) Xxxxxx Xxxxxx
THE ORIGINAL OVERDRAFT BORROWERS
SIGNED for and on behalf of ) Xxxxxx Xxxxxxxx
ATLAS ADVERTISING LIMITED )
by: ) Xxxxxx Xxxxxx
SIGNED for and on behalf of ) Xxxxxx Xxxxxxxx
XXXXX EUROPE LIMITED )
by: ) Xxxxxx Xxxxxx
SIGNED for and on behalf of ) Xxxxxx Xxxxxxxx
XXXXX OVERSEAS HOLDINGS )
LIMITED by: ) Xxxxxx Xxxxxx
167
SIGNED for and on behalf of ) Xxxxxx Xxxxxxxx
XXXXX UK LIMITED )
by: ) Xxxxxx Xxxxxx
SIGNED for and on behalf of ) Xxxxxx Xxxxxxxx
CORDIANT COMMUNICATIONS )
GROUP PLC )
by: ) Xxxxxx Xxxxxx
SIGNED for and on behalf of ) Xxxxxx Xxxxxxxx
CORDIANT GROUP LIMITED )
by: ) Xxxxxx Xxxxxx
SIGNED for and on behalf of ) Xxxxxx Xxxxxxxx
CORDIANT PROPERTY HOLDINGS )
LIMITED by: ) Xxxxxx Xxxxxx
SIGNED for and on behalf of ) Xxxxxx Xxxxxxxx
ICM INTERNATIONAL LIMITED )
by: ) Xxxxxx Xxxxxx
SIGNED for and on behalf of ) Xxxxxx Xxxxxxxx
SWOT PLUS LIMITED )
by: ) Xxxxxx Xxxxxx
SIGNED for and on behalf of ) Xxxxxx Xxxxxxxx
THE DECISION SHOP LIMITED )
LIMITED by: ) Xxxxxx Xxxxxx
SIGNED for and on behalf of ) Xxxxxx Xxxxxxxx
XMSS LIMITED )
by: ) Xxxxxx Xxxxxx
THE SWINGLINE BORROWER
SIGNED for and on behalf of ) Xxxxxx Xxxxxxxx
XXXXX US HOLDINGS INC. )
by: ) Xxxxxx Xxxxxx
168
THE ARRANGERS
SIGNED for and on behalf of ) Xxxxxx Xxxxxx
THE BANK OF NEW YORK )
by: )
SIGNED for and on behalf of ) Xxxx Xxxxxxx
HSBC INVESTMENT BANK PLC )
by: )
THE BANKS
SIGNED for and on behalf of ) Xxxxxx Xxxxxx
THE BANK OF NEW YORK )
by: )
SIGNED for and on behalf of ) Xxxx Xxx
HSBC BANK PLC )
by: )
THE AGENT AND SECURITY TRUSTEE
SIGNED for and on behalf of ) Xxxx Xxxxxxx
HSBC INVESTMENT BANK PLC )
by: )
THE SWINGLINE BANK
SIGNED for and on behalf of ) Xxxxxx Xxxxxx
THE BANK OF NEW YORK )
by: )
THE OVERDRAFT BANK
SIGNED for and on behalf of ) Xxxx Xxx
HSBC BANK PLC )
by: )
169
