1
CONFORMED COPY
Dated 15th December, 1998
EMAP PLC
AS BORROWER
THE LENDERS LISTED IN SCHEDULE 1
BARCLAYS CAPITAL
DEN DANSKE BANK AKTIESELSKAB
DEUTSCHE BANK AG LONDON
AS ARRANGERS
BARCLAYS BANK PLC
AS AGENT
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LOAN AGREEMENT
pound sterling 360,000,000 BRIDGING Loan Facility
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For EMAP PLC For the LENDERS
XXXXXXXXX AND MAY Xxxxx & Overy
00 XXXXXXXXXX XXXXXX One New Change
LONDON EC2V 5DB Xxxxxx XX0X 0XX
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CONTENTS
CLAUSE PAGE
1. INTERPRETATION 1
2. THE FACILITY 11
3. THE LENDERS 12
4. REIMBURSEMENT OF INITIAL EXPENSES 12
5. AUTOMATIC CANCELLATION 13
6. ADVANCE OF FUNDS 13
7. INTEREST ON ADVANCES 14
8. REPAYMENT OF ADVANCES 15
9. MARKET DISRUPTION AND ALTERNATIVE INTEREST RATES 15
10. CHANGES OF CIRCUMSTANCES 17
11. PAYMENTS 20
12. LATE PAYMENT 22
13. SHARING AMONG LENDERS 23
14. REPRESENTATIONS 24
15. INFORMATION COVENANTS 26
16. GENERAL COVENANTS 26
17. EVENTS OF XXXXXXX 00
00. EVIDENCE AND CERTIFICATES 31
19. NOTICES 32
20. ASSIGNMENT 33
21. WAIVERS AND AMENDMENTS 34
22. THE AGENT, THE ARRANGERS AND THE LENDERS 35
23. MISCELLANEOUS 39
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24. LAW 40
SCHEDULE 1 LENDERS AND COMMITMENTS 42
SCHEDULE 2 CONDITIONS PRECEDENT 43
SCHEDULE 3 FORM OF ADVANCE REQUEST 45
SCHEDULE 4 COSTS RATE 47
SCHEDULE 5 FORM OF LEGAL OPINION FROM LENDERS' ADVISER 49
SIGNATURES 52
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THIS AGREEMENT is made the 15th day of December, 1998
BETWEEN:
1. EMAP PLC, a company incorporated in England (number 43580), of 0 Xxxxxxx
Xxxxx, Xxxxxxx Xxxx, Xxxxxxxxxxxx XX0 0XX as borrower;
2. THE LENDERS listed in Schedule 1, as lenders;
3. BARCLAYS BANK PLC, as agent; and
4. BARCLAYS CAPITAL, DEN DANSKE BANK AKTIESELSKAB and DEUTSCHE BANK AG LONDON,
as arrangers.
BACKGROUND
At the request of the Borrower, the Lenders are willing to provide a bridging
loan facility of up to pound sterling 360,000,000 to the Borrower on the terms
of this Agreement.
The parties agree as follows:
1. INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"ADVANCE" means the advance made, or to be made, under Clause 6.
"ADVANCE DATE" means the date, or proposed date, of the Advance.
"ADVANCE REQUEST" means a request signed by one Authorised Signatory of
the Borrower for the Advance, substantially in the form set out in
Schedule 3.
"AFFILIATE", in relation to any person, means a Subsidiary of that
person, a Holding Company of that person or another Subsidiary of that
Holding Company.
"AGENT" means Barclays Bank PLC in its capacity as agent for the
Lenders, acting through its office at 5 Xxx Xxxxx Xxxxxxxxx, Xxxxxx
Xxxxx, Xxxxxx X00 0XX or any other office which it may notify to the
Borrower and the Lenders. If there is a change of Agent in accordance
with Clause 22.9, "AGENT" will instead mean the new Agent appointed
under that Clause.
"ARRANGERS" means Barclays Capital, Den Danske Bank Aktieselskab and
Deutsche Bank AG London in their capacity as arrangers of the Facility.
"AUTHORISED SIGNATORY" means any person authorised to sign documents on
behalf of the Borrower by virtue of a resolution of the Treasury
Committee of the Borrower, a certified copy of which has been delivered
to the Agent. A
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person will cease to be an Authorised Signatory upon notice by the
appointing party to the Agent.
"BORROWED MONIES INDEBTEDNESS" of any person means, without double
counting:
(A) the principal amount of all indebtedness of that person for
borrowed money,
(B) the principal amount of all indebtedness under any acceptance
credit opened on behalf of that person, or in relation to any
letter of credit issued for the account of that person,
(C) the aggregate principal amount advanced under any bills of
exchange for which that person is liable,
(D) the principal amount of all indebtedness of that person under
any bond, debenture, note or similar instrument,
(E) the nominal value of share capital in that person to the
extent that such share capital is redeemable prior to the date
falling two years after the Maturity Date,
(F) the net termination value of currency hedging transactions
which have the commercial effect of converting Borrowed Monies
Indebtedness or Cash Investments from one currency to another
currency,
(G) all payment obligations of that person under any finance lease
or deferred purchase price of assets where such deferral was
for the purpose of procuring financial accommodation,
(H) the face amount of any receivables sold or discounted (other
than on a non recourse basis),
(I) all liabilities of that person (actual or contingent) under
any guarantee, bond, security, indemnity or other agreement in
respect of any Borrowed Monies Indebtedness of any other
person, and
(J) any transaction having the commercial effect of a borrowing
and classified as a borrowing for the purpose of GAAP,
all determined in accordance with GAAP but excluding Borrowed Monies
Indebtedness and indebtedness incurred by the Borrower to any of its
Subsidiaries or Subsidiary Undertakings or by any of its Subsidiaries
or Subsidiary Undertakings to any member of the Group.
In the case of Borrowed Monies Indebtedness in currencies other than
sterling, the relevant amount shall be the sterling equivalent thereof
on the relevant date.
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"BORROWER" means EMAP plc.
"BREAKAGE AMOUNT" means in relation to a Lender's participation in the
Advance an amount equal to (a) the principal of that Lender's
participation in that Advance plus (b) interest accrued on the Advance
(or relevant part thereof) to the last day of the then current Interest
Period discounted at such normal commercial rates applicable at the
time notice of prepayment is given by the Borrower for deposits of an
amount and currency equal to the Advance plus interest accrued thereon
(or relevant part thereof) for the period from the time of prepayment
to the last day of the then current Interest Period as the relevant
Lender may reasonably determine.
"BUSINESS DAY" means a day (other than a Saturday or a Sunday) on which
banks are open for general interbank business in London.
"CASH INVESTMENTS" means:
(a) cash (including cash with banks);
(b) bank deposits maturing within 12 months and money at call
with banks provided in each case that such banks have debt
securities outstanding with ratings at least as high as those
specified in item (d) below;
(c) amounts maturing within 12 months represented by certificates
of deposit and for tax deposit made with the Inland Revenue;
and
(d) the market value of debt securities (1) for which a
recognised market exists, (2) in respect of which a price is
ascertainable, (3) which have a maturity of up to 12 months,
(4) which are not encumbered in any way and (5) which have
either (i) a short term rating of at least 'A1' from Standard
& Poors or IBCA or 'P1' from Moodys or (ii) a long term
rating of at least 'A-' from Standard & Poors or IBCA or 'A3'
from Moodys or (iii) equivalent long or short term ratings
from other recognised rating agencies,
of the Group which are held in, or freely transferable back to, the
United Kingdom and readily available.
"CLEAN-UP DATE" means a date falling 180 days from the Unconditional
Date.
"COMMITMENT" means in relation to a Lender the amount set out opposite
its name in Schedule 1.
"CONSOLIDATED EARNINGS BEFORE INTEREST AND TAX" means the consolidated
earnings of the Group attributable to the specified period before
exceptional and extraordinary items (which will include acquisition
restructuring costs), the amortisation of goodwill, taxation, minority
interests, interest payable and receivable and any element attributable
to interest comprised in payments to
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lessors (or from lessees) under finance leases or to hirers (or from
customers) under hire-purchase agreements all determined in accordance
with GAAP.
"CONSOLIDATED NET WORTH" means the aggregate of the amounts paid-up or
credited as paid-up on the Borrower's issued share capital and the
amount of the consolidated capital and revenue reserves of the Group
(including any share premium account, capital redemption reserve and
any credit balance on the consolidated profit and loss account of the
Group) all as shown by the consolidated balance sheet and consolidated
profit and loss account of the Group as at the date of the Latest
Annual Accounts, but after adjusting for GAAP and after:
(a) deducting any debit balance on such consolidated profit and
loss account;
(b) deducting goodwill (including goodwill arising on
consolidation) and other intangible assets but excluding from
such deduction any goodwill arising on acquisitions after 31st
March, 1998 and all acquired publishing rights, titles,
exhibitions and licences;
(c) deducting all amounts attributable to minority interests in
the Borrower's Subsidiaries and Subsidiary Undertakings;
(d) deducting any sums set aside for taxation (other than deferred
taxation) to the extent that such sums are not provided for
therein;
(e) deducting any amounts distributed or proposed to be
distributed (except to any member of the Group by any of the
Borrower's Subsidiaries or Subsidiary Undertakings) out of
profits accrued prior to the date of such consolidated balance
sheet, to the extent that such distribution is not provided
for therein;
(f) making such adjustments during any financial year as may be
appropriate to reflect any addition to the Borrower's share
capital since the date of such Latest Annual Accounts. For
these purposes, any unissued shares in the Borrower which have
been unconditionally underwritten at the date of the
determination and scheduled to be issued within 60 days will
be treated as having been issued; and
(g) deducting any amounts attributable to upward revaluation of
any assets after 31st March, 1998 other than as a result of a
bona fide revaluation of such assets, all determined in
accordance with GAAP.
"COSTS RATE" means a rate per annum determined by the Agent and
notified to the Borrower. This rate will be applied to an outstanding
amount for a particular period. It will be calculated in accordance
with Schedule 4.
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"ENCUMBRANCE" means any mortgage, charge, pledge or lien or security
interest or any other arrangement having the effect of conferring
security including, without limitation, retention of title
arrangements.
"EVENT OF DEFAULT" has the meaning given in Clause 17.
"FACILITY" means the loan facility provided by this Agreement.
"FINANCIAL INDEBTEDNESS" means (without double-counting) any
indebtedness in respect of:
(a) borrowed money;
(b) any bond, debenture, note or similar instrument;
(c) any acceptance credit;
(d) the acquisition cost of any asset to the extent payable before
or after the time of acquisition or possession by the party
liable where the advance or deferred payment was arranged
primarily as a method of raising finance or financing the
acquisition of that asset;
(e) any lease entered into primarily as a method of raising
finance or financing the acquisition of the asset leased;
(f) receivables sold or discounted (other than on a non-recourse
basis);
(g) any amount raised under any other transaction having the
commercial effect of borrowing money and classified as a
borrowing for GAAP;
(h) any currency or interest rate swap or forward exchange
contract, floor, cap or collar arrangement or other derivative
instrument, and the amount of indebtedness in respect of the
transaction will be the net exposure (meaning the amount
payable by the party liable thereunder on termination or
closing out of such arrangements as determined on a xxxx to
market basis) of the relevant member of the Group; and
(i) any guarantee, indemnity or similar assurance against
financial loss of any person.
"GAAP" means accounting principles generally accepted and adopted in
the United Kingdom as at 31st March, 1998.
"GROUP" means the Borrower, its Subsidiaries and Subsidiary
Undertakings.
"HOLDING COMPANY" has the meaning described in section 736 of the
Companies Xxx 0000.
"INSTRUCTING GROUP" means, at any time, all the Lenders.
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"INTEREST PERIOD" means each period determined in accordance with
Clause 7.
"LATEST ANNUAL ACCOUNTS" means the annual audited consolidated accounts
of the Borrower for the year ended 31st March, 1998.
"LENDER" means a lender listed in Schedule 1 acting through the office
appearing under its name on the signature pages or any other office
which it may notify to the Agent by not less than 5 Business Days'
notice. The expression also includes a successor in title to a Lender.
"LIBOR" means in relation to the Advance or unpaid sum, on any day, the
rate per annum determined by the Agent to be equal to:-
(i) the rate per annum quoted at or about 11.00 a.m. on the
Quotation Date for such period on Telerate Page 3750 for such
period or, if such page or service shall cease to be
available, such other page or such other service (as the case
may be) for the purpose of displaying British Bankers
Association Interest Settlement Rates for sterling as the
Agent, after consultation with the Borrower, shall select,
provided that, if no such rate appears on the relevant page
for deposits in sterling and/or of the specified term, LIBOR
shall be determined in accordance with the provisions of
paragraph (ii) below; or
(ii) in any other case, (including any case where the proviso to
paragraph (i) above applies) the arithmetic mean (rounded
upwards to four decimal places) of the respective rates per
annum notified to the Agent by the Reference Banks as the rate
at which it is offering deposits in sterling for the specified
term to prime banks in the London Interbank Market at or about
11.00 a.m. on the Quotation Date for such period, and, for the
purpose of this definition, "SPECIFIED TERM" means the period
in respect of which LIBOR falls to be determined.
"LOAN" means the aggregate of the principal amount borrowed and not
repaid under the Facility.
"MATERIAL ADVERSE EFFECT" means any matter having a material adverse
effect on the ability of the Borrower to comply with its payment
obligations under this Agreement.
"MATERIAL SUBSIDIARY" means any Subsidiary or Subsidiary Undertaking of
the Borrower whose gross assets, net worth or earnings before interest
and tax (as determined in accordance with GAAP) exceeds 5 per cent. of
the consolidated gross assets of the Group (determined in accordance
with GAAP), the Consolidated Net Worth or, as the case may be, the
Consolidated Earnings Before Interest and Tax.
"MATURITY DATE" means the day falling 50 days after the date of this
Agreement.
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"OFFER" means the tender offer for the Xxxxxxxx Shares made or to be
made by the Borrower (or on its behalf) as such offer may from time to
time be amended, extended, added to, revised, renewed or waived.
"OFFER DOCUMENT" means the documents to be sent by or on behalf of the
Borrower to shareholders in Xxxxxxxx in respect of the Offer.
"PERMITTED ENCUMBRANCE" means:
(a) liens arising solely by operation of law or in the ordinary
course of business and any agreement for retention of title to
goods arising in the ordinary course of business;
(b) rights of set-off arising by operation of law or in the
ordinary course of trade or under pooling and netting
arrangements entered into by a member of the Group with banks
and other financial institutions in the ordinary course of its
business;
(c) all Encumbrances over or affecting any property where such
property is acquired by any member of the Group after the date
of this Agreement, but only if (i) such Encumbrance was not
created in contemplation of such acquisition and (ii) the
principal amount thereby secured has not been increased in
contemplation of, or since the date of, such acquisition;
(d) all Encumbrances over or affecting any property of any company
or other legal entity which becomes a Subsidiary or Subsidiary
Undertaking of the Borrower after the date hereof, where such
Encumbrance is created prior to the date on which such company
or other legal entity becomes a Subsidiary or Subsidiary
Undertaking of the Borrower but only if (i) such Encumbrance
was not created in contemplation of such company or legal
entity becoming a Subsidiary or Subsidiary Undertaking of the
Borrower and (ii) the principal amount thereby secured has not
been increased in contemplation of, or since the date of, such
company or other legal entity becoming a Subsidiary or
Subsidiary Undertaking of the Borrower;
(e) any Encumbrance which the Agent (acting on the instructions of
the Instructing Group) has at any time agreed shall be a
Permitted Encumbrance;
(f) any Encumbrance the principal amount secured by which does not
exceed 10 per cent. of the Consolidated Net Worth at the time
of vesting created over an asset within 30 days of the
acquisition thereof for the purpose of securing indebtedness
incurred to acquire and/or develop such asset;
(g) any Encumbrance securing Borrowed Monies Indebtedness incurred
by a member of the Group for the financing of a specific
project or projects
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where no other member of the Group has any liability, actual or
contingent, in any way related to such Borrowed Monies Indebtedness.
This exception will, however, only apply if the Encumbrance is created
on an asset of the relevant project and remains confined to that asset;
(h) any Encumbrance arising pursuant to an order of attachment,
distraint, garnishee or injunction restraining disposal of
assets or similar legal process (in respect of assets having a
value, in aggregate, of not more than pound sterling
5,000,000) arising in connection with court proceedings being
contested by the relevant member of the Group in good faith
with a reasonable prospect of success, provided that when
aggregated with the amount of all the assets secured by all
other Encumbrances falling within this paragraph (i) the
aggregate amount does not exceed 10 per cent. of the
Consolidated Net Worth;
(i) any Encumbrance (the "REPLACEMENT ENCUMBRANCE") created to
replace or renew or in substitution for any Encumbrance (the
"OLD ENCUMBRANCE") granted by a member of the Group referred
to in paragraph (c) or (d) above (whether upon a refinancing
or otherwise) where the Replacement Encumbrance is granted in
respect of the same asset as the Old Encumbrance and does not
secure an amount in excess of the amount secured on the Old
Encumbrance; and
(j) any Encumbrance (not falling within paragraphs (a) to (i)
above) the principal amount secured by which, when aggregated
with the principal amount secured by all other Encumbrances
falling within this paragraph (j), does not exceed 10 per
cent. of the Consolidated Net Worth;
"XXXXXXXX" means The Xxxxxxxx Companies, Inc.
"XXXXXXXX GROUP" means Xxxxxxxx and its Subsidiaries and Subsidiary
Undertakings.
"XXXXXXXX SHARES" means the existing issued and fully paid-up shares in
Xxxxxxxx and any further shares in Xxxxxxxx allotted or issued after
the date hereof (including, for the avoidance of doubt, both shares
allotted or issued as a result of the exercise of options granted under
any share schemes existing in respect of shares in Xxxxxxxx and such
options themselves).
"POTENTIAL EVENT OF DEFAULT" means an event or state of affairs which
is mentioned in Clause 17 but which has not become an Event of Default
because a period has not elapsed and/ or a notice has not been given.
"PRESS RELEASE" means the press release issued by the Borrower or on
its behalf on announcement of the Offer and the Rights Issue.
"QUALIFYING BANK" means a bank for the purposes of section 349 Income
and Corporation Taxes Xxx 0000.
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"QUOTATION DATE" in relation to any period for which an interest rate
is to be determined hereunder means the first day of the relevant
Interest Period.
"REFERENCE BANKS" means, initially, the principal London offices of
Barclays Bank PLC, Den Danske Bank Aktieselskab and Deutsche Bank AG
London. The Agent, following consultation with the Borrower and the
Lenders, may replace a "REFERENCE BANK" with another Lender or an
Affiliate of a Lender. This replacement will take effect when notice is
delivered to the Borrower and the Lenders. The Agent shall be obliged
to seek a replacement for a Reference Bank if it no longer has a
Commitment.
"RESERVATIONS" means (i) the principle that equitable remedies are
remedies which may be granted or refused at the discretion of the
court, (ii) the limitation of validity and/or enforcement by laws
relating to bankruptcy, insolvency, liquidation, reorganisation, court
schemes, moratoria, administration and other laws generally affecting
the rights of creditors, (iii) the time barring of claims under the
Limitation Acts, (iv) defences of set-off or counterclaim and similar
principles, (v) where a party to this Agreement is vested with a
discretion or may determine a matter in its opinion, that party may be
required to exercise its discretion reasonably or be required to hold
that opinion on reasonable grounds, (vi) any determination or
certificate made or given pursuant to any provision of this Agreement
which provides for such determination or certificate to be shown to
have been incorrect, unreasonable, or arbitrary or not to have been
given or made in good faith, (vii) if an English court were to construe
any provision of this Agreement as being in the nature of a penalty,
such provision would not be held to be valid and binding, (viii) the
award of enforcement costs is a discretionary remedy and (ix)
undertakings to pay stamp duty may be void under the Xxxxx Xxx 0000.
"RIGHTS ISSUE" means the offer of shares in the Borrower by way of
rights to existing holders of shares as described in the Shareholders
Circular.
"SHAREHOLDERS CIRCULAR" means the circular to be sent by the Borrower
or on its behalf to its shareholders in connection with the Offer and
the Rights Issue.
"SUBSIDIARY" has the meaning described in section 736 of the Companies
Xxx 0000.
"SUBSIDIARY UNDERTAKING" has the meaning described in section 258 of
the Companies Xxx 0000.
"TOTAL COMMITMENTS" means the aggregate of the Commitments of all the
Lenders.
"UNCONDITIONAL DATE" means the date on which each of the conditions of
the Offer has been fulfilled or, alternatively, waived and the Offer is
declared unconditional in all respects.
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"UNDERWRITING AGREEMENT" means the Agreement between the Borrower and
J. Xxxxx Xxxxxxxx & Co. Limited and Bankers Trust International PLC
(trading as B.T. Xxxx Xxxxx International) under which J. Xxxxx
Xxxxxxxx & Co. Limited and Bankers Trust International PLC underwrite
the Rights Issue.
1.2 INTERPRETATION OF CERTAIN REFERENCES
Unless a contrary intention is indicated:
(A) References to Clauses and Schedules are to Clauses
of, and the Schedules to, this Agreement. References
to paragraphs are to paragraphs in the same Clause.
(B) References to other documents include those documents
as they may be amended in the future.
(C) References to times are to London time.
(D) References to assets are to present and future assets
and include revenues.
(E) References to "pound sterling" AND to "sterling" are
to the lawful currency of the United Kingdom.
(F) References to fees or expenses include any value
added tax on those fees or expenses.
(G) References to a "regulation" includes any regulation,
rule, official directive, request or guideline
(whether or not having the force of law) of any
governmental body, agency, department or regulatory,
self-regulatory or other authority or organisation.
1.3 HEADINGS
All headings and titles are inserted for convenience only. They are to
be ignored in the interpretation of this Agreement.
1.4 CALCULATIONS
Interest and commitment fees will be calculated using the following
formula:
I = D x R x A
-------------
Y
where:
I = the interest or commitment fee accrued
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D = the number of days in the period for which the
interest or commitment fee is to be calculated,
including the first day but excluding the last day
unless it is market practice in the London inter-bank
market to do otherwise when market-practice shall
prevail
R = the rate of interest or commitment fee, expressed
as a fraction
A = the amount on which interest or commitment fee is
being calculated
Y = 365
Interest and commitment fee will be treated as accruing uniformly over
each period on a daily basis. In some cases, "R" or "A" may change
during a period for which the interest or commitment fee is to be
calculated. In those cases the interest or commitment fee will be
calculated for successive periods and then aggregated. These successive
periods will be the periods during which "R" and "A" were constant.
1.5 REIMBURSEMENTS
If a party wishes to claim reimbursement of any amount to which it is
entitled, it will deliver a demand to the reimbursing party. This will
set out the losses, expenses or other amounts to be reimbursed. It must
also specify the currency of reimbursement. The reimbursing party
agrees to pay those amounts to the party entitled to them no later than
five Business Days after the delivery of the demand to the reimbursing
party. Where there is an outstanding Event of Default, payment will
instead be due on delivery of this demand.
1.6 ARRANGERS
Barclays Capital is the investment banking division of Barclays Bank
PLC and all references to Barclays Capital include Barclays Bank PLC.
This paragraph does not affect the rights and obligations of Barclays
Bank PLC under this Agreement.
2. THE FACILITY
2.1 AMOUNT AND NATURE
The Facility is a bridging loan facility of pound sterling 360,000,000
under which a single Advance may be made by the Lenders to the
Borrower.
2.2 PURPOSE
The proceeds of the Facility will be used by the Borrower towards
payment of consideration to be provided by the Borrower (or on its
behalf) for the Xxxxxxxx Shares acquired by it pursuant to the Offer or
otherwise and in respect of the cash cancellation of options.
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2.3 Without prejudice to the obligations of the Borrower under Clause
2.2, neither the Agent, the Arrangers nor the Lenders nor any of them
shall be obliged to investigate or concern themselves with the use or
application of amounts raised by the Borrower hereunder.
2.4 Availability
THE BORROWER MAY, AFTER 4TH JANUARY, 1999, BORROW UNDER THE FACILITY
AFTER THE AGENT HAS RECEIVED (I) ALL THE ITEMS LISTED IN PART 1 OF
SCHEDULE 2 IN A FORM SATISFACTORY TO THE AGENT AND (II) ALL THE ITEMS
LISTED IN PART 2 OF SCHEDULE 2, WITH ALL REFERENCES TO THE AGENT, THE
LENDERS OR THE TERMS OF THE FACILITY OR THIS AGREEMENT IN SUCH
DOCUMENTS IN A FORM APPROVED BY THE AGENT (SUCH APPROVAL NOT TO BE
UNREASONABLY WITHHELD). THE AGENT AGREES TO NOTIFY THE BORROWER AND THE
LENDERS PROMPTLY UPON SUCH ITEMS BEING RECEIVED.
2.5 EXPIRY OF AVAILABILITY
The Borrower may not borrow under the Facility after the Maturity Date.
3. THE LENDERS
3.1 RIGHTS AND OBLIGATIONS
The rights and obligations of each Lender under this Agreement
are separate and independent from the rights and obligations
of each other Lender. A Lender may take proceedings against
the Borrower on its own without joining any other Lender to
those proceedings.
3.2 FAILURE TO PERFORM
If a Lender fails to perform its obligations the Borrower will
have rights solely against that Lender. The obligations of the
Borrower to the Agent, the Arrangers and the other Lenders
will not be affected by this failure.
3.3 PARTICIPATIONS
The participation of the Lenders in the Advance will be pro
rata to their Commitments.
4. REIMBURSEMENT OF INITIAL EXPENSES
The Arrangers and the Agent have incurred and will incur
expenses in connection with the arrangement of the Facility.
The Borrower agrees to reimburse each of the Arrangers and the
Agent in relation to these expenses. The limit of the amount
of this reimbursement and the timing of payment are described
in the letter from the Arrangers to the Borrower dated the
same date as this Agreement.
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5. AUTOMATIC CANCELLATION
Any amount undrawn under the Facility at the end of the
Advance Date will be automatically cancelled and may not be
drawn.
6. ADVANCE OF FUNDS
6.1 NOTICE
When the Borrower wishes to borrow under the Facility, the
Borrower will send to the Agent an Advance Request specifying
the amount to be borrowed and the Advance Date. Unless
otherwise agreed between the Agent and the Borrower, the
Advance Date must be no sooner than two Business Days after
the day on which the Agent receives the Advance Request. For
this purpose, if the Agent receives the Advance Request on a
day which is not a Business Day or after 10.00 a.m. on a
Business Day, it may be treated as having received the request
on the following Business Day.
6.2 CONDITIONS TO BORROWING
The Lenders will only be obliged to make the Advance to the
Borrower if:
(A) the Facility is available in accordance with Clause
2.4;
(B) an Advance Request has been received by the Agent;
(C) there is no Event of Default or Potential Event of
Default which has occurred or is occurring on the
Advance Date or would result from the Advance being
made.
6.3 OBLIGATION TO ADVANCE FUNDS
If the requirements of paragraphs 6.1 to 6.2 are satisfied,
each Lender agrees to advance its participation in the Advance
to the Borrower. The Advance will be made on the Advance Date
specified in the Advance Request. If the Advance is not made
in full due to a fault of a Lender, then subject to the terms
of this Agreement, the relevant Lender agrees to reimburse the
Borrower for the reasonable amount of any losses and expenses
incurred as a result.
6.4 CONSEQUENCES OF THE ADVANCE NOT BEING MADE
If the Advance Request is delivered but no Advance is made, the Lenders
may incur losses and expenses as a result. The losses and expenses may
include those incurred in liquidating or otherwise utilising amounts
borrowed by the Lenders to fund the Advance. They may also include the
losses and expenses incurred in terminating commitments relating to the
funding or incurred in hedging open positions resulting from the
Advance not being made. The Borrower agrees to reimburse the Lenders
for the amount of these losses and
17
expenses actually incurred. This Clause 6.4 does not apply to a Lender
if the Advance is not made by reason of a default of that Lender.
7. INTEREST ON ADVANCES
7.1 INTEREST PERIODS
The Advance will have a first Interest Period commencing on the Advance
Date. Subsequent Interest Periods will commence on the last day of the
preceding Interest Period.
7.2 DURATION OF INTEREST PERIODS
The Interest Period must be a period of up to 14 days.
7.3 SELECTION OF INTEREST PERIODS
(A) The Borrower may select an Interest Period in respect of the
Advance either in its Advance Request or, in the case of
second and subsequent Interest Periods, by separate notice to
the Agent on or before 10.00 a.m. on the first day of the
relevant Interest Period.
(B) When the Borrower does not select an Interest Period in
accordance with paragraph (A), the interest shall accrue on an
overnight basis.
7.4 ADJUSTMENT OF INTEREST PERIOD
(A) If any Interest Period shall end on a day which is not a
Business Day, it shall be extended to the next Business Day.
(B) Any Interest Period which would otherwise begin before but end
after the Maturity Date will end on the Maturity Date.
7.5 RATE OF INTEREST
The rate of interest applicable during an Interest Period will be a
rate per annum equal to LIBOR for that Interest Period plus the Costs
Rate.
7.6 PAYMENT OF INTEREST
The Borrower agrees to pay interest accrued on the Advance in arrear on
the last day of each Interest Period.
7.7 NOTIFICATION OF INTEREST RATE
The Agent will promptly notify the Lenders and the Borrower of the
determination of a rate of interest under this Agreement.
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8. REPAYMENT OF ADVANCES
8.1 The Borrower agrees to repay the Advance no later than the Maturity
Date.
8.2 To the extent that the borrower receives unconditionally any proceeds
from the Rights Issue, they shall be placed on deposit with the lenders
pro rata to their commitments until the next interest payment date at
which time they shall be applied in repayment of the facility. Such
deposits shall bear interest at a rate which would have been reasonably
obtainable by the borrower had deposits of equivalent amounts been
placed in the market with third party banks for a period expiring on
the next interest payment date. Each lender will notify the borrower
and the agent of the relevant rate (and the amount of interest that
will accrue) as soon as practicable after determination. Each lender
shall be entitled to set off amounts earned by way of interest on such
deposits against the borrower's obligations to pay interest on the
advance.
8.3 The Borrower may not repay the Advance early except in the manner
permitted or required in this Agreement.
9. MARKET DISRUPTION AND ALTERNATIVE INTEREST RATES
(9.1) MARKET DISRUPTION - GENERAL
(A) Nature of market disruption: This Clause 9.1 applies if in
relation to the Advance any of the following is true:
(i) the Agent believes that there are no reasonable means
to ascertain LIBOR because of circumstances generally
applicable in the London inter-bank market. This
determination may only be made after consultation
with the Reference Banks; or
(ii) Lenders with Commitments exceeding 40 per cent. of
the Total Commitments notify the Agent that they
believe that, due to circumstances generally
applicable in the London inter-bank market, LIBOR
would not reflect accurately the cost to them in such
market of funding an amount equal to the Advance; or
(iii) LIBOR cannot be determined because fewer than two
Reference Banks provide quotations; or
(iv) Lenders with Commitments exceeding 40 per cent. of
the Total Commitments notify the Agent that they are
unable to fund the total amount borrowed in the
London inter-bank market because of circumstances
generally applicable in that market.
(B) NOTICE: The Agent agrees promptly to notify the Borrower if
paragraph (A) applies.
19
(C) ALTERNATIVE INTEREST RATE ARRANGEMENTS: If the Agent delivers
a notice of market disruption under paragraph (B), each of the
following applies:
(i) The means of determining the rates of interest
applicable to the Facility will be suspended. Instead
the Borrower agrees to pay interest to the Lenders in
the manner requested by the Agent. A request by the
Agent may specify periods to be used for the
computation of interest. It must also specify the
rate of interest to apply for a period. This rate
will be the rate determined by the Agent (with the
prior agreement of the Lenders) to reflect the cost
excluding any cost to the extent reflected in the
Costs Rate to each Lender of funding for the period
plus the Costs Rate. In order to assist the Agent in
this determination each Lender agrees to provide to
the Agent any information which the Agent may
request. If this information is received by the Agent
within any time period reasonably specified by the
Agent it will be taken into account by the Agent in
making its determination.
(ii) The Borrower and the Agent agree to negotiate the
terms of an alternative arrangement for determining a
rate of interest for the Facility. The negotiations
will be carried on in good faith. Neither party is
bound to continue the negotiations after the date 30
days after the Borrower receives the Agent's notice.
If agreement is reached between the Borrower and the
Agent (with the prior agreement of the Lenders), the
rate of interest will be determined in accordance
with the agreement. Paragraph (i) will not apply to
the extent that it is expressly excluded by such
agreement.
(iii) If all the Lenders do not agree an alternative basis,
each Lender (through the Agent) shall certify on or
before the last day of the Interest Period to which
the notification relates an alternative basis for
maintaining its participation in the Advance and such
alternative basis may include an alternative method
of fixing the interest rate of alternative Interest
Periods but it must reflect the cost to the Lender of
funding its participation in the Advance from
whatever sources it may reasonably select plus the
Costs Rate, and each alternative basis so certified
shall be binding on the Borrower and the certifying
Lender and treated as part of the Agreement.
(iv) If the circumstances described in paragraph (A) cease
to apply, the Agent will notify the Borrower and the
Lenders. The notice will specify the transitional
arrangements proposed by the Agent (with the prior
agreement of the Lenders), in order for the means of
determining the rates of interest applicable to the
Facility to return to the means by which interest
rates are normally calculated under this Agreement.
The Borrower agrees to pay interest to the Lenders in
the manner described in this notice
20
unless a different arrangement is agreed by the Agent and the
Borrower and approved by all the Lenders. In this case the
Borrower agrees to pay interest to the Lenders in the manner
agreed.
10. CHANGES OF CIRCUMSTANCES
10.1 ILLEGALITY
(A) NOTICE: Each Lender agrees to notify the Borrower as soon as
reasonably practicable if by reason of any change in
applicable law or regulation, or in the interpretation or
application of applicable law or regulation, in each case
after the date of this Agreement that Lender is or will be
acting illegally in relation to the Facility. The illegality
may relate to the performance of the Lender's obligations, the
maintenance of the Facility or the Lender's funding
arrangements or otherwise.
(B) CANCELLATION AND PREPAYMENT: If a Lender delivers a notice of
illegality the Commitment of that Lender will be cancelled on
the date of that notice. The Borrower agrees to repay the
participation of that Lender in each Advance made to it on the
last day of the Interest Period of that Advance during which
the notice is received, unless the Lender certifies that,
because of a legal requirement or regulation applicable to the
Lender, it must be repaid earlier. In this event the Borrower
shall prepay the appropriate proportion of the Breakage Amount
by reference to such participation on the date (or dates)
specified by the Lender.
10.2 INCREASED COSTS
(A) Types of increased costs: This Clause 10.2 applies where all
of (i), (ii) and (iii) are true:
(i) Either:
(a) there is a change after the date of this
Agreement in a legal or other requirement
applicable to the Lender or a change after the
date of this Agreement in its interpretation or
application; or
(b) a Lender or its Holding Company complies with a
direction or request of an authority which has
power or influence over the activities of the
Lender where the direction or request is made
after the date of this Agreement.
(ii) As a result, any of the following occurs:
(a) the Lender or its Holding Company incurs an
expense; or
(b) the Lender's or its Holding Company's effective
return from the Facility or on its overall
capital is reduced; or
21
(c) any amount payable to the Lender or its Holding
Company is reduced; or
(d) the Lender or its Holding Company does not
recover an amount which would otherwise have
been paid to it.
No account will be taken of any of the following:
(1) Tax on the overall net income of the Lender
in the country in which it has its
principal office or the office through
which it is acting for the purposes of this
Agreement (or any withholding tax incurred
which, for the avoidance of doubt, shall be
dealt with in clause 10.3).
(2) Any loss, reduction or expense to the
extent reflected in the Costs Rate.
(iii) The losses, reductions and expenses arising as a result
are wholly or partly attributable to the Facility or the
arrangements made by the Lender in connection with the
Facility.
(B) NOTICE: Each Lender agrees to notify the Borrower through the
Agent as soon as practicable if it becomes aware that
paragraph (A) applies.
(C) PAYMENT OF ADDITIONAL AMOUNTS: The Borrower agrees to
reimburse each Lender for the losses, reductions and expenses
described in paragraph (A) or a pro rata proportion thereof to
the extent that the same are only partly attributable to the
Facility.
(D) PREPAYMENT: If a Lender delivers a notice of increased costs,
the Borrower may deliver a notice of prepayment to that
Lender. The Borrower agrees to prepay the participation of
that Lender in each Advance on a date specified in the notice
of prepayment. In this event the Borrower shall repay an
amount equal to the Breakage Amount for each Lender by
reference to such participation.
10.3 WITHHOLDING TAXES
(A) Withholdings and deductions: This Clause 10.3 applies if the
Borrower is required by law to make a payment under this
Agreement net of a withholding or deduction.
(B) NOTICE: The Borrower agrees to notify the Agent if it becomes
aware that paragraph (A) applies.
22
(C) GROSSING UP: The Borrower agrees to increase the amount of any
payment which is subject to a withholding or deduction so that
the person entitled to the payment receives the same amount it
would have received if there had been no withholding or
deduction.
(D) PAYMENT OF TAX: The Borrower will pay to the appropriate
authority all amounts withheld or deducted by it. If a receipt
or other evidence of payment is issued by the relevant
authority after receipt of payment, the Borrower agrees to
deliver this to the Agent as soon as practicable after a
request for the same.
(E) PREPAYMENT: If paragraph (A) applies, the Borrower may deliver
a notice of prepayment to the Agent. This notice may relate to
the Advance (or part of the Advance) or the interest thereon,
in each case which is subject to the withholding or deduction.
The Borrower agrees to prepay the participation of the Lenders
in the Advance (or the part of it which is affected) on a date
specified in the notice of prepayment and a corresponding
portion of the relevant Commitment shall be cancelled. In this
event the Borrower shall repay an amount equal to the Breakage
Amount for each Lender by reference to such participation.
(F) TAX CREDITS: This paragraph applies if:
(i) the Borrower pays any additional amount under this Clause
10 (a "TAX PAYMENT");
(ii) a Lender effectively obtains a refund of tax, or obtains
and uses credit against tax, by reason of the Tax Payment
or the withholding or deduction that gave rise to the Tax
Payment (a "TAX CREDIT"); and
(iii) that Lender is able to identify the Tax Credit as being
attributable to the Tax Payment or such withholding or
deduction.
In this case the Lender agrees to reimburse to the Borrower
the amount that the Lender determines in good faith to be the
proportion of the Tax Credit which will leave the Lender
(after that reimbursement) in no better or worse position than
it would have been in if the Tax Payment had not been
required. The Lender has an absolute discretion as to whether
to claim any Tax Credit and, if it does claim, the extent,
order and manner in which it does so. The Lender is not
obliged to disclose any information regarding its tax affairs
or computations to the Agent or the Borrower.
10.4 INLAND REVENUE TREATMENT OF THE LENDERS
(A) Each Lender warrants that it is a Qualifying Bank at the date
of this Agreement or, if later, at the date it becomes a party
to the Facility and that it will remain, until it notifies the
Agent to the contrary, a
23
Qualifying Bank and undertakes to notify the Agent immediately
after it becomes aware that it is not or will cease to be a
Qualifying Bank.
(B) The Borrower will not be required to pay increased amounts
under Clause 10.3 in relation to any interest if:
(i) the Lender is not or ceases to be a Qualifying Bank;
or
(ii) that interest is not beneficially owned by a person
who is within the charge to United Kingdom
corporation tax in respect of it; or
This paragraph (B) applies only insofar as a withholding or
deduction is due to the circumstances set out in (i) or (ii)
above. It does not apply where the circumstances described in
(i) or (ii) above are a result of a subsequent change in law
or concession or change in the interpretation or application
of law or concession. Each Lender undertakes to notify the
Agent immediately after it becomes aware of any change in the
circumstances described in (i) or (ii) above.
10.5 MITIGATION
This Clause 10.5 does not affect the obligations of the Borrower under
the other paragraphs of this Clause 10. If any of Clause 10.1, 10.2 or
10.3 applies to a Lender, that Lender will take all steps reasonably
open to it (including, without limitation, transferring the Facility to
another bank acceptable to the Borrower) to mitigate the effect of that
clause on the Borrower. The Lender will not, however, be obliged to do
anything which in its opinion (acting in good faith) would or would be
reasonably likely to have an adverse economic effect on it.
11 PAYMENTS
11.1 METHOD AND TIMING OF PAYMENTS
All payments under this Agreement must be made in immediately available
and freely transferable funds in sterling. Each payment must be for
value on the due date.
11.2 PAYMENTS THROUGH THE AGENT
All payments by the Borrower or by a Lender under this Agreement will
be made through the Agent to its account at such office or bank as it
may notify to the Borrower or the Lender for this purpose. The Agent
will pay on an amount received as soon as the Agent has ascertained
that it has been received.
11.3 PAYMENTS TO THE BORROWER
Each payment by the Agent to the Borrower will be made to the account
of the Borrower as the Borrower may notify to the Agent from time to
time.
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11.4 PAYMENTS TO THE LENDERS
Each payment by the Agent to each Lender will be made to such account
of that Lender as the Lender may notify to the Agent from time to time.
11.5 CHANGE OF ACCOUNT
The Borrower or a Lender may change any of its receiving accounts by
not less than five Business Days' notice to the Agent. The Agent may
change any of its receiving accounts by not less than five Business
Days' notice to the Borrower and each Lender.
11.6 REFUNDING OF PAYMENTS BY THE AGENT
This Clause 11.6 applies if the Agent makes a payment out in the
mistaken belief that it has received or will receive an incoming
payment on a particular day. In this case the person which received the
payment from the Agent agrees to return it on request. It will also
reimburse the Agent for all losses and expenses incurred by the Agent
as a result of the payment. This Clause 11.6 does not affect the rights
of the person which received the payment against the person which
failed to make the payment to the Agent.
11.7 NON-BUSINESS DAYS
If a payment would be due on a day other than a Business Day, the
payment obligation will be deferred to the next Business Day, unless
that day is in another calendar month. Where that next Business Day is
in the next calendar month, the payment obligation will be brought
forward to the last Business Day of the current calendar month.
Interest and commitment fee payments will be adjusted accordingly.
During any extension of the due date for payment of any principal,
interest is payable on the principal at the rate payable on the
original due date.
11.8 PAYMENT IN FULL
All payments made by the Borrower under this Agreement will be made
without set-off or counterclaim. No payment will be made net of a
withholding or deduction, unless this is required by law. In this
event, Clause 10.3 applies.
11.9 SET-OFF
If the Borrower owes money to a Lender under this Agreement, such
Lender may set off this obligation against any moneys deposited with
such Lender under Clause 8.2. This sub-clause applies even where
amounts owed by the Lender to the Borrower are not due and payable, if
there is an outstanding Event of Default or Potential Event of Default.
If the Lender sets off an obligation under this Agreement, it will
notify the Borrower promptly of the amount set off.
25
11.10 PARTIAL PAYMENTS
(A) If in relation to the Facility the Agent receives a payment
insufficient to discharge all the amounts then due and payable
by the Borrower under this Agreement, the Agent shall apply
that payment towards the obligations of the Borrower in the
following order:
(i) first, in or towards payment pro rata of any unpaid
fees, costs and expenses of the Agent;
(ii) secondly, in or towards payment pro rata of any
accrued interest and fees due but unpaid under this
Agreement;
(iii) thirdly, in or towards payment pro rata of any
principal due but unpaid under this Agreement; and
(iv) fourthly, in or towards payment pro rata of any other
sum due but unpaid under this Agreement.
(B) The Agent shall, if so directed by all the Lenders, vary the
order set out in sub-paragraphs (A)(ii) to (iv) above. The
Agent shall notify the relevant Borrower of any such
variation.
(C) Paragraphs (A) and (B) above shall override any appropriation
made by the Borrower.
12. LATE PAYMENT
12.1 DEFAULT INTEREST
The Borrower agrees to pay interest on all amounts unpaid by it under
this Agreement after their due date for payment. This interest will be
computed by reference to successive periods of a duration not exceeding
six months selected by the Agent (acting reasonably). The first of
these periods will start on the due date for payment of the unpaid
amount. The rate of interest applicable during each of these periods
will be a rate per annum equal to 1.8 per cent. plus LIBOR for that
period plus the Costs Rate. This interest will be paid in arrear on the
last day of each of these periods and on the date of payment of the
unpaid amount.
12.2 INDEMNITY
If the Borrower fails to make a payment on the due date, the Borrower
agrees to reimburse and indemnify the person entitled to the payment
for the losses and expenses (including loss of profit) that person
reasonably incurs, or will incur, as a result. The computation of these
losses and expenses will take into account any amount received under
Clause 12.1.
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13. SHARING AMONG LENDERS
13.1 NOTICE
If an amount due to a Lender under this Agreement is discharged other
than by payment through the Agent, that Lender (the "RECIPIENT") agrees
to notify the Agent. This may occur because of the exercise of a right
of set-off, by virtue of a combination of accounts or because of a
voluntary or involuntary payment by the Borrower direct to the
Recipient. The notification will provide details of the amount
discharged and will be delivered no later than 10 Business Days after
the discharge.
13.2 DETERMINATION BY THE AGENT
Where a Lender has issued a notice under Clause 13.1 the Agent will
determine what payments, if any, are due under Clause 13.4. This
determination will be made on the basis of the information contained in
all the notices delivered to the Agent under Clause 13.1. The
determination will be notified to the Borrower and the Lenders.
13.3 LITIGATION
In determining the amount due under Clause 13.4 no account will be
taken of an amount due to a Lender which has declined to participate in
legal proceedings which resulted in the payment described in Clause
13.1. This only applies if that Lender could have joined in the
proceedings or could have instituted its own proceedings, but failed to
do so.
13.4 PAYMENT TO THE AGENT
The Recipient agrees to pay to the Agent an amount calculated as
follows:
P = D (X - Y)
where
P = the amount payable to the Agent
D = the aggregate amount due to the Recipient out of which an amount
has been discharged
X = the fraction of D which has been discharged
Y = the fraction which has been discharged, if any, of the aggregate
amount due to the Lender which has the greatest proportion of that
amount still outstanding.
This amount will be paid no later than five Business Days after receipt
of a notice from the Agent under Clause 13.2.
27
13.5 OBLIGATIONS OF THE BORROWER
Any amount due to the Recipient which would otherwise have been
discharged as described in Clause 13.1 will be treated as not having
been discharged to the extent of an amount which is or will be payable
under Clause 13.4 as a result. Accordingly the Borrower agrees to pay
this amount to the Recipient as if it had not been discharged. This
payment is required to be made whether or not the Agent has issued a
determination under Clause 13.2.
13.6 DISTRIBUTION
The Agent agrees to distribute to the Lenders the amount received by it
under Clause 13.4 as if that amount had been received from the Borrower
in discharge of the amount due under the Agreement. The Borrower will
then be treated as having paid that amount.
13.7 RECOVERY
This Clause 13.7 applies if an amount discharged as described in Clause
13.1 is recovered from, or is required to be repaid by, the Recipient.
In this case each Lender which received the benefit of a payment made
under Clause 13.4 agrees to repay to the Recipient the amount it
received. Each of these Lenders will also reimburse the Recipient for
any interest or other losses or expenses which the Recipient has
incurred in connection with the discharged amount or its recovery or
repayment. The rights and obligations of the parties shall be restored
to the position before any payment became due under Clause 13.4.
14. REPRESENTATIONS
14.1 INITIAL REPRESENTATIONS
The Borrower confirms that each of the following is true:
(A) NATURE: It is a company duly incorporated and validly existing
under the laws of England and Wales.
(B) POWERS: It has power to sign and deliver this Agreement and to
exercise its rights and perform its obligations under this
Agreement. The signature and delivery of this Agreement on its
behalf and the exercise of its rights and the performance of
its obligations under this Agreement have been duly
authorised.
(C) LEGAL VALIDITY: Its obligations described in this Agreement
are legal and valid and enforceable subject to the
Reservations.
(D) NON-CONFLICT: The signature and delivery of this Agreement on
its behalf and its exercise of rights and performance of
obligations under this Agreement:
28
(i) are not prohibited by or will not contravene any law
or its Memorandum or Articles of Association; and
(ii) are not prohibited by, or will not contravene any or
do not constitute an event of default under, any
document or arrangement to which it is a party.
(E) RANKING OF OBLIGATIONS: Its financial obligations under this
Agreement rank at least equally with all its other present and
future unsecured and unsubordinated obligations. Certain
categories of its other obligations will, however, be
preferred in a liquidation by virtue of mandatory provisions
of statute. They will be ignored for the purposes of this
paragraph.
(F) NO EVENT OF DEFAULT: No Event of Default has occurred and
remains unremedied.
(G) NO BREACHES: No member of the Group is in breach of or default
under any agreement to which it is a party or which is binding
on it or any of its assets to an extent or manner which could
reasonably be expected to have a Material Adverse Effect.
(H) SECURITY: Execution and performance of its obligations under
the Agreement will not result in an Encumbrance.
(I) LITIGATION: Save as disclosed there is no litigation or other
proceedings current, or in so far as it is aware, pending or
threatened in writing against any member of the Group which
could reasonably be expected to have a Material Adverse
Effect. In investigating the affairs of the Xxxxxxxx Group, no
litigation or other proceedings have come to its attention
which could reasonably be considered to be material in the
context of the Facility.
(J) COMPLIANCE WITH ENVIRONMENTAL LAWS: It is in compliance in all
respects material in the context of the Facility with
applicable laws relating to environmental matters.
(K) ACCOUNTS: The Latest Annual Accounts were prepared in
accordance with generally accepted published accounting
principles accepted in the United Kingdom at the time they
were prepared. They give a true and fair view of the assets
and liabilities of the Group as at the date to which they were
prepared and of the Group's results for the financial period
ended on that date. To the extent that generally accepted
accounting principles have changed since the previous
financial year the Latest Annual Accounts, either contain or
are accompanied by a commentary explaining the principal
differences.
29
(L) EVENTS SINCE THE ACCOUNT DATE: Since 31st March, 1998, there
has been no material adverse change in the financial or
trading position of the Group taken as a whole.
(M) YEAR 2000: Any reprogramming required to permit the proper
functioning in and following the year 2000 of the computer
systems of the Group (excluding systems and equipment supplied
by others with which the systems of the Group are required to
interface) will be substantially completed by 30th September,
1999 except when a failure to do so could not reasonably be
expected to have a Material Adverse Effect.
14.2 REPETITION
The representations in Clauses 14.1(A), (B), (C), (D), (G), (I) (except
for the second sentence thereof), (J), (K) and (M) will be deemed
repeated in each Advance Request, on the making of the Advance and on
the first day of each Interest Period. This repetition will be with
reference to the facts on that day.
15. INFORMATION COVENANTS
The Borrower agrees to deliver each of the following to the Agent (upon
request in sufficient copies for all the Lenders):
(A) All information reasonably requested by the Agent;
(B) Notice of any Event of Default or any Potential Event of
Default immediately after the Borrower becomes aware of the
same; and
(C) If the Agent has reasonable grounds for suspecting that the
same might exist, confirmation that no Event of Default or
Potential Event of Default is outstanding, signed by two
Directors of the Borrower.
16. GENERAL COVENANTS
The Borrower agrees as follows:
(A) Ranking of Obligations: Its obligations to each Lender will
rank as provided for in Clause 14.1(E).
(B) DISPOSALS: It shall not, and will procure that none of its
Subsidiaries or Subsidiary Undertakings (either in a single
transaction or in a series of transactions whether related or
not) shall sell, transfer, lease, lend or otherwise dispose of
(such transactions being referred to as "disposals") all or
any part of its assets, except for:
(i) disposals of assets in the ordinary course of
business;
(ii) disposals to any member of the Group;
30
(iii) disposals with the prior consent of on Instructing
Group (such consent not to be unreasonably withheld);
(iv) disposals of cash for purchases of assets in the
ordinary course of business and for the purchase of
the Xxxxxxxx Shares;
(v) disposals of assets to the extent that the proceeds
therefrom are within 3 months before or after such
disposal, reinvested in or used to acquire shares or
assets in a business in a sector in which any member
of the Group is engaged at the time of the disposal;
(vi) disposals of assets to the extent that the proceeds
therefrom are within three months of such disposal,
used to repay or prepay the Facility; and
(vii) other disposals of assets which in each financial
year generate in aggregate 10 per cent. or less of
Consolidated Earnings Before Interest and Tax as at
the date of the Latest Annual Accounts.
(C) NEGATIVE PLEDGE: Neither it nor any of its Subsidiaries or
Subsidiary Undertakings will create or permit to subsist any
Encumbrance on the whole or any part of its assets other than
Permitted Encumbrances.
(D) INSURANCE: It shall maintain insurance cover with reputable
insurers or underwriters at a level and against such risks as
are usual for companies carrying on its business.
(E) CHANGE OF BUSINESS: It shall ensure that no substantial change
is made to the general nature of the business of the Group
taken as a whole.
(F) THE OFFER
The Borrower shall:
(i) to the extent that it has not already done so, issue
the Press Release within 2 Business Days of the date
of this Agreement;
(ii) until the earlier of the date the Offer lapses or is
finally closed, comply in all material respects with
the Financial Services Xxx 0000 and the Companies Xxx
0000 and all other applicable laws and regulations
relevant in the context of the Offer;
(iii) provide each of the Arrangers with such information
regarding the progress of the Offer and the Rights
Issue as it may reasonably request;
(iv) not issue any press release or make any statement
during the course of the Offer which contains any
information or reference concerning this Agreement or
the Lenders without first obtaining
31
the prior approval of the information or reference
from the Arrangers, in each case such approval not to
be unreasonably withheld or delayed (it being
acknowledged that the SEC filing made in relation to
the Offer has already been approved);
(v) not declare the Offer unconditional as to acceptances
until it is entitled to acquire (whether pursuant to
the Offer or otherwise) more than 50 per cent. of the
Xxxxxxxx Shares; and
(vi) ensure that Xxxxxxxx is a wholly-owned Subsidiary of
the Parent within 150 days of the Unconditional Date.
(G) ENVIRONMENTAL LAWS: It will procure that all members of the
Group will comply with applicable laws relating to
environmental matters where non-compliance could reasonably be
expected to have a Material Adverse Effect, save that this
undertaking shall not apply to the Xxxxxxxx Group until after
the Clean-up Date.
(H) DISCHARGE OF SECURITY: The Borrower shall ensure that all
Encumbrances in relation to the Xxxxxxxx Group in existence on
the date that Xxxxxxxx becomes a Subsidiary of the Borrower
will, to the extent that they are not Permitted Encumbrances
except by reason of paragraph (e) of the definition thereof,
be released as soon as practicable and in any event within 90
days of the Unconditional Date.
(I) ACQUISITIONS: The Borrower shall ensure that until 31st March,
2000 no member of the Group may acquire any asset (excluding
the Xxxxxxxx Group and certain assets of the Curtco Freedom
Group) unless the aggregate debt element of the financing
costs of all acquisitions since the date of this Agreement is
less than pound sterling 200,000,000 (or its equivalent in
other currencies).
(J) UNDERWRITING AGREEMENT: The Borrower shall ensure that the
Underwriting Agreement will not be amended without the consent
of the Instructing Group. This prohibition does not apply to
amendments made to correct manifest errors.
17. EVENTS OF DEFAULT
17.1 EVENTS OF DEFAULT
Each of the following is an Event of Default:
(A) NON-PAYMENT OF SUMS DUE: The Borrower fails to pay an amount
due under this Agreement on its due date or (provided that
such failure is solely the result of any administrative or
technical error on the part of the Borrower or any bank)
within three Business Days of receiving written notice from
the Agent of non-payment.
32
(B) BREACH OF ANY OTHER OBLIGATIONS: The Borrower fails to perform
any other obligation under this Agreement and
(i) if the failure is capable of remedy, it is not
remedied within 15 Business Days of the Borrower
receiving written notice (specifying that it is a
Potential Event of Default) from the Agent to remedy
the same; or
(ii) if the failure is not capable of remedy, notice that
it is an Event of Default is given to the Borrower by
the Agent.
However, neither the 15 Business Day grace period nor the requirement
to give notice will apply to a breach of Clause 16(B).
(C) UNTRUE REPRESENTATIONS: Any representation or warranty made,
or deemed repeated, by the Borrower in this Agreement is
incorrect in any material respect when made or deemed
repeated, and, if capable of remedy, it is not remedied within
15 Business Days.
(D) CROSS-DEFAULT: Any Financial Indebtedness of the Group
(excluding, until after the CleanUp Date, the Xxxxxxxx Group)
exceeding pound sterling 25,000,000 (or the equivalent in
other currencies) in aggregate:
(i) is not paid or repaid when due or within any
applicable grace period; or
(ii) becomes (or is capable of being declared)
enforceable, redeemable or repayable prior to the due
date for payment thereof as a result of any actual
default (however described) by the relevant member of
the Group,
except, in either case, where there is a bona fide
dispute as to payment on the basis of favourable
independent legal advice or where such Financial
Indebtedness of the Xxxxxxxx Group becomes or is
capable of being declared enforceable, redeemable or
repayable solely as a result of the Offer or any
agreement that may be entered into in connection with
the Offer.
(E) ENFORCEMENT OF SECURITY: A receiver is appointed or an
encumbrancer takes possession of or a distress, execution or
other process is levied or enforced upon the whole or a
substantial part of the assets of the Borrower or any Material
Subsidiary and, in the case of a distress, execution or other
process, is not discharged, dismissed or stayed within 15
Business Days.
(F) INABILITY TO PAY DEBTS: The Borrower or any Material
Subsidiary is unable to pay its debts as they fall due or
makes admission of the same within the meaning of sections
123(1)(e) or 123(2) of the Insolvency Xxx 0000 or suspends
making payments on all or any class of its debts or
33
formally announces an intention to do so or a moratorium is
declared in respect of all or any class of its indebtedness.
(G) WINDING-UP ETC.: The Borrower or any Material Subsidiary takes
any corporate action or other steps are taken or legal
proceedings are started for:
(i) the winding-up, dissolution, liquidation or administration of
the Borrower or any Material Subsidiary, other than:
(a) a bona fide reconstruction or amalgamation of the
Borrower while solvent for which the Instructing
Group has given its prior approval (which shall not
be unreasonably withheld); or
(b) a voluntary solvent winding-up of a Subsidiary or
Subsidiary Undertaking of the Borrower where the
surplus assets of such Subsidiary or Subsidiary
Undertaking are distributed to another member of the
Group; or
(c) the presentation of a petition for winding-up by a
creditor on vexatious or frivolous grounds which is
discharged within 15 Business Days;
(ii) the composition, assignment or arrangement with any creditors
of the Borrower or any Material Subsidiary;
or
(iii) the appointment of an administrator, administrative receiver,
receiver, trustee or similar officer of its or of any or all
of its revenues and assets.
(H) MATERIAL ADVERSE CHANGE: There is an adverse change in the
financial condition of the Group taken as a whole which could
reasonably be expected to have a Material Adverse Effect.
(I) CESSATION OF BUSINESS: Other than in relation to a disposal
permitted by Clause 16(B) the Borrower or any Material
Subsidiary ceases to carry on its business.
(J) ANALOGOUS PROCEEDINGS: There occurs in relation to the
Borrower or any Material Subsidiary, in any country or
territory in which it carries on business, or to the
jurisdiction of whose courts it is subject any event which
corresponds in that country or territory with those mentioned
in paragraphs (F) and (G) subject to the same exceptions.
34
(K) RELATED FACILITY: An event of default occurs under the
Facility Agreement dated the date of this Agreement between
the parties to this Agreement in respect of a pound
sterling325,000,000 multi-currency sterling revolving credit,
xxxxxxxx xxxx acceptance and U.S.$880,000,000 term loan
facilities.
(L) UNLAWFULNESS: It becomes unlawful for the Borrower to perform
its payment obligations under this Agreement.
17.2 CONSEQUENCES OF AN EVENT OF DEFAULT
If an Event of Default occurs, the Agent may by notice to the Borrower:
(A) cancel the Facility and the Total Commitments; and/or
(B) demand immediate repayment of the Facility.
The Agent agrees to deliver a notice under this Clause 17.2 if an
Instructing Group instructs the Agent to do so. In the case of a demand
for repayment, the Borrower agrees to pay the Lenders in accordance
with the notice.
17.3 REPAYMENT
If there is an Event of Default, the Borrower agrees to pay on the date
repayment is due interest accrued on the Advance up to that date. If
the date repayment is due is not the last day of an Interest Period,
the Borrower will reimburse the Lender for the losses and expenses the
Lender has reasonably incurred, or will incur, as a result. The losses
and expenses may include those incurred in liquidating or otherwise
utilising amounts borrowed by the Lender to fund its participation in
the Loan. They may also include losses and expenses incurred in hedging
open positions resulting from the repayment.
17.4 INDEMNITY
If there is an Event of Default, the Borrower agrees to reimburse each
of the Agent and the Lenders for the losses and expenses it reasonably
incurs, or will incur, as a result, except where such losses or
expenses are caused by its misconduct or negligence.
18. EVIDENCE AND CERTIFICATES
18.1 EVIDENCE OF DEBT
The Agent shall maintain on its books a control account or accounts in
which shall be recorded (a) the amount of the Advance (and the name of
the Lender to whom such sum relates), (b) the amount of all principal,
interest and other sums due or to become due from the Borrower to any
of the Lenders under the Facility and each Lender's share therein and
(c) the amount of any sum received or recovered by the Agent hereunder
and each Lender's share therein.
35
18.2 CERTIFICATES
Each certificate delivered under this Agreement must contain reasonable
detail of the matters being certified, except that neither the Agent
nor any Lender is obliged to disclose its tax affairs or other
confidential information. Certificates delivered by the Agent will be
conclusive unless there is a proven error.
19. NOTICES
19.1 NATURE OF NOTICES
No notice delivered by the Borrower under this Agreement may be
withdrawn or revoked. Each notice delivered by it must be
unconditional. Unless this Agreement specifies otherwise, it must also
be given by an Authorised Signatory. All notices, consents,
certificates and other communications must be in writing.
19.2 DELIVERY OF NOTICES
Any notice or other communication given or made shall, if addressed as
set out in the signature page, in the absence of earlier receipt, be
deemed to have been duly given or made as follows:
(A) if in writing and delivered in person or by courier, on the
date it is delivered;
(B) if sent by facsimile transmission, on the date that
transmission is received in legible form (it being agreed that
the burden of proving receipt will be on the sender and will
not be met by a transmission report generated by the sender's
facsimile machine); and
(C) if sent by registered first class post or the equivalent
(return receipt requested), on the date that post is delivered
or its delivery is attempted.
Any notice or other communication given or made, or deemed to have been
given or made after the close of business on a Business Day will be
deemed not to have been given or made until the first following day
that is a Business Day.
19.3 NOTICES THROUGH THE AGENT
Each notice from the Borrower or a Lender will be delivered to the
Agent. The Agent agrees to pass on the details of notices received by
it to the appropriate recipient as soon as reasonably practicable.
19.4 ADDRESS DETAILS
Notices will be delivered to the address or number of the intended
recipient as set out on the signature page. The Borrower may change its
address or number
36
by notice to the Agent. The Agent may change its address or number by
notice to the Borrower and each Lender.
20. ASSIGNMENT
20.1 BORROWER
The rights and obligations of the Borrower under this Agreement are
personal to it. Accordingly they are not capable of assignment.
20.2 LENDERS
(A) No Lender may assign, novate or otherwise transfer its rights
under the Facility in whole or in part (including by way of
sub-participation).
(B) If, at any time, any Lender transfers its facility office and,
at the time of such transfer, there arises an obligation on
the part of the Borrower under Clause 10 to pay to such Lender
any amount in excess of the amount it would have then been
obliged to pay but for such transfer, then the Borrower shall
not be obliged to pay the amount of such excess.
20.3 DISCLOSURE OF INFORMATION
(A) A Lender may disclose to one of its Affiliates:
(i) a copy of this Agreement; and
(ii) any information which that Lender has acquired under
or in connection with this Agreement,
but only if the recipient of the information has agreed to
keep that information confidential on the terms of paragraph
(B) below.
(B) Each Lender shall keep confidential and shall not, without the
prior consent of the Borrower, use any information (other than
information which is publicly available other than as a result
of a breach by that Lender of this paragraph (B)) supplied by
or on behalf of the Borrower under or in connection with this
Agreement otherwise than in connection with this Agreement.
However, the restriction set out in this paragraph (B) shall
not apply to, and each Lender shall be entitled to disclose,
information:
(i) in connection with any legal proceedings arising out
of or in connection with this Agreement; or
(ii) if required to do so by an order of a court of competent
jurisdiction whether under any procedure for discovering
documents or otherwise; or
37
(iii) pursuant to any law or regulation in accordance with which
that Lender is require or accustomed to act; or
(iv) to a governmental, banking, taxation or other regulatory
authority of any competent jurisdiction, or
(v) to its accountants, legal advisers or other professional
advisers.
21. WAIVERS AND AMENDMENTS
21.1 WRITING REQUIRED
A waiver or amendment of a term of this Agreement will only be
effective if it is in writing.
21.2 AUTHORITY OF THE AGENT
If authorised by an Instructing Group, the Agent may grant waivers and
agree amendments with the Borrower. These waivers and amendments will
be granted on behalf of the Lenders and be binding on all of them,
including those which were not part of an Instructing Group. This
Clause 21.2 does not authorise the Agent to grant any waiver or agree
any amendment affecting any of the following:
(A) The amount of the Facility.
(B) The amount or method of calculation of interest if it might have
the effect of reducing any amount payable under this Agreement.
(C) The manner, currency or timing of repayment of the Loan or of the
payment of any other amount.
(D) An increase in any Commitment.
(E) The end of the period during which the Facility is available.
(F) The definition of "Instructing Group".
(G) Any requirement (including the one in this Clause 21.2) that all
the Lenders or a certain proportion of them consent to a matter or
deliver a notice.
(H) Clauses 3 (The Lenders), 13 (Sharing among Lenders) or 22 (The
Agent, the Arrangers and the Lenders).
Waivers or amendments affecting these matters require the consent of
all Lenders. Waivers or amendments affecting the obligations of the
Agent may not be made without its consent.
38
21.3 EXPENSES
The Borrower agrees to reimburse the Agent and each Lender for the
expenses they reasonably incur as a result of any request made by the
Borrower to waive or amend a term of this Agreement.
22. THE AGENT, THE ARRANGERS AND THE LENDERS
22.1 The Arrangers and each of the Lenders hereby appoints the Agent to act
as its agent in connection herewith and irrevocably authorises the
Agent to exercise such rights, powers and discretions as are
specifically delegated to the Agent by the terms hereof and in
connection with the Facility together with all such rights, powers and
discretions as are reasonably incidental thereto.
22.2 THE AGENT MAY:
(A) assume that:
(i) any representation made by the Borrower in connection
herewith is true;
(ii) no event which is or may become an Event of Default
or Potential Event of Default has occurred; and
(iii) the Borrower is not in breach of or default under its
obligations hereunder
unless it has actual notice to the contrary from any Party;
(B) (i) assume that the facility office of each Lender is
that identified with its signature below until it has
received from such Lender a notice designating some
other office of such Lender to replace its facility
office and act upon any such notice until the same is
superseded by a further such notice; and
(ii) treat each Lender as a Lender entitled to payments
under this Agreement until it has received not less
than five Business Days' notice from that Lender to
the contrary;
(C) engage and pay for the advice or services of any lawyers,
accountants, surveyors or other experts whose advice or
services may to it seem necessary, expedient or desirable and
rely upon any advice so obtained;
(D) rely as to any matters of fact which might reasonably be
expected to be within the knowledge of the Borrower upon a
certificate signed by or on behalf of such Borrower;
(E) rely upon any communication or document reasonably believed by
it to be genuine;
39
(F) refrain from exercising any right, power or discretion vested
in it as agent hereunder unless and until instructed by an
Instructing Group as to whether or not such right, power or
discretion is to be exercised and, if it is to be exercised,
as to the manner in which it should be exercised;
(G) refrain from acting in accordance with any instructions of an
Instructing Group to begin any legal action or proceeding
arising out of or in connection with the Facility until it
shall have received such security as it may require (whether
by way of payment in advance or otherwise) for all costs,
claims, expenses (including legal fees) and liabilities which
it will or may expend or incur in complying with such
instructions;
(H) act as agent or trustee or in a fiduciary or other capacity on
behalf of any other group of banks or financial institutions
providing facilities to any member or members of the group or
any associated company of any such member without regard to
the effect of exercising or omitting to exercise its rights,
discretions, powers and duties in such capacity on the
interests of the Lenders, and act or omit to act in such
capacity as freely in all respects as if the Agent had not
been appointed to act as agent for the Lenders; and
(I) subscribe for, hold or become beneficially entitled to, and
dispose of, shares or securities, or options or other rights
to and interests in shares or securities in any member or
members of the Group or any associated company of any such
member (and, in each case, may do so without liability to
account).
22.3 The Agent shall:
(A) promptly inform each Lender of the contents of any notice or
document received by it in connection with the Facilities in
its capacity as Agent hereunder from the Borrower;
(B) promptly notify each Lender of the occurrence of any Event of
Default or any default by the Borrower in the due performance
of or compliance with its obligations under this Agreement of
which the Agent has actual knowledge or actual notice;
(C) save as otherwise provided herein, act as agent hereunder in
accordance with any instructions given to it by an Instructing
Group, which instructions shall be binding on all the Lenders;
and
(D) if so instructed by an Instructing Group, refrain from
exercising any right, power or discretion vested in it as
agent hereunder.
22.4 Notwithstanding anything to the contrary expressed or implied herein,
neither the Agent nor the Arrangers shall:
(A) be bound to enquire as to:
40
(i) whether or not any representation made by the
Borrower in connection herewith is true;
(ii) the occurrence or otherwise of any event which is or
may become an Event of Default or Potential Event of
Default;
(iii) the performance by the Borrower of its obligations
hereunder; or
(iv) any breach of or default by the Borrower of or under
its obligations hereunder;
(B) be bound to account to the Lender for any sum or the profit
element of any sum received by it for its own account;
(C) be bound to disclose to any other person any information
relating to any member of the Group if such disclosure would
or might in its opinion constitute a breach of any law or
regulation or be otherwise actionable at the suit of any
person and the Agent shall be deemed not to have any actual
knowledge or actual notice of the contents of any information;
or
(D) be under any fiduciary duty towards any Lender or under any
obligations other than those for which express provision is
made herein.
If it is also a Lender, the Agent and the Arrangers have the same
rights and powers under the facilities as though it were not the Agent
or an Arranger.
22.5 To the extent that the Agent is not indemnified on demand by the
Borrower and without limiting the liability of the Borrower, each
Lender shall, from time to time on demand by the Agent, indemnify the
Agent against any and all costs, claims, expenses (including legal fees
and value added tax thereon) and liabilities which the Agent may incur,
otherwise than by reason of its own negligence or wilful misconduct, in
acting in its capacity as agent hereunder. The liability of each Lender
under this Clause 22.5 will be limited to the share of the total losses
and expenses which corresponds to that Lender's share of the Total
Commitments. If the losses or expenses are attributable to an activity
of the Agent which relates to only some of the Lenders the Agent may
instead notify the Lenders of a different sharing arrangement.
22.6 Neither the agent nor the arrangers accepts any responsibility for the
accuracy and/or completeness of any information supplied (including,
without limitation, the information memorandum) or representation made
by the borrower at any time, in each case whether written or oral, in
connection herewith or for the legality, effectiveness, adequacy or
enforceability of this agreement and the agent shall not be under any
liability as a result of taking or omitting to take any action or
failing to make any enquiries of whatever nature in relation to this
Agreement, save in the case of gross negligence or wilful misconduct.
41
22.7 Each Party agrees that it will not assert or seek to assert against any
director, officer or employee of the Agent or of any Arranger any claim
it might have against any of them in respect of the matters referred to
in Clause 22.6.
22.8 The agent and the arrangers may accept deposits from, lend money to and
generally engage in any kind of banking or other business with the
borrower and the other members of the group.
22.9 The Agent may resign its appointment notwithstanding its irrevocable
appointment hereunder at any time without assigning any reason therefor
by giving not less than 30 days' notice of its intention to do so to
the Borrower and the Lenders. The Agent may be removed by notice given
by an Instructing Group to the Agent and the Borrower. In either case,
an Instructing Group may appoint a successor acceptable to the Borrower
during such notice period but if it does not appoint such a successor
the Agent may (with the agreement of the Borrower) do so. Any such
successor must be a reputable and experienced bank or other financial
institution with an office in London. Upon any such successor as
aforesaid being appointed and accepting such appointment (but not
before), the retiring Agent shall be discharged from any further
obligation hereunder (save as specified below) as such and its
successor and each of the other parties hereto shall have the same
rights and obligations amongst themselves as they would have had if
such successor had been a party hereto in place of the retiring Agent.
The provisions of this Clause 22.9 shall continue in effect for the
benefit of the retiring Agent in respect of any actions taken or
omitted to be taken by it while it was acting as such Agent, but
subject thereto, and notwithstanding its retirement, the retiring Agent
shall remain liable for any action taken or omitted by it hereunder
while it was Agent. The retiring Agent shall make over to its successor
all such records as its successor requires to carry out its duties.
Notwithstanding the above, the Agent may resign its appointment
hereunder at any time by giving not less than 30 days' notice of its
intention to do so to the Borrower and the Lenders and may forthwith
appoint one of its affiliates as successor Agent.
22.10 It is understood and agreed by each Lender that it has itself been, and
will continue to be, solely responsible for making its own independent
appraisal of and investigations into the financial condition,
creditworthiness, condition, affairs, status and nature of the members
of the Group and the Xxxxxxxx Group and, accordingly, each Lender
warrants to the Agent and the Arrangers that it has not relied and will
not hereafter rely on either the Agent or the Arrangers:
(A) to check or enquire on its behalf into the adequacy, accuracy
or completeness of any information provided by and the
Borrower in connection with the Facility or the transactions
herein contemplated (whether or not such information has been
or is hereafter circulated to such Lender by the Agent or the
Arrangers); or
42
(B) to assess or keep under review on its behalf the financial
condition, creditworthiness, condition, affairs, status or
nature of any member of the Group and the Xxxxxxxx Group.
22.11 The Agent shall perform its agency functions hereunder through the
office identified with its signature below or such other office in
London (or, with the prior written consent of the Borrower, elsewhere)
as the Agent may from time to time select.
22.12 IN ACTING AS AGENT FOR THE LENDERS, THE AGENT'S AGENCY DIVISION SHALL
BE TREATED AS A SEPARATE ENTITY FROM ANY OTHER OF ITS DIVISIONS OR
DEPARTMENTS AND, NOTWITHSTANDING THE FOREGOING PROVISIONS OF THIS
CLAUSE 22.12, IF THE AGENT SHOULD ACT FOR ANY MEMBER OF THE GROUP IN
ANY CAPACITY IN RELATION TO ANY OTHER MATTER, ANY INFORMATION GIVEN BY
THAT MEMBER OF THE GROUP TO THE AGENT IN SUCH OTHER CAPACITY MAY BE
TREATED AS CONFIDENTIAL BY THE AGENT.
23. MISCELLANEOUS
23.1 EXERCISE OF RIGHTS
If the Agent or a Lender does not exercise a right or power when it is
able to do so, this will not prevent it exercising that right or power.
When it does exercise a right or power, it may do so again in the same
or a different manner. The Agent's and the Lenders' rights and remedies
under this Agreement are in addition to any other rights and remedies
it may have. Those other rights and remedies are not affected by this
Agreement.
23.2 COUNTERPARTS
There may be several signed copies of this Agreement. There is intended
to be a single Agreement and each signed copy is a counterpart of that
Agreement.
23.3 ENFORCEMENT COSTS
The Borrower shall within 7 days of demand pay to each Lender, the
Agent or an Arranger the amount of all costs and expenses (including
legal fees) incurred by it in connection with the enforcement of, or
the preservation of any rights under, this Agreement.
23.4 ACQUISITION FINANCING INDEMNITY
(A) The Borrower shall within 5 Business Days of demand indemnify
the Agent, each of the Arrangers and each Lender against any
loss or liability which that Party suffers or incurs as a
consequence of any litigation proceeding arising, pending or
threatened against the Party as a result of the Offer (whether
or not made) or of it agreeing to finance or refinance any
acquisition by the Borrower or any person acting in concert
with the Borrower of any Xxxxxxxx Shares or arising out of the
43
use of proceeds of this Facility ("relevant litigation")
except to the extent caused by its negligence or misconduct.
(B) The relevant Party shall notify the Borrower promptly upon
becoming aware, and in reasonable detail, of any relevant
litigation and shall keep the Borrower informed of its
progress.
(C) The relevant Party shall conduct any relevant litigation in
good faith and will give careful consideration to the views of
the Borrower in relation to the appointment of professional
advisers and the conduct of the litigation taking into account
(to the extent practicable) both its interests and the
interests of the Borrower.
(D) The relevant Party may only concede or compromise any claim in
respect of any relevant litigation if it is acting reasonably
and has consulted the Borrower before so doing.
(E) Notwithstanding paragraphs (A) to (D) above, a relevant Party
is not required to disclose to the Borrower any matter in
respect of which it is under a duty of non-disclosure or which
is subject to any attorney/client privilege, or which relates
to that Party's policy. Any information disclosed by a Party
to the Borrower under this Clause 23.4 shall be subject to the
same conditions of confidentiality as those set out in Clause
20.5 (Disclosure of information) in relation to disclosure to
potential transferees.
23.5 STAMP DUTIES
The Borrower shall pay and forthwith on demand indemnify each Lender or
the Agent or an Arranger against any liability it incurs in respect of
any stamp, registration and similar tax which is or becomes payable in
connection with the entry into, performance or enforcement of this
Agreement.
23.6 SEVERABILITY
If a provision of this Agreement is or becomes illegal, invalid or
unenforceable in any jurisdiction, that shall not affect:
(A) the legality, validity or enforceability in that jurisdiction
of any other provision of this Agreement; or
(B) the legality, validity or enforceability in other
jurisdictions of that or any other provision of this
Agreement.
24. LAW
This Agreement is to be governed by and construed in accordance with
English law.
44
IN WITNESS whereof this Agreement has been signed on behalf of the
Borrower and the Lenders.
45
SCHEDULE 1
LENDERS AND COMMITMENTS
LENDER COMMITMENT
[pound sterling]
----------------
BARCLAYS BANK PLC 120,000,000
DEN DANSKE BANK AKTIESELSKAB 120,000,000
-----------
DEUTSCHE BANK AG LONDON 120,000,000
-----------
360,000,000
===========
46
40
SCHEDULE 2
CONDITIONS PRECEDENT
Part 1
General
1. A copy of the Memorandum and Articles of Association and Certificate of
Incorporation of the Borrower. The copy must be certified by a director
or the secretary of the Borrower to be true, complete and in full force
and effect.
2. A copy of a resolution of the board of directors of the Borrower
appointing the Treasury Committee and granting it authority to enter
into this Facility on behalf of the Borrower. A copy of a resolution of
the Treasury Committee approving the Facility, authorising the
signature and delivery of this Agreement and associated documents and
appointing Authorised Signatories. The copies must be certified by a
director or the secretary of the Borrower to be true, complete and in
full force and effect.
3. Specimen signatures of Authorised Signatories appointed by the
resolution referred to in paragraph 2 above. These signatures must be
certified by a director or the secretary of the Borrower to be genuine.
4. A legal opinion from Xxxxx & Overy, legal advisers to the Arrangers, in
the form set out in Schedule 5.
5. Confirmation from Lloyds TSB Registrars that all proceeds of the Rights
Issue received by Lloyds TSB Registrars will be paid to the Lenders as
soon as they are received.
6. A certificate from a director of the Borrower confirming that on the
assumption that the resolution referred to in paragraph 2 of Part 2
below is passed utilisation of the Facility in full would not cause any
borrowing limit binding on it to be exceeded and that all defaults that
may have been caused in the Borrower's existing banking facilities as a
result of the Offer have been waived.
7. A copy of the Underwriting Agreement. The copy must be certified by a
director or the secretary of the Borrower to be genuine and complete.
PART 2
OTHER DOCUMENTATION
1. A copy of the Offer Document, the Shareholders Circular and the Press
Release. The copies must be certified by a director or the secretary of
the Borrower to be genuine and complete.
2. Evidence that the Borrower's shareholders have approved the acquisition
of Xxxxxxxx and the increase in the Borrower's borrowing powers.
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3. Evidence that the Borrower, or its subsidiary, has accepted for payment
the Xxxxxxxx Shares sufficient to satisfy the Minimum Condition (as
defined in the Offer) tendered and not withdrawn under the Offer or
under a stockholders agreement dated 15th December, 1998.
4. Evidence that the bilateral loan facilities entered into by the
Borrower with various banks on or around 30th November, 1998 have been
cancelled with effect from the Unconditional Date.
5. Evidence that the Rights Issue has become unconditional and the new
shares admitted to listing in accordance with section 7.1 of the rules
of the London Stock Exchange.
6. Confirmation that waiting periods under the Xxxx Xxxxx Xxxxxx Anti
Trust Improvement Act 1976 (as amended) and any regulations made under
it in relation to the Offer having expired.
7. A copy of the Xxxxxxxx Solicitation/Recommendation Statement on
Schedule 14 D-9.
8. Evidence that all necessary regulatory approvals for the Offer and the
Rights Issue have been received.
9. Evidence that all conditions to the Underwriting Agreement have been
satisfied or waived.
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SCHEDULE 3
FORM OF ADVANCE REQUEST
[Date]
Barclays Bank PLC
[Address]
Dear Sirs
pound sterling BRIDGING FACILITY DATED 15TH DECEMBER, 1998
We refer to the above agreement (the "Agreement"). Terms defined in the
Agreement have the same meaning in this confirmation.
We would like the Lenders to make the Advance under the Agreement as follows:
Advance Date:
Amount of the Advance:
Interest Period:
Settlement Instructions:
Payments by EMAP
Bank
Sort Code/Swift Code
Account number
Account name
Payments to EMAP
Bank
Sort Code/Swift Code
Account number
Account name
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We confirm that on [date of request] and on the Advance Date there was and will
be no Event of Default or Potential Event of Default which has occurred or is
occurring or would result from the Advance.
Yours faithfully
AUTHORISED SIGNATORY
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SCHEDULE 4
COSTS RATE
The Costs Rate is an addition to the interest rate on an Advance to compensate
the Lenders for the cost attributable to an Advance resulting from the
imposition from time to time under or pursuant to the Bank of England Act 1998
(the Act) and/or by the Bank of England and/or the Financial Services Authority
(the FSA) (or other United Kingdom governmental authorities or agencies) of a
requirement to place non-interest-bearing or Special Deposits (whether interest
bearing or not) with the Bank of England and/or pay fees to the FSA calculated
by reference to liabilities used to fund the Advance.
The Costs Rate will be the rate determined by the Agent to be equal to the
arithmetic mean (rounded upward, if necessary, to four decimal places) of the
respective rates notified by each of the Reference Banks to the Agent as the
rate resulting from the application (as appropriate) of the following formula:
XL + S(L - D) + F x 0.01
------------------------
100 - (X + S)
where on the day of application of the formula:
X is the percentage of Eligible Liabilities (in excess of any
stated minimum) by reference to which such Reference Bank is
required under or pursuant to the Act to maintain cash ratio
deposits with the Bank of England;
L is the percentage rate per annum at which sterling deposits
for the relevant Interest Period are offered by such
Reference Bank to leading banks in the London Interbank
Market at or about 11.00 a.m. (London time) on that day;
F is the rate of charge payable by such Reference Bank to the
FSA pursuant to paragraph 2.02/2.03 of the Fees Regulations
(but where for this purpose, the figure at paragraph
2.02b/2.03b shall be deemed to be zero) and expressed in
pounds per pound sterling 1 million of the Fee Base of such
Reference Bank;
S is the level of interest-bearing Special Deposits, expressed
as a percentage of Eligible Liabilities, which such
Reference Bank is required to maintain by the Bank of
England (or other United Kingdom governmental authorities or
agencies); and
D is the percentage rate per annum payable by the Bank of
England to such Reference Bank on Special Deposits.
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(X, L, S and D are to be expressed in the formula as numbers and not as
percentages. A negative result obtained from subtracting D from L shall be
counted as zero.)
If any Reference Bank fails to notify any such rate to the Agent, the Costs Rate
shall be determined on the basis of the rate(s) notified to the Agent by the
remaining Reference Bank(s).
The Costs Rate attributable to an Advance or other sum for any period shall be
calculated at or about 11.00 a.m. (London time) on the first day of such period
for the duration of such period.
The determination of the Costs Rate in relation to any period shall, in the
absence of manifest error, be conclusive and binding on all parties hereto.
If there is any change in circumstance (including the imposition of alternative
or additional requirements) which in the reasonable opinion of the Agent renders
or will render either of the above formulae (or any element thereof, or any
defined term used therein) inappropriate or inapplicable, the Agent (following
consultation with the Borrower and an Instructing Group) shall be entitled to
vary the same. Any such variation shall, in the absence of manifest error, be
conclusive and binding on all parties and shall apply from the date specified in
such notice.
For the purposes of this Schedule:
The terms "ELIGIBLE LIABILITIES" and "SPECIAL DEPOSITS" shall bear the
meanings ascribed to them under or pursuant to the Act or by the Bank
of England (as may be appropriate), on the day of the application of
the formula.
"FEE BASE" has the meaning ascribed to it for the purposes of, and
shall be calculated in accordance with, the Fees Regulations.
"FEES REGULATIONS" means, as appropriate, either:
(a) the Banking Supervision (Fees) Regulations 1998; or
(b) such regulations as from time to time may be in force,
relating to the payment of fees for banking supervision in
respect of periods subsequent to 31 March 1999.
Any reference to a provision of any statute, directive, order or
regulation herein is a reference to that provision as amended or
re-enacted from time to time.
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SCHEDULE 5
FORM OF LEGAL OPINION FROM LENDERS' ADVISER
To: The Agent and the Lenders (as at the date of the Credit Agreement)
[Date]
Dear Sirs,
EMAP plc (the "Company") - Bridging Facility Agreement
dated 15th December, 1998 (the "Credit Agreement")
We have received instructions from and participated in discussions with [ ] in
connection with the Credit Agreement.
Unless otherwise defined in this opinion, terms defined in the Credit Agreement
have the same meaning in this opinion.
For the purposes of this opinion we have examined the following documents:-
(a) a signed copy of the Credit Agreement;
(b) a certified copy of the memorandum and articles of association
and certificate of incorporation of the Company;
(c) a certified copy of the minutes of a meeting of the board of
directors of the Company held on [ ] establishing a
committee of the Board; and
(d) a certified copy of the minutes of a meeting of the committee
of the Board of the Company held on [ ].
On [ ], 1998, we carried out a search of the Company at the Companies
Registry.
On [ ], 1998, we made a telephone search of the Company at the winding-up
petitions at the Companies court.
The above are the only documents or records we have examined and the only
searches and enquiries we have carried out.
We assume that:
(i) the Company is not unable to pay its debts within the meaning
of section 123 of the Insolvency Act, 1986 at the time it
enters into the Credit Agreement and will not as a consequence
of the entry into and performance of the Credit Agreement, be
unable to pay its debts within the meaning of that section;
(ii) no step has been taken to wind up the Company or appoint a
receiver in respect of it or any of its assets although the
searches of the Companies Registry;
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referred to above give no indication that any winding-up order
or appointment of a receiver has been made;
(iii) all signatures and documents are genuine;
(iv) all documents are and remain up-to-date;
(v) the correct procedure was carried out at the board and
committee meetings referred to in paragraphs (c) and (d)
above; for example, there was a valid quorum, all relevant
interests of directors were declared and the resolutions were
duly passed at each of the meetings;
(vi) any restrictions on borrowings or guarantees in the Company's
Articles of Association would not be contravened by the entry
into and performance by the Company of the Credit Agreement;
(vii) the Credit Agreement has been duly executed on behalf of the
Company by the persons authorised by the resolutions passed at
the meetings referred to in paragraph (d) above; and
(viii) the Credit Agreement is a legally binding, valid and
enforceable obligation of the parties to it (other than the
Company).
Subject to the qualifications set out below and to any matters not
disclosed to us, it is our opinion that, so far as the present laws of
England are concerned:
(1) STATUS: the Company is a company incorporated with limited
liability under the laws of England and is not in liquidation.
(2) POWERS AND AUTHORITY: the Company has the corporate power to
enter into and perform the Credit Agreement and has taken all
necessary corporate action to authorise the execution,
delivery and performance of the Credit Agreement.
(3) LEGAL VALIDITY: The Credit Agreement constitutes the legally binding,
valid and enforceable obligation of the Company.
(4) NON-CONFLICT: The execution, delivery and performance by the Company of
the Credit Agreement to which it is a party will not violate any
provision of (i) any existing English law applicable to companies
generally, or (ii) the memorandum or articles of association of the
Company.
(5) CONSENTS: No authorisations of governmental, judicial or public bodies
or authorities in England are required by the Company in connection
with the performance, validity or enforceability of the Credit
Agreement.
(6) TAXES: All payments due from the Company under the Credit Agreement may
be made without deduction of any United Kingdom taxes, if, in the case
of any interest, the person that made the Advance to which the interest
relates was, at
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the time of making the relevant Advance, a "bank" as defined in section
840A of the Income and Corporation Taxes Act 1988 and the person
beneficially entitled to the interest is within the charge to United
Kingdom corporation tax as respects that interest at the time the
interest is paid.
(7) REGISTRATION REQUIREMENTS: It is not necessary or advisable to file,
register or record the Credit Agreement in any public place or
elsewhere in England.
(8) STAMP DUTIES: No stamp, registration or similar tax or charge is
payable in England in respect of the Credit Agreement.
This opinion is subject to the following qualifications:
(i) This opinion is subject to all insolvency and other laws affecting the
rights of creditors or secured creditors generally.
(ii) No opinion is expressed on matter of fact.
(iii) We assume that no foreign law affects the conclusions stated above.
(iv) The term "ENFORCEABLE" means that a document is of a type and form
enforced by the English courts. It does not mean that each obligation
will be enforced in accordance with its terms. Certain rights and
obligations may be qualified by the nonconclusively of certificates,
doctrines of good faith and fair conduct, the availability of equitable
remedies and other matters, but in our view these qualifications would
not defeat your legitimate expectations in any material respect.
This opinion is given for your sole benefit and may not be relied upon by or
disclosed to any other person.
Yours faithfully,
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SIGNATURES
Parent
EMAP PLC
Address: 0 Xxxxxxx Xxxxx, Xxxxxxx Xxxx, Xxxxxxxxxxxx XX0 0XX
Telephone Number: 00000 000000
Fax Number: 00000 000000
Attention: Group Treasurer
By:
Name: Xxxxx Wolmsley
Position: Company Secretary
LENDERS
BARCLAYS BANK PLC
Address: 00 Xxxxxxx Xxxxxx, Xxxxxx
Telephone Number: 0000 000 0000
Fax Number: 0000 000 0000
Attention: Large Corporate Banking (f.a.o. Xxx Xxxxxxx)
By:
Name: Xxx Xxxxxxx
Position: Relationship Director
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DEN DANSKE BANK AKTIESELSKAB
Address: 00 Xxxx Xxxxxxx Xxxxxx, Xxxxxx XX0X 0XX
Telephone Number: 0000 000 0000
Fax Number: 0000 000 0000
Attention: Xxxxxx Xxxx/Xxxx Xxxxxxxxx
By:
Name: X X Xxxxxxx A Xxxxxxxxx
Position: Head of Syndications Manager
DEUTSCHE BANK AG LONDON
Address: 0 Xxxxxxxxxxx, Xxxxxx XX0
Telephone Number: 0000 000 0000
Fax Number: 0000 000 0000 or 4924
Attention: Xxxxx Xxxx, Credit Administration
By:
Name: J Xxxxxxx X X Xxxxxx
Position: Director Senior Associate Director
ARRANGERS
BARCLAYS CAPITAL
Address: 5 Xxx Xxxxx Xxxxxxxxx, Xxxxxx Xxxxx, Xxxxxx X00 0XX
Telephone Number: 0000 000 0000
Fax Number: 0000 000 0000
Attention: Global Syndications and Loan Distribution
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By:
Name: X. X. Xxxxxx
Position: Director
DEN DANSKE BANK AKTIESELSKAB
Address: 00 Xxxx Xxxxxxx Xxxxxx, Xxxxxx XX0X 0XX
Telephone Number: 0000 000 0000
Fax Number: 0000 000 0000
Attention: Xxxxxx Xxxx/Xxxx Xxxxxxxxx
By:
Name: X X Xxxxxxx A Xxxxxxxxx
Position: Head of Syndications Manager
DEUTSCHE BANK AG LONDON
Address: 0 Xxxxxxxxxxx, Xxxxxx XX0
Telephone Number: 0000 000 0000
Fax Number: 0000 000 0000 or 4924
Attention: Xxxxx Xxxx, Credit Administration
By:
Name: X. X. Xxxxxx J Xxxxxxx
Position: Senior Associate Director Director
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AGENT
BARCLAYS BANK PLC
Address: 5 Xxx Xxxxx Xxxxxxxxx, Xxxxxx Xxxxx, Xxxxxx X00 0XX
Telephone Number: 0000 000 0000
Fax Number: 0000 000 0000
Attention: GSU re: Emap plc
By:
Name: X. X. Xxxxxx
Position: Director
