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CONFORMED COPY
Dated 15th December, 1998
EMAP PLC
AS BORROWER, PARENT AND GUARANTOR
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 325,000,000 MULTI-CURRENCY STERLING REVOlving Credit,
XXXXXXXX XXXX ACCEPTANCE AND U.S.$880,000,000 DOLLAR TERM LOAN FACILITIES
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For EMAP plc For the Lenders
XXXXXXXXX AND MAY XXXXX & XXXXX
00 XXXXXXXXXX XXXXXX ONE NEW CHANGE
LONDON EC2V 5DB XXXXXX XX0X 0XX
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CONTENTS
CLAUSE PAGE
1. INTERPRETATION 1
2. THE FACILITIES 19
3. THE BORROWERS 20
4. THE LENDERS 21
5. FEES AND EXPENSES 22
6. CANCELLATION 22
7. ADVANCE OF FUNDS 23
8. CURRENCY OPTIONS FOR ADVANCES 27
9. INTEREST ON ADVANCES 29
10. REPAYMENT OF ADVANCES 31
11. PREPAYMENT OF ADVANCES 31
12. ACCEPTANCE FACILITY 33
13. MARKET DISRUPTION AND ALTERNATIVE INTEREST RATES 37
14. CHANGES OF CIRCUMSTANCES 39
15. PAYMENTS 44
16. LATE PAYMENT 47
17. SHARING AMONG LENDERS 47
18. GUARANTEE 49
19. GUARANTOR'S INDEMNITY 52
20. RELEASE OF GUARANTORS 52
21. REPRESENTATIONS 52
22. INFORMATION COVENANTS 55
23. FINANCIAL COVENANTS 00
0
00. XXXXXXX XXXXXXXXX 00
00. EVENTS OF XXXXXXX 00
00. EVIDENCE AND CERTIFICATES 63
27. NOTICES 63
28. ASSIGNMENT 64
29. ADDITIONAL BORROWERS 68
30. WAIVERS AND AMENDMENTS 69
31. THE AGENT, THE ARRANGERS AND THE LENDERS 70
32. MISCELLANEOUS 74
33. LANGUAGE 76
34. JURISDICTION 77
35. LAW 77
SCHEDULE 1 LENDERS AND COMMITMENTS 79
SCHEDULE 2 CONDITIONS PRECEDENT 80
SCHEDULE 3 FORM OF ADVANCE REQUEST 83
SCHEDULE 4 FORM OF ACCEPTANCE UTILISATION REQUEST 85
SCHEDULE 5 FORM OF ADDITIONAL BORROWER AGREEMENT 87
SCHEDULE 6 FORM OF ADDITIONAL GUARANTOR AGREEMENT 88
SCHEDULE 7 FORM OF POWER OF ATTORNEY 92
SCHEDULE 8 FORM OF XXXX OF EXCHANGE 94
SCHEDULE 9 COSTS RATE 96
SCHEDULE 10 FORM OF LEGAL OPINION FROM ARRANGERS' ADVISER 98
SCHEDULE 11 FORM OF COMPLIANCE CERTIFICATE 101
SCHEDULE 12 NOVATION CERTIFICATE 103
SCHEDULE 13 TIMETABLES 104
SIGNATURES 107
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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,
parent and guarantor;
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 Parent, the Lenders are willing to provide facilities to
any Borrower on the terms of this Agreement. The facilities comprise a pound
sterling 325,000,000 Multi- currency revolving credit facility, incorporating a
revolving xxxxxxxx xxxx acceptance facility and a $880,000,000 multi-currency
term loan facility. The facilities are to be guaranteed by the Guarantors.
The parties agree as follows:
1. INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"ACCEPTANCE COMMISSION RATE" means the rate equal to the Applicable
Margin that would have been applicable to any Advance made on the
relevant Acceptance Utilisation Date. Acceptance Commission Rate is
calculated on the aggregate amount of Bills for the period from that
Acceptance Utilisation Date to the maturity date of such Bills on the
basis of a 365-day year and the actual number of days in such period.
"ACCEPTANCE UTILISATION" means a utilisation by a Borrower of the Xxxx
Acceptance Facility.
"ACCEPTANCE UTILISATION DATE" means the date, or proposed date, of a
utilisation of the Xxxx Acceptance Facility.
"ACCEPTANCE UTILISATION REQUEST" means a request signed by one
Authorised Signatory of the Parent or a relevant Nominated Borrower to
utilise the Xxxx Acceptance Facility, substantially in the form set out
in Schedule 4.
"ADDITIONAL BORROWER AGREEMENT" means an agreement in the form set out
in Schedule 5 with such amendments as the Agent may reasonably require.
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"ADDITIONAL GUARANTOR AGREEMENT" means an agreement in the form set out
in Schedule 6 with such amendments as the Agent may reasonably require.
"ADVANCE" means a Revolving Advance or a Term Advance.
"ADVANCE DATE" means the date, or proposed date, of an Advance.
"ADVANCE REQUEST" means a request signed by one Authorised Signatory of
the Parent or a relevant Nominated Borrower for an 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
Parent and the Lenders. If there is a change of Agent in accordance
with Clause 31.9, "AGENT" will instead mean the new Agent appointed
under that Clause.
"APPLICABLE MARGIN" shall have the meaning given in Clause 9.6.
"ARRANGERS" means Barclays Capital, Den Danske Bank Aktieselskab and
Deutsche Bank AG London in their capacity as arrangers of the
Facilities.
"AMORTISATION DATE" means each date for the repayment of an instalment
of the Term Loan.
"AUTHORISED SIGNATORY" means any person authorised to sign documents on
behalf of any Obligor by virtue of a resolution of the directors (or,
in the case of the Parent, a resolution of the Treasury Committee ) of
that party, a certified copy of which has been delivered to the Agent.
A person will cease to be an Authorised Signatory upon notice by the
appointing party to the Agent.
"AVAILABLE COMMITMENT" means the amount of a Lender's Commitment which
is available to a Borrower. On any day it is the Lender's Commitment on
that day less that Lender's participation in all Advances and Bills
outstanding at such time in respect of the Facilities. Participations
in Term Advances in a currency other than dollars will be taken at
their Original Dollar Amount. Participations in Revolving
Advances in a currency other than sterling will be taken at their
Original Sterling Amount.
"AVAILABLE RELEVANT COMMITMENT" means, in respect of a Facility, the
Available Commitment.
"XXXX" means a xxxxxxxx xxxx of exchange accepted, or to be accepted,
under the Xxxx Acceptance Facility.
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"XXXX ACCEPTANCE FACILITY" means the revolving xxxxxxxx xxxx acceptance
facility referred to in Clause 2.1(A), the terms of which are set out
in this Agreement.
"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 Parent 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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"BORROWERS" means each of the Parent and any Nominated Borrower and a
"BORROWER" means any one of them.
"BREAKAGE AMOUNT" means in relation to a Lender's participation in an
Advance an amount equal to the (a) principal of that Lender's
participation in that Advance plus (b) interest accrued on the Advance
(or relevant part thereof) to the Repayment Date(s) of the Advance (or,
in the case of a Term Advance, the last day of the then current
Interest Period of that Term Advance) 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 Repayment Date(s) of the
Advance (or, in the case of a Term Advance, the last day of the then
current Interest Period of that Term Advance) as the relevant Lender
may reasonably determine.
"BRIDGING FACILITY" means the Bridging Loan Facility of even date
herewith between the Parent and the financial institutions named
therein.
"BUSINESS DAY" means a day (other than a Saturday or a Sunday) on which
banks are open for general interbank business in London and, if a
payment in dollars is required, in New York, and, if a payment in an
Optional Currency is required (other than sterling or dollars), in the
principal financial centre of the country of that Optional
Currency, and if a payment in euros is required, means a day on which
TARGET is operating.
"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.
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"CLEAN-UP DATE" means the date falling 90 days from the Unconditional
Date except for the purpose of Clause 21.1(J) and Clause 24.1(I) when
it means a date falling 180 days from the Unconditional Date.
"CODE" means, on any date, the United States Internal Revenue Code of
1986, as amended and the regulations promulgated and rulings issued
thereunder, all as the same may be in effect at such date.
"COMMITMENT" means in relation to a Lender the aggregate of the
Revolving Credit Commitment and the Term Loan Commitment of that
Lender.
"COMMITMENT EXPIRY DATE" means the date falling 150 days after the date
of this Agreement.
"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 lessors (or from lessees) under
finance leases or to hirers (or from customers) under hire-purchase
agreements all determined in accordance with GAAP. For the purpose of
Clause 23(B), adjustments shall be made for the pro forma effect of any
disposal or acquisition during the relevant period.
"CONSOLIDATED NET INTEREST PAYABLE" means the amount (if any) by which
the aggregate of all amounts of interest and equivalent financial
expenses of the Group, calculated on a consolidated basis, attributable
to the specified period (whether payable in that period or a subsequent
period) including (without affecting the generality of the foregoing)
any discount, fees and any element attributable to finance charges
comprised in payments to lessors under finance leases or to hirers
under hire-purchase agreements exceeds the aggregate of all amounts of
interest accrued (excluding, in each case, interest payable between
members of the Group) to the Group, calculated on a consolidated basis,
attributable to such period (whether payable in that period or a
subsequent period) including (without affecting the generality of the
foregoing) any discount, fees and any element attributable to finance
charges comprised in payments from lessees under finance leases 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 Parent'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:
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(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 Parent'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 Parent'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 Parent's
share capital since the date of such Latest Annual
Accounts. For these purposes, any unissued shares in the
Parent 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.
"CONTROLLED GROUP" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated)
under common control which, together with any Borrower are treated as a
single employer under Section 414 of the Code.
"COSTS RATE" means a rate per annum determined by the Agent and
notified to the Parent and, where appropriate, the Nominated Borrower.
This rate will be applied to an outstanding amount for a particular
period. It will be calculated in accordance with Schedule 9.
"DOLLAR EQUIVALENT AMOUNT" means the amount in an Optional Currency
(other than dollars) equivalent to a specified amount in dollars. The
"DOLLAR EQUIVALENT AMOUNT" will be calculated using the Exchange Rate
applicable to the date on which the amount in the Optional Currency is
to be or was advanced.
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"EURO" OR "E" means the currency introduced in the Third Stage.
"ELIGIBLE BANK" means, at any time, a bank whose acceptance of a xxxx
of exchange would, if such xxxx of exchange were otherwise eligible,
make such xxxx of exchange eligible for re-discount at the Bank of
England.
"ELIGIBLE XXXX" means a xxxxxxxx xxxx of exchange eligible for
re-discount at the Bank of England.
"ELIGIBLE XXXX DISCOUNT RATE" means a discount rate per annum
determined by the Agent and notified to the Parent and, where
appropriate, the Nominated Borrower. This rate will be applied to the
face amount of a Xxxx for the Tenor of that Xxxx to determine the
amount payable to the Parent or Nominated Borrower in respect of that
Xxxx. It will be based on the rate (as determined by the Agent) at
which Eligible Bills of a comparable tenor and face amount could be
discounted in the London discount market on the Acceptance Utilisation
Date on which that Xxxx is accepted. The rate notified will be the rate
as at the Prescribed Time on the Acceptance Utilisation Date. The Agent
will calculate the aggregate of:
(A) this rate; and
(B) the Applicable Margin.
"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.
"ERISA" means the U.S. Employee Retirement Income Security Act of 1974,
as amended from time to time and any successor statute of similar
import, together with any rule or regulation issued thereunder.
"EVENT OF DEFAULT" has the meaning given in Clause 25.1.
"EXCHANGE RATE" means the Agent's spot rate of exchange for converting
an amount in sterling into dollars, or an amount in sterling or dollars
into an amount in another Optional Currency, or vice versa.
"FACILITIES" means the Revolving Credit Facility and the Term Loan
Facility and "FACILITY" means either one of them.
"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;
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(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 Parent, its Subsidiaries and Subsidiary Undertakings.
"GUARANTEE" means a guarantee of amounts due under this Agreement given
in accordance with Clause 18.
"GUARANTORS" means each member of the Group which has executed and
delivered an Additional Guarantor Agreement in accordance with Clause
18.11 and "GUARANTOR" means any one of them.
"HOLDING COMPANY" has the meaning described in section 736 of the
Companies Xxx 0000.
"INFORMATION MEMORANDUM" means an information memorandum prepared by or
on behalf of the Parent for the purposes of general syndication of the
Facilities.
"INSTRUCTING GROUP" means, at any time, Lenders:
(a) whose participation in the Loan then outstanding and whose undrawn
uncancelled Commitments aggregate more than 66 2/3 per cent. of the
aggregate of the Loan and Uncancelled Facility Amount; or
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(b) if there is no Loan then outstanding, whose Commitments then
aggregate more than 66 2/3 per cent. of the Total Commitments; or
(c) if there is no Loan then outstanding and the Total Commitments have
been reduced to nil, whose Commitments aggregated more than 66 2/3
per cent. of the Total Commitments immediately before the
reduction.
For the purposes of any calculation:
(a) Advances shall be taken at their Original Sterling Amount or
Original Dollar Amount, as appropriate; and
(b) the Original Dollar Amount of the Term Advances will be notionally
converted into sterling at the Exchange Rate determined by the
Agent on the day of calculation.
For so long as the original Lenders are the only Lenders references in
this definition to "66 2/3" will be deleted and replaced by "100".
"INTEREST PERIOD" means each period determined in accordance with
Clause 9.
"LATEST ANNUAL ACCOUNTS" means the annual audited consolidated accounts
of the Parent most recently submitted to the Agent pursuant to Clause
22(A) or, prior to the submission of any such accounts, such accounts
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 five Business Days'
notice. A Lender which acquires an interest in these Facilities by way
of assignment, novation or transfer will become a "LENDER" and will act
through its office notified to the Agent or such other as 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 any 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 that page of the Telerate
Screen which displays British Bankers Association Interest
Settlement Rates for deposits in the relevant currency 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 such currency as the
Agent, after consultation with the Parent, shall select,
provided that, if no such rate appears on the relevant page
for deposits in the specified currency and/or of the specified
term, LIBOR shall be determined in accordance with the
provisions of paragraph (ii) below; or
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(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 the specified currency 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 CURRENCY" means the
currency of such Advance or, as the case may be, unpaid sum, and
"SPECIFIED TERM" means the term of such Advance or, as the case may be,
the period in respect of which LIBOR falls to be determined in relation
to such unpaid sum.
"LOAN" means the aggregate of the principal amount borrowed and not
repaid under the Facilities and the aggregate face amount of
outstanding Bills.
"MATERIAL ADVERSE EFFECT" means any matter having a material adverse
effect on the ability of the Obligors taken as a whole to comply with
their payment obligations under this Agreement or the ability of the
Parent to comply with its obligations under Clause 23.
"MATERIAL SUBSIDIARY" means any Subsidiary or Subsidiary Undertaking of
the Parent 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 fifth anniversary of the date of this
Agreement.
"NET CONSOLIDATED BORROWINGS" means the aggregate of the amount of
Borrowed Monies Indebtedness less Cash Investments.
"NOMINATED BORROWER" means any Subsidiary or Subsidiary Undertaking of
the Parent from time to time which has been nominated by the Parent as
a borrower under this Agreement.
"OBLIGOR" means the Parent, any Borrower and any Guarantor.
"OFFER" means the tender offer for the Xxxxxxxx Shares made or to be
made by the Parent (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
Parent to shareholders in Xxxxxxxx in respect of the Offer.
"OFFER PERIOD" means the period from the date hereof until the earlier
of (i) the day which falls 150 days after the date of this Agreement
and (ii) the date on which the Offer lapses or is withdrawn.
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"OPTIONAL CURRENCY" means (i) in relation to the Revolving Credit
Facility, dollars and, following the start of the Third Stage, euros
and any other currency (other than sterling) which is freely
transferable and freely convertible into sterling and (ii) in relation
to the Term Loan Facility, sterling and, following the start of the
Third Stage, euros and any currency (other than dollars) which is
freely transferable and freely convertible into dollars.
"ORIGINAL DOLLAR AMOUNT" means the dollar equivalent of an amount in an
Optional Currency (other than dollars). The "ORIGINAL DOLLAR AMOUNT"
will be calculated using the Exchange Rate applicable to the date three
Business Days prior to the date on which the amount in the Optional
Currency was advanced.
"ORIGINAL STERLING AMOUNT" means the sterling equivalent of an amount
in an Optional Currency (other than sterling). The "ORIGINAL STERLING
AMOUNT" will be calculated using the Exchange Rate applicable to the
date three Business Days prior to the date on which the amount in the
Optional Currency was advanced.
"PARENT" means EMAP plc, the first party to this Agreement.
"PARTICIPATING MEMBER STATE" means any member state of the European
Union which adopts the euro in accordance with the Treaty establishing
the European Community.
"PARTY" means a party to this Agreement.
"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 in existence at the date hereof and notified
to the Agent prior to the date of this Agreement provided that
the principal amount thereby secured has not been increased
since the date of this Agreement;
(d) 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;
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(e) all Encumbrances over or affecting any property of any company
or other legal entity which becomes a Subsidiary or Subsidiary
Undertaking of the Parent 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 Parent 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 Parent
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 Parent;
(f) any Encumbrance which the Agent (acting on the instructions of
the Instructing Group) has at any time agreed shall be a
Permitted Encumbrance;
(g) 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;
(h) any Encumbrance securing Borrowed Monies Indebtedness incurred
by a member of the Group for the financing of a specific
project or projects 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;
(i) 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;
(j) 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 (d) or (e) 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
(k) any Encumbrance (not falling within paragraphs (a) to (j)
above) the principal amount secured by which, when aggregated
with the principal
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amount secured by all other Encumbrances
falling within this paragraph (k), 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).
"PLAN" means an employee pension benefit plan which is covered by Title
IV of ERISA or subject to the minimum funding standards under Section
412 of the Code as to which a Borrower or Guarantor or any member of
the Controlled Group has any obligation to contribute.
"POTENTIAL EVENT OF DEFAULT" means an event or state of affairs which
is mentioned in Clause 25.1 but which has not become an Event of
Default because a period has not elapsed and/or a notice has not been
given.
"PRESCRIBED TIME" means the times for certain actions under this
Agreement as set out in Schedule 13.
"PRESS RELEASE" means the press release issued by the Parent or on its
behalf on announcement of the Offer and the Rights Issue.
"QUALIFYING BANK" means a bank or financial institution which is:
(a) a bank for the purposes of section 349(3) of the Income and
Corporation Taxes Act 1988 and is beneficially entitled to and
within the charge to corporation tax on the interest received
by it under this Agreement; or
(b) resident (as such term is defined in the appropriate double
taxation treaty) in a country with which the United Kingdom
has an appropriate double taxation treaty under which that
institution is entitled to receive interest without deduction
or withholding of United Kingdom income tax and in respect of
which the Parent has received a direction from the United
Kingdom Inland Revenue that all payments of interest to or for
the account of such bank under any of the documents may be
made without deduction or withholding for or on account of tax
in the United Kingdom and for this purpose "double taxation
treaty" means any convention or agreement between the
Government of the United Kingdom and any other government for
the avoidance of double taxation and the prevention of fiscal
evasion with respect to taxes on
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income and capital gains. The Parent will use all reasonable
endeavours to obtain any required direction as promptly as
practicable.
"QUOTATION DATE" in relation to any period for which an interest rate
is to be determined hereunder means:
(a) the first day of an Interest Period for an Advance denominated
in Sterling;
(b) the second TARGET Business Day before the first day of an
Interest Period for an Advance denominated in euros;
(c) the second Business Day before the first day of an Interest
Period for an Advance denominated in any currency other than
sterling or euros; or
(d) such other day as is generally treated as the rate fixing day
by market practice in the London interbank market for the
currency concerned, as notified by the Agent to the other
Parties by not less than 5 Business Days' notice.
"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 Parent 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 Parent and the Lenders. The Agent shall be obliged to
seek a replacement for a Reference Bank if it no longer has a
Commitment.
"REGULATION D" means Regulation D of the Board of Governors of the
Federal Reserve System (or any successor).
"REGULATION D COSTS" means, in relation to its participation in an
Advance made to a Borrower incorporated in the U.S. (or deposits
maintained by a Lender to fund that participation), the amount (if any)
certified by a Lender to be the cost to it of complying with Regulation
D (or any similar reserve requirements) in respect of its participation
or those deposits.
"REPAYMENT DATE" means, for a Revolving Advance, the last day of its
Interest Period.
"REPORTABLE EVENT" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such section with respect to
a Plan, excluding, however, such events as to which the U.S. Pension
Benefit Guaranty Corporation (or any successor thereto) by regulation
waived the requirement of Section 4043(a) of ERISA that it be notified
within 30 days of the occurrence of such event, provided, however, that
a failure to meet the minimum funding standard of Section 412 of the
Code and of Section 302 of ERISA shall be a Reportable Event regardless
of the issuance of any such waiver of the notice
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requirement in accordance with either Section 4043(a) of ERISA or
Section 412(d) of the Code.
"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.
"REVOLVING ADVANCE" means a cash advance (as from time to time reduced
by repayment) made, or to be made, under the Revolving Credit Facility.
"REVOLVING CREDIT COMMITMENT" means the amount which a Lender has
committed to the Revolving Credit Facility. Each Lender's initial
"REVOLVING CREDIT COMMITMENT" is set out next to its name in Schedule
1. This may be reduced or revised in accordance with this Agreement. In
addition the amount of a Lender's "REVOLVING CREDIT COMMITMENT" may be
adjusted by assignments, transfers or novations in accordance with
Clause 28.2.
"REVOLVING CREDIT FACILITY" means the multi-currency revolving credit
facility referred to in Clause 2.1(A), the terms of which are set out
in this Agreement.
"RIGHTS ISSUE" means the offer of shares in the Parent 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 Parent or
on its behalf to its shareholders in connection with the Offer and the
Rights Issue.
"STERLING EQUIVALENT AMOUNT" means the amount in an Optional Currency
(other than sterling) equivalent to a specified amount in sterling. The
"STERLING EQUIVALENT AMOUNT" will be calculated using the Exchange Rate
applicable to the date on which the amount in the Optional Currency is
to be or was advanced.
"SUBSIDIARY" has the meaning described in section 736 of the Companies
Xxx 0000.
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"SUBSIDIARY UNDERTAKING" has the meaning described in section 258 of
the Companies Xxx 0000.
"TARGET" means the Trans-European Automated Real-time Gross Settlement
Express Transfer System.
"TARGET BUSINESS DAY" means a day on which TARGET is operating.
"TENOR" means the period from the Acceptance Utilisation Date on which
a Xxxx is accepted until the maturity of that Xxxx as specified in the
relevant Acceptance Utilisation Request in accordance with Clause 12.1.
"TERM ADVANCE" means a cash advance (as from time to time reduced by
payment) made, or to be made, under the Term Loan Facility.
"TERM LOAN" means the aggregate principal amount borrowed and not
repaid under the Term Loan Facility.
"TERM LOAN COMMITMENT" means the amount which a Lender has committed to
the Term Loan Facility. Each Lender's initial "TERM LOAN COMMITMENT" is
set out next to its name in Schedule 1. This may be reduced or revised
in accordance with this Agreement. In addition the amount of a Lender's
"TERM LOAN COMMITMENT" may be adjusted by assignments, transfers or
novations in accordance with Clause 28.2.
"TERM LOAN FACILITY" means the term loan facility referred to in Clause
2.1(B), the terms of which are set out in this Agreement.
"THIRD STAGE" means the third stage of economic and monetary union
pursuant to the Treaty establishing the European Community.
"TOTAL AVAILABLE COMMITMENT" means the aggregate of the Available
Commitments of all the Lenders.
"TOTAL AVAILABLE RELEVANT COMMITMENTS" means the aggregate of the
Available Relevant Commitments in respect of the Term Loan Facility or
the Revolving Credit Facility.
"TOTAL COMMITMENTS" means the aggregate of the Commitments of all the
Lenders.
"UNCANCELLED FACILITY AMOUNT" means the aggregate of the uncancelled
Revolving Credit Facility and the uncancelled Term Loan Facility
translating the amount uncancelled under the Term Loan Facility into
sterling at the Exchange Rate determined by the Agent on the day the
Uncancelled Facility Amount is being determined.
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"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.
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 and
references to "$" and to "DOLLARS" are to lawful
currency of the United States of America.
(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 = unless otherwise agreed between the Parent and the
Agent, 365 for amounts in sterling or, in other
currencies, 360 unless it is market practice in the
London inter-bank market to do otherwise when
market-practice (as determined by the Agent) shall
prevail.
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 INTRODUCTION OF THE EURO
Market practice relating to the method of rate fixing and the
calculation of interest on deposits in the inter-bank deposit market
in London may change following the start of the Third Stage and, as a
result, may differ from the method of rate fixing and the calculation
of interest prescribed under the terms of this Agreement. In this
event, the Agent will consult the Parent and specify the amendments to
this Agreement which are required to reflect and conform to these
changes. These amendments may be agreed before or after the start of
the Third Stage but must be in accordance with Clause 30.2. The
amendments may provide for the use of London inter-bank market offered
rates or inter-bank market offered rates from a wider European market
(or, in either case, screen rates reflecting these offered rates). They
may also change, amongst other things, the period of notice required
for an Advance, the rate fixing date, the definition of "Business Day"
and any elements of the formula (other than, for the avoidance of doubt
and without limitation, the Applicable Margin) set out in Clause 1.4.
The amendments will take effect on the later of the date specified in
the amending agreement and the date on which the Third Stage
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commences. The amendments will not apply to interest or fees which are
computed by reference to any period starting before the date the
amendments take effect. This Clause 1.6 may, in appropriate
circumstances, be invoked more than once.
1.7 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 FACILITIES
2.1 AMOUNT AND NATURE
The Facilities are:
(A) a pound sterling 325,000,000 multi-currency revolving credit
facility under which Revolving Advances may be made by the
Lenders to the Borrowers incorporating a revolving xxxxxxxx
xxxx acceptance facility under which the Lenders may, at the
request of a Borrower, accept Bills drawn by that Borrower in
sterling; and
(B) a $880,000,000 multi-currency term loan facility under which
Term Advances may be made by the Lenders to the Borrowers.
2.2 PURPOSE
The proceeds of the Facilities will be used by the Borrowers:
(A) towards payment of consideration to be provided by the Parent
(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;
(B) after the Unconditional Date, to pay (or to repay loan notes
issued as) consideration to be provided by the Parent or any
other member of the Group for any other acquisition of a
company or business (except for any hostile bid or hostile
takeover);
(C) for the general corporate purposes of the Parent and its
Subsidiaries (including, without limitation, for the purpose
of meeting the whole or any part of the Parent's expenses in
connection with the Offer); and
(D) to repay and refinance all or part of the existing
indebtedness of the Group (including that incurred by the
Xxxxxxxx Group in the acquisition of certain assets of Curtco
Freedom Group).
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Provided that the proceeds of the Term Loan Facility may only be used
for the purpose set out in paragraph (A) and (D). Neither the Term Loan
nor any Revolving Advance may be used for the purpose set out in
paragraph (A) above unless the Bridging Facility shall have been fully
drawn.
2.3 WITHOUT PREJUDICE TO THE OBLIGATIONS OF THE BORROWERS 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 BORROWERS HEREUNDER.
2.4 AVAILABILITY
(A) The Parent may, after 4th January, 1999, from time to time
borrow under the Facilities 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 Facilities 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 Parent and the Lenders promptly upon such items being
received. Any Nominated Borrower may from time to time borrow
under the Facilities after the Agent has given the notice
referred to in Clause 29.1(C).
(B) The Facilities shall automatically terminate, and all
Commitments shall be cancelled, on the earlier of (a) the
Offer not having become unconditional in all respects on or
prior to the end of the Offer Period or (b) the Offer having
lapsed or been withdrawn.
2.5 EXPIRY OF AVAILABILITY
No Borrower may borrow under the Revolving Credit Facility or make
Acceptance Utilisations under the Xxxx Acceptance Facility after the
Maturity Date. No Borrower may borrow under the Term Loan Facility
after the Commitment Expiry Date.
3. THE BORROWERS
3.1 FACILITIES AVAILABLE TO ALL BORROWERS
No part of the Facilities is reserved for any individual
Borrower.
3.2 BORROWERS' OBLIGATIONS
The obligations of each Borrower under this Agreement are separate and
independent from the obligations of each other Borrower. No Borrower
will be liable for the obligations of any other Borrower under this
Agreement except that this Clause 3.2 will not affect the obligations
of a Borrower as a guarantor under the Guarantee.
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3.3 OBLIGORS' AGENT
Each Obligor (other than the Parent) irrevocably authorises and
instructs the Parent on its behalf as agent to give and receive all
notices and to take all other action (including the giving of consents,
the signing of certificates and the acceptance of any proposal) as may
be necessary or desirable in connection with the Facilities or this
Agreement. Each such Obligor confirms that it will be bound by any
action taken by the Parent under or in connection with the Facilities
or this Agreement.
4. THE LENDERS
4.1 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 an Obligor on its own
without joining any other Lender to those proceedings.
4.2 FAILURE TO PERFORM
If a Lender fails to perform its obligations a Borrower will have
rights solely against that Lender. The obligations of the Obligors to
the Agent, the Arrangers and the other Lenders will not be affected by
this failure.
4.3 PARTICIPATIONS
The participation of a Lender in an Advance or an Acceptance
Utilisation will be calculated using the following formula:
P = C x A
-
F
where:
P = the participation of that Lender in the Advance or
the face amount of the Bills to be accepted by that
Lender under the Acceptance Utilisation
C = the Available Relevant Commitment of that Lender on
the Advance Date or the Acceptance Utilisation Date
F = the Total Available Relevant Commitments on the
Advance Date or the Acceptance Utilisation Date
A = the amount of the Advance or the total face amount
of the Bills to be accepted under the Acceptance
Utilisation.
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Acceptance Utilisation Date will be treated as having
matured and been paid on that date. The Agent may round participations
upwards or downwards to the nearest unit of currency.
5. FEES AND EXPENSES
5.1 UNDERWRITING AND SYNDICATION FEES
The Parent agrees to pay underwriting and syndication fees to the
Arrangers. The amount of these fees and the timing of payment are
described in a letter from the Arrangers to the Parent dated the same
date as this Agreement.
5.2 AGENCY FEE
The Parent agrees to pay an agency fee to the Agent. The amount of this
fee and the timing of payment are described in a letter from the Agent
to the Parent dated the same date as this Agreement.
5.3 REIMBURSEMENT OF INITIAL EXPENSES
The Arrangers and the Agent have incurred and will incur expenses in
connection with the arrangement of the Facilities. The Parent 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 Parent
dated the same date as this Agreement and referred to in Clause 5.1.
5.4 COMMITMENT FEE
A commitment fee will accrue on the daily undrawn and uncancelled
amount of the Revolving Credit Commitment and the Term Loan Commitment
of each Lender. This fee will accrue from the date of this Agreement
until the Maturity Date. The rate of the fee will be 0.175 per cent.
per annum in respect of the Term Loan Commitment. The rate of the fee
in respect of the Revolving Credit Commitment will be 0.175 per cent.
per annum until the Unconditional Date. Thereafter, once the Revolving
Credit Facility is available, the rate of the fee will be 50 per cent.
of the Applicable Margin. The Parent agrees to pay the fee to each
Lender in arrear at quarterly intervals and on the Maturity Date and on
cancellation by the Parent of any Lender's Commitment.
6. CANCELLATION
6.1 VOLUNTARY CANCELLATION
The Parent may cancel the whole or any part of the Facilities by giving
notice to the Agent. This notice will take effect five Business Days
after it is received by the Agent unless a later date is specified in
the notice. In that case the notice will take effect on the specified
date. The Parent may only cancel a part of the undrawn portion of the
Facilities which is (i) in the case of the Revolving Credit
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Facility, a minimum amount of pound sterling 15,000,000 and an
integral multiple of pound sterling 5,000,000, and (ii) in the case of
the Term Loan Facility, a minimum amount of $20,000,000 and an integral
multiple of $5,000,000, in each case unless otherwise agreed between
the Parent and the Agent.
6.2 AUTOMATIC CANCELLATION OF TERM LOAN FACILITY
Any amount undrawn under the Term Loan Facility at the date falling
150 days after the date of this Agreement will be automatically
cancelled.
6.3 EFFECT OF CANCELLATION
Amounts so cancelled may not be drawn or re-drawn.
7. ADVANCE OF FUNDS
7.1 NOTICE
When a Borrower wishes to borrow under the Facilities, the relevant
Borrower will send to the Agent an Advance Request by no later than the
Prescribed Time. Such Advance Request must specify the identity of the
Borrower, the amount to be borrowed, the currency, the Advance Date
and, for a Revolving Advance, the Repayment Date and, for a Term
Advance, the length of the first Interest Period. The Agent will pass
on details of any request to the Lenders by no later than the
Prescribed Time.
7.2 LIMITATIONS ON ADVANCES
The following limitations apply to Advances:
(A) REVOLVING ADVANCES AND ACCEPTANCE UTILISATIONS:
No Revolving Advance or Acceptance Utilisation may
exceed the uncancelled and undrawn amount of the
Revolving Credit Facility. This limitation will be
applied as at the Advance Date. For the purpose of
this Clause 7.2:
(i) any part of the Revolving Credit Facility which
is subject to a notice of voluntary
cancellation will be treated as cancelled
(unless such cancellation is effective on or
later than the date on which the Revolving
Advance is due to be repaid);
(ii) any amount of any Revolving Advance due to be
repaid on the Advance Date will be treated as
having been repaid;
(iii) the amount of any Bills due to mature on the
Advance Date will be treated as having matured
and been paid on that date;
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(iv) any other Revolving Advances and any Acceptance
Utilisation due to be made on the Advance Date will
be treated as having been made; and
(v) Revolving Advances in Optional Currencies will be
taken at their Original Sterling Amount.
(B) The number of Revolving Advances and Acceptance Utilisations
outstanding on any date will not exceed ten. For the purpose
of this Clause 7.2:
(i) any amount of any Revolving Advance due to be repaid
on the Advance Date will be treated as having been
repaid;
(ii) the amount of any Bills due to mature on the Advance
Date will be treated as having matured and been paid
on that date; and
(iii) any other Revolving Advances and any Acceptance
Utilisation due to be made on the Advance Date will
be treated as having been made.
(C) TERM ADVANCES:
No Term Advance may exceed the uncancelled and
undrawn amount of the Term Loan Facility. This limitation will
be applied as at the Advance Date. For this purpose:
(i) any part of the Term Loan Facility which is subject
to a notice of voluntary cancellation will be treated
as cancelled (unless such cancellation is effective
on or later than the date on which the Term Advance
is due to be repaid);
(ii) any other Term Advance due to be made on the Advance
Date will be treated as having been made; and
(iii) Term Advances in Optional Currencies will be taken at
their Original Dollar Amount.
(D) The number of Term Advances outstanding on any date
will not exceed ten. For this purpose:
(i) any amount of any Term Advances due to be repaid on
the Advance Date will be treated as having been
repaid; and
(ii) any other Term Advances due to be made on the Advance
Date will be treated as having been made.
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(E) ALL ADVANCES:
Unless otherwise agreed between the Parent and the Agent:
(i) an Advance in sterling must be a minimum of pound
sterling 20,000,000 and an integral multiple of pound
sterling 5,000,000 or be the uncancelled and undrawn
amount of the relevant Facility;
(ii) an Advance in euros must be a minimum of E20,000,000
and an integral multiple of E5,000,000 or be the
uncancelled and undrawn amount of the relevant
Facility;
(iii) an Advance in dollars must be a minimum of
$30,000,000 and an integral multiple of $5,000,000 or
be the uncancelled and undrawn amount of the relevant
Facility;
(iv) an Advance in any Optional Currency other than
sterling, euros or dollars must be either:
(a) a round amount in that currency agreed by
the relevant Borrower with the Agent; or
(b) in the case of Advances on the Revolving
Credit Facility:
(i) the Sterling Equivalent Amount of such
minimum amount as is from time to time
agreed between the Agent and the relevant
Borrower, or failing agreement a minimum
of pound sterling 20,000,000 and an
integral multiple of pound sterling
5,000,000 (rounded on such basis as may
reasonably be determined by the Agent and
notified in advance to the relevant
Borrower); or
(ii) the Sterling Equivalent Amount of the
uncancelled and undrawn amount of such
Facility; or
(c) in the case of Advances on the Term Loan
Facility:
(i) the Dollar Equivalent Amount of a
minimum of $30,000,000 and an integral
multiple of $5,000,000 (rounded on such
basis as may reasonably be determined by
the Agent and notified in advance to the
relevant Borrower) or
(ii) the Dollar Equivalent Amount of the
uncancelled and undrawn amount of such
Facility.
(F) The Interest Period of each Advance must comply with Clause 9.
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(G) If the Advance is a Revolving Advance and it is not to be in
sterling, Clause 8 applies. If the Advance is a Term Advance
and it is not to be in dollars, Clause 8 applies.
(H) The Advance Date must be a Business Day before the Maturity
Date or, for a Term Advance, before the Commitment Expiry
Date.
(I) All Advances must be repaid on or before the Maturity Date.
7.3 CONDITIONS TO BORROWING
The Lenders will only be obliged to make an Advance to any
Borrower if:
(A) the Facilities are available in accordance with
Clause 2.4;
(B) an Advance Request has been received by the Agent;
(C) in respect of an Advance which is not a Rollover
Advance (for which see paragraph (D) below), 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; and
(D) in respect of a new Advance to a Borrower to the
extent that it does not exceed an existing Advance in
the same currency made to such Borrower which is
repaid on the Advance Date of the new Advance (a
"Rollover Advance"), there is no Event of Default
which has occurred or is occurring on the Advance
Date or would result from the Advance being made.
7.4 OBLIGATION TO ADVANCE FUNDS
If the requirements of paragraphs 7.1 to 7.3 are satisfied, each Lender
agrees to advance its participation in the Advance to the Borrower
identified in the Advance Request. The Advance will be made on the
Advance Date specified in the 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. If
an existing Advance is to be repaid on the Advance Date and the new
Advance is in the same currency as such existing Advance, the Agent may
apply the participation of a Lender in the new Advance in or towards
repayment of its participation in the existing Advance.
7.5 CONSEQUENCES OF AN ADVANCE NOT BEING MADE
If an 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
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hedging open positions resulting from the Advance not being made. They
will not, however, include loss of Applicable Margin. The Borrower
identified in the request for the Advance agrees to reimburse the
Lenders for the amount of these losses and expenses actually incurred.
This Clause 7.5 does not apply to a Lender if the Advance is not made
by reason of a default of that Lender.
8.0 CURRENCY OPTIONS FOR ADVANCES
8.1 REQUEST FOR OPTIONAL CURRENCY
This Clause 8.1 applies if an Advance Request for a Revolving Advance
specifies a currency other than sterling or an Advance Request for a
Term Advance specifies a currency other than dollars. In this case the
Advance requested will be made in the currency specified if all the
following are true:
(A) The currency specified is an Optional Currency.
(B) The Advance is required to be made under the terms
of this Agreement.
8.2 IMPRACTICALITY OF DRAWING IN OPTIONAL CURRENCY
All or a portion of an Advance which was to have been made in an
Optional Currency will not be required to be made in that currency if
all the following are true:
(A) An event described in Clause 8.3 occurs.
(B) The Agent notifies the Borrower which requested the Advance
by the Prescribed Time of this event and states that as a
result all or a portion of the Advance cannot be made in the
Optional Currency.
(C) In such event the portion of the Advance which would
otherwise have been made in an Optional Currency shall be
made in sterling, in the case of an Advance under the
Revolving Credit Facility, and in dollars in the case of an
Advance under the Term Loan Facility and treated as a
separate Advance.
8.3 EVENTS MAKING DRAWING IN OPTIONAL CURRENCY IMPRACTICAL
An event referred to in Clause 8.2 occurs if:
(A) in the reasonable opinion of a Lender, it is impracticable for
that Lender, to fund its participation in the Advance in the
Optional Currency in the ordinary course of business in the
London inter-bank market; or
(B) the use of the Optional Currency is, or might (in the
reasonable opinion of the Lender) be, restricted or prohibited by
any directive or regulation of any government body, agency or
department or regulatory or other
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authority (whether or not having the force
of law) in accordance with which that Lender is
accustomed to act.
8.4 TERM ADVANCES IN AN OPTIONAL CURRENCY
(A) For a Term Advance denominated in an Optional
Currency, there shall be calculated the difference
between the amount of the Term Advance (in that
Optional Currency) for the current Interest Period
and for the next Interest Period. The amount of the
Term Advance for the next Interest Period will be
determined by notionally converting into that
Optional Currency the Original Dollar Amount of the
Term Advance on the basis of the Exchange Rate three
Business Days before the commencement of that
Interest Period.
(B) At the end of the current Interest Period (but
subject always to paragraph (C) below):-
(i) if the amount of the Term Advance for the
next Interest Period is less than for the
preceding Interest Period, the relevant
Borrower shall repay the difference; or
(ii) if the amount of the Term Advance for the
next Interest Period is greater, each Bank
shall forthwith make available to the Agent
for that Borrower its participation in the
difference.
(C) If the Exchange Rate for the next Interest Period
shows an appreciation or depreciation of the Optional
Currency against dollars of less than five per cent.
when compared with the Original Exchange Rate, no
amounts are payable in respect of the difference. In
this Clause 8 "Original Exchange Rate" means the
Exchange Rate used for determining the amount of the
Optional Currency for the Interest Period which is
the later of the following:-
(i) the Interest Period during which the Term
Advance was first denominated in that
Optional Currency; and
(ii) the most recent Interest Period immediately
prior to which a difference was required to
be paid under this Clause 8.4.
8.5 PREPAYMENTS AND REPAYMENTS
If a Term Advance is to be repaid or prepaid by reference to
an Original Dollar Amount, the Optional Currency amount to be
repaid or prepaid shall be determined by reference to the
Exchange Rate last used for determining the Optional Currency
amount of that Term Advance under this Clause 8 or, if
applicable, the Original Exchange Rate.
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9. INTEREST ON ADVANCES
9.1 INTEREST PERIODS
(A) Revolving Advances: Each Revolving Advance will have
one Interest Period only.
(B) TERM ADVANCES: Each Term Advance will have a first
Interest Period commencing on its Advance Date.
Subsequent Interest Periods will commence on the last
day of the preceding Interest Period. A Term Advance
may be split into two or more Term Advances or
consolidated with another Term Advance made to the
same Borrower. A splitting or consolidation must take
effect on the first day of an Interest Period for all
Term Advances affected. No split can be made unless
in total no more than ten Term Advances will be
outstanding after that splitting.
9.2 DURATION OF INTEREST PERIODS
The Interest Period for each Advance must be a period of 7
days, 14 days, 1, 2, 3 or 6 months, unless otherwise agreed
between the Lenders and the Parent.
9.3 SELECTION OF INTEREST PERIODS
(A) The Parent or, if authorised by the Parent, the
relevant Nominated Borrower may select an Interest
Period in respect of an Advance either in its request
for an Advance or, in respect of Term Advances and in
the case of second and subsequent Interest Periods,
by separate notice to the Agent on or before the
Prescribed Time.
(B) When the Parent or the relevant Nominated Borrower
does not select an Interest Period in accordance with
paragraph (A), the Interest Period will be three
months.
9.4 ADJUSTMENT OF INTEREST PERIOD
(A) An Interest Period will end on the last Business Day
of a calendar month if it is for a number of complete
months and either:
(i) it commenced on the last Business Day of a
calendar month; or
(ii) it commenced on a day for which there is no
corresponding day in the month in which it
is due to end.
(B) Any Interest Period which would otherwise begin
before but end after the Maturity Date will end on
the Maturity Date.
(C) Any Interest Period in respect of a portion of the
Term Loan which is due to be repaid on the next
Amortisation Date and which would otherwise extend
beyond such date shall end on such Amortisation Date.
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9.5 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 Applicable Margin plus, if relevant for an Advance,
the Costs Rate.
9.6 APPLICABLE MARGIN
The Applicable Margin for any Tenor or Interest Period shall
be determined as follows:
(A) Up to and including 31st March, 2000 the Applicable
Margin is 0.80 per cent. per annum.
(B) Thereafter, subject to paragraphs (C) and (D), the
Applicable Margin will be determined in accordance
with the table below by reference to the amount of
the Uncancelled Facility Amount
UNCANCELLED FACILITY AMOUNT Applicable Margin
Above pound sterling 650 million 0.80% pa
Equal to or below pound sterling 650 million
but above pound sterling 500 0.65% pa
million
Equal to or below pound sterling 500 million 0.55% pa
(C) Any adjustment to the Applicable Margin pursuant to
paragraph (B) will take effect from the beginning of
the next Interest Period in respect of any Term
Advance, or, in the case of the Revolving Credit
Facility, on the Advance Date or Acceptance
Utilisation Date for any subsequent utilisation.
(D) Notwithstanding the above paragraph, if an Event of
Default or a Potential Event of Default is
outstanding the Applicable Margin may not be
decreased.
9.7 PAYMENT OF INTEREST
Each Borrower agrees to pay interest accrued on each Advance
made to it in arrear on the last day of each Interest Period
in respect of that Advance. Where the Interest Period is
longer than six months that Borrower also agrees to pay
interest on each date falling at six monthly intervals after
the first day of that Interest Period.
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9.8 NOTIFICATION OF INTEREST RATE
The Agent will promptly notify the Lenders, the Parent and any
relevant Nominated Borrower of the determination of a rate of
interest under this Agreement.
9.9 REGULATION D
Each Borrower incorporated in the United States shall, on
demand by any Lender (through the Agent), pay to that Lender
the amount of any Regulation D Costs actually incurred by that
Lender in respect of its participation in any Advance made by
it to that Borrower.
10. REPAYMENT OF ADVANCES
10.1 Each Borrower agrees to repay each Revolving Advance
made to it on the Repayment Date for that Advance.
10.2 The Borrowers agree to repay the Term Advances in
accordance with the following schedule:
AMORTISATION DATE AMOUNT OF REPAYMENT INSTALMENT
($)
31st March, 2001 150,000,000
31st March, 2002 200,000,000
31st March, 2003 200,000,000
Fifth anniversary of date of this Agreement balance
10.3 If the amount outstanding under the Term Loan Facility on any
Amortisation Date is less than the amount specified for
repayment on such date by the schedule in paragraph 10.2, the
Borrowers will repay the whole of the outstanding balance (if
any) of the Term Advances.
11. PREPAYMENT OF ADVANCES
11.1 OPTIONAL PREPAYMENT
The Parent may give notice that a Borrower will repay early the
whole or part of an Advance made to that Borrower. In this
event the relevant Borrower shall pay an amount equal to the
Breakage Amount. The notice of repayment will be irrevocable
and must state:
(A) the date of prepayment, which will be at least five
Business Days after the notice is received by the Agent
unless otherwise agreed;
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(B) the amount to be prepaid which will be (i) in the case
of prepayments in respect of a Revolving Advance, a minimum of
pound sterling 10,000,000 and an integral multiple of pound
sterling 5,000,000 (ii) in the case of prepayments in respect
of a Term Advance, a minimum of $15,000,000 and an integral
multiple of $5,000,000 or (iii) in either case, the whole of
the relevant Advance (any amounts outstanding in an Optional
Currency being taken at their Original Sterling Amount, in the
case of the Revolving Credit Facility, or their Original Dollar
Amount, in the case of the Term Loan Facility); and
(C) whether the prepayment is to be made in respect of a
Term Advance or a Revolving Advance.
11.2 MANDATORY PREPAYMENT ON CHANGE OF CONTROL
If at any time any person or a group of persons acting in
concert acquires an interest in more than 50 per cent. of the
equity share capital of the Parent or the Parent merges with
any other person, the Parent will notify the Lenders promptly
and in any event within 7 days and each Lender may by notice to
the Parent:
(A) call for prepayment of its participation in all
outstanding Advances on the later of the date specified in
the notice and the date 30 days after the notice is
delivered to the Parent; and
(B) declare that its Commitments shall be cancelled on the
later of the date specified in the notice and the date 30
days after the notice is delivered to the Parent.
To the extent that Lenders whose aggregate Commitments exceed
one-third of Total Commitments so elect, the remaining Lenders
shall be deemed to have so elected, whether they have or not.
For this purpose and for the purpose of Clause 12.11 "acting in
concert" has the meaning described in the City Code on
Take-overs and Mergers and "interest" has the meaning given in
section 208 of the Companies Xxx 0000. In this event the
relevant Borrower agrees to pay an amount equal to the
Breakage Amount.
11.3 NO OTHER PREPAYMENT
The Borrower may not repay all or any part of any outstanding
Advance early except in the manner permitted or required by
this Agreement.
11.4 NO RE-BORROWING
No amount repaid or prepaid under the Term Loan Facility may be
re-borrowed. Except for prepayments arising through the
operation of Clause 14, amounts pre-paid under the Revolving
Credit Facility may be re-borrowed.
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11.5 EFFECT ON TERM LOAN
Prepayment of any Term Advance under Clause 11.1 will reduce
subsequent repayment instalments in respect of the Term Loan in
the order of maturity. Any other prepayment will reduce
subsequent instalments in respect of the Term Loan pro rata.
12. ACCEPTANCE FACILITY
12.1 RECEIPT OF ACCEPTANCE UTILISATION REQUESTS
A Borrower may utilise the Xxxx Acceptance Facility if the Agent
receives, not later than the Prescribed Time, a duly completed
Acceptance Utilisation Request. Each Acceptance Utilisation
Request is irrevocable.
12.2 FORM OF REQUESTS
An Acceptance Utilisation Request in respect of Bills will not
be regarded as being duly completed unless:-
(A) it specifies that is a utilisation of the Xxxx
Acceptance Facility;
(B) the Acceptance Utilisation Date is a Business Day
falling before the Maturity Date;
(C) the amount requested is:
(i) a minimum of pound sterling 20,000,000 and an integral
multiple of pound sterling 5,000,000; or
(ii) the balance of the undrawn amount of the Revolving
Credit Facility; or
(iii) such other amount as the Agent may agree;
(D) the amount selected under paragraph (C) above does
not cause Clause 7.2(A) to be contravened; and
(E) only one Tenor is specified which:-
(i) does not overrun the Maturity Date; and
(ii) is a period of between 7 and 187 days.
12.3 ACCEPTANCE OF BILLS
(A) The Agent shall promptly:
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(i) notify each Lender of the details of the
requested Bills and the aggregate principal
amount of the Bills to be accepted by it; and
(ii) shall deliver to each Lender, Bills completed
in accordance with Clause 12.5.
(B) Each Lender shall accept the Bills delivered to it in
accordance with paragraph (A) above.
(C) The Agent shall, not later than 11.30 a.m. on the
applicable Acceptance Utilisation Date notify the
Borrower and each Lender of the applicable Eligible
Xxxx Discount Rate.
(D) Subject to the terms of this Agreement, each Lender
shall pay to the Agent for the Borrower an amount
equal to:-
(i) the amount which the Lender would have
received as the proceeds of discounting if
it had discounted the Bills accepted by it
at the applicable Eligible Xxxx Discount
Rate; less
(ii) acceptance commission calculated at the
Acceptance Commission Rate on the aggregate
principal amount of those Bills.
12.4 REVOLVING ADVANCES AS AN ALTERNATIVE
(A) If, as a result of any law or regulation, it is
unlawful or impracticable for a Lender to accept any
Bills or a Lender is unwilling to accept Bills or it is
not an Eligible Bank, then it may notify the Agent
accordingly.
(B) If a Lender notifies the Agent in accordance with
paragraph (A) above, then, subject to the terms of this
Agreement, the Lender shall instead make a Revolving
Advance in sterling on the relevant Acceptance
Utilisation Date in a principal amount equal to the
aggregate principal amount of the Bills which it would
otherwise have been obliged to accept pursuant to this
Clause 12 and for a term equal to the term of those
Bills.
12.5 HOLDING AND COMPLETION OF BILLS
(A) A Borrower shall ensure that the Agent has a sufficient
stock of Bills before delivering any request in respect
of Bills.
(B) Each Xxxx will:
(i) be drawn by the Borrower is its own favour and
endorsed by it in blank;
(ii) be undated;
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(iii) have the maturity date and the face amount
left blank; and
(iv) be claused in a manner which complies with
the Bank of England's requirements for
Eligible Bills at that time.
(C) Subject to the terms of this Agreement, the Agent
shall:-
(i) date each Xxxx with its Acceptance
Utilisation Date;
(ii) insert in each Xxxx the name of the Lender
on which it is drawn, its face amount and
its maturity date; and
(iii) deliver the requisite number of completed
Bills to the Lenders for acceptance in
accordance with this Agreement.
12.6 ROUNDING OF PRINCIPAL AMOUNT OF BILLS
The Agent may round the principal amount of the relevant Bills
to be accepted by each Lender to ensure that each Xxxx has a
principal amount of an integral multiple of pound sterling
10,000, being not less than pound sterling 100,000 nor more than
pound sterling 5,000,000.
12.7 DISCOUNTING OF BILLS
Each Lender may arrange for a Xxxx accepted by it to be
discounted on its behalf in the London discount market or
elsewhere or discount the Xxxx itself.
12.8 INFORMATION RELATING TO BILLS
Each Borrower shall, promptly on request by a Lender or the
Agent, supply to the Agent for that Lender, Agent or Arranger
any information relating to any Xxxx (including the underlying
trade transaction for that Xxxx) as that Lender or the Agent
may reasonably require or which may be required by the Bank of
England or any other fiscal or monetary authority in the U.K.
12.9 ELIGIBLE BILLS
A Borrower shall ensure that each Xxxx drawn by it and
accepted by a Lender is, assuming that the relevant Lender is
a bank whose acceptances are then being treated as eligible
acceptances by the Bank of England, eligible for rediscounting
at the Bank of England.
12.10 MATURITY OF BILLS
(A) On the maturity date of each Xxxx, the relevant Borrower
identified in the Acceptance Utilisation Request agrees to
pay to the Agent, for the account of the Lender which
accepted that Xxxx, an amount in sterling equal to the face
amount of that Xxxx.
(B) The Borrower identified in an Acceptance Utilisation
Request will be entitled from time to time and at any time
upon giving not less than five
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Business Days' notice to the Agent (or such other notice
as the Agent may agree) to comply prematurely with its
obligation under Clause 12.10(A) in respect of Bills of a
principal amount of not less than pound sterling 500,000.
(C) If a Borrower prematurely complies with its obligations
under Clause 12.10(A) in respect of any Xxxx, then the
amount payable by that Borrower shall be discounted on the
basis of such normal commercial rates prevailing at the
time of notification for sterling deposits of an amount
equal to the face amount of the Xxxx for the period from
the time of prepayment to the maturity date of the Xxxx as
the Lender may reasonably determine.
12.11 CHANGE OF CONTROL
If at any time any person or a group of persons acting in concert
acquires an interest in more than 50 per cent. of the equity
share capital of the Parent or the Parent merges with any other
person, the Parent will notify the Lenders (through the Agent)
promptly and in any event within 7 days and each Lender may by
notice to the Parent:
(A) call for payment to an account nominated by the Agent of an
amount in sterling calculated in accordance with Clause
12.10(C) in respect of all its outstanding Bills on the
later of the date specified in the notice and the date 30
days after the notice is delivered to the Parent; and
(B) declare that the Xxxx Acceptance Facility shall be cancelled
on the later of the date specified in the notice and the
date 30 days after the notice is delivered to the Parent.
To the extent that Lenders whose aggregate Commitments exceed
one-third of Total Commitments so elect, the remaining Lenders
shall be deemed to have so elected, whether they have or not.
12.12 GENERAL
(A) The Agent agrees to ensure that Bills delivered to it under
this Agreement are kept secure and in safe custody and are
completed and issued only in accordance with the terms of
this Agreement. The Agent agrees that on the Maturity Date
it will cancel any blank Bills then held by it and will
return them to the Parent or the relevant Borrower as soon
as reasonably practicable.
(B) The Agent agrees to indemnify the relevant Borrower on
demand against all and any loss or costs and expenses
suffered by it as a result of the gross negligence or wilful
misconduct of the Agent either in the safekeeping of the
Bills or the performance by the Agent of its obligations
under this Clause 12.
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12.13 POWER OF ATTORNEY
A Borrower may deliver to the Agent a power of attorney substantially
in the form of Schedule 7. The Agent, on behalf of that Borrower,
agrees to draw, clause, endorse and deliver Bills to implement each
Acceptance Utilisation identifying that Borrower in satisfaction of
that Borrower's obligations in accordance with the terms of that
power of attorney.
13. MARKET DISRUPTION AND ALTERNATIVE INTEREST RATES
13.1 MARKET DISRUPTION - GENERAL
(A) NATURE OF MARKET DISRUPTION: This Clause 13.1 applies if in
relation to any Advance under the Facilities 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 by way of Advances in the London
inter-bank market because of circumstances generally
applicable in that market.
(B) NOTICE: The Agent agrees promptly to notify the Parent if
paragraph (A) applies.
(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 Facilities will be suspended. Instead each
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
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Rate to each Lender of funding for the
period plus the Applicable Margin plus, if relevant
for an Advance, 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 Parent and the Agent agree to
negotiate the terms of an alternative arrangement for
determining a rate of interest for the Facilities. The
negotiations will be carried on in good faith. Neither
party is bound to continue the negotiations after the
date 30 days after the Parent receives the Agent's
notice. If agreement is reached between the Parent 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
that Advance. Any such alternative basis may include
an alternative method of fixing the interest rate,
alternate Interest Periods or alternative currencies
but it must reflect the cost to the Lender of funding
its participation in that Advance from whatever
sources it may reasonably select plus the Applicable
Margin and (if applicable) any Costs Rate and such
alternative basis so certified shall be binding on the
Obligor and the Certifying Lender and treated as part
of this Agreement.
(iv) If the circumstances described in
paragraph (A) cease to apply, the Agent will notify
the Parent 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 Facilities to return to the means by
which interest rates are normally calculated under
this Agreement. Each Borrower agrees to pay interest
to the Lenders in the manner described in this notice
unless a different arrangement is agreed by the Agent
and the Parent and approved by all the Lenders. In
this case each Borrower agrees to pay interest to the
Lenders in the manner agreed.
13.2 MARKET DISRUPTION - BILLS
(A) Nature of market disruption: This Clause 13.2 applies
if either of (i) or (ii) are true in relation to any
Bills:
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(i) adequate and fair means do not exist for
ascertaining the applicable Eligible Xxxx
Discount Rate; or
(ii) the Bills do not comply with the then
current Bank of England regulations for
sterling bankers' acceptances (other than
because a Lender is not an Eligible Bank).
(B) NOTICE: The Agent agrees promptly to notify the
Parent if paragraph (A) applies.
(C) ALTERNATIVE ARRANGEMENTS: If the Agent delivers a
notice of market disruption under paragraph (B) each
of the following applies:
(i) the obligations of each Lender under Clause
12 will not apply; and
(ii) in the case of paragraph (A)(i), no further
requests for an Acceptance Utilisation may
be delivered until the Agent notifies the
Parent that it is once again able to
determine the Eligible Xxxx Discount Rate.
The Agent will notify the Parent as soon as
practicable after making the determination.
(D) REPLACEMENT ADVANCE: This paragraph (D) applies if
the Lender delivers a notice of market disruption
under paragraph (B) after the issue of a request for
an Acceptance Utilisation. In this case Clause 12.4
will apply.
14. CHANGES OF CIRCUMSTANCES
14.1 ILLEGALITY
(A) NOTICE: Each Lender agrees to notify the Parent 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 Facilities or any of them. The
illegality may relate to the performance of the
Lender's obligations, the maintenance of the
Facilities 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. Each
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 that Borrower shall prepay the
appropriate proportion of the Breakage Amount by
reference to such participation on the date (or
dates) specified by the Lender. In
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addition, each Borrower agrees to pay to that Lender
the aggregate face amount of all outstanding Bills
issued by that Borrower and accepted by that Lender
under this Agreement on the respective maturity
dates of such Bills unless the Lender certifies
that, because of a legal requirement or regulation
applicable to the Lender, it must be paid earlier.
In this event that Borrower agrees to pay an amount
equal to the face amount of all outstanding Bills
accepted by the Lender from that Borrower discounted
on the basis of such normal commercial rates
prevailing at the time of notification for sterling
deposits of an amount equal to the face amount of
all outstanding Bills accepted by the Lender for the
period from the time of payment on the earlier date
(or dates) specified by the Lender to the respective
maturity dates of those Bills as each Lender may
reasonably determine.
14.2 INCREASED COSTS
(A) Types of increased costs: This Clause 14.2 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 Facilities or any
of them or on its overall capital is
reduced; or
(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.
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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 14.3).
(2) Any loss, reduction or expense to the extent
reflected in the Costs Rate or provided for by
Clause 9.9.
(iii) The losses, reductions and expenses arising as a
result are wholly or partly attributable to the
Facilities or any of them or the arrangements made by
the Lender in connection with the Facilities or any
of them.
(B) NOTICE: Each Lender agrees to notify the Parent through the
Agent as soon as practicable if it becomes aware that
paragraph (A) applies.
(C) PAYMENT OF ADDITIONAL AMOUNTS: The Parent 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
Facilities.
(D) PREPAYMENT: If a Lender delivers a notice of increased costs,
the Parent may deliver a notice of prepayment to that Lender.
Each Borrower to which an Advance is then outstanding agrees
to prepay the participation of that Lender in each Advance and
any outstanding Bills on a date specified in the notice of
prepayment and a corresponding portion of the relevant
Commitment shall be cancelled. In this event the relevant
Borrower shall repay an amount equal to the Breakage Amount
for each Lender by reference to such participation.
14.3 WITHHOLDING TAXES
(A) Withholdings and deductions: This Clause 14.3 applies if any
Obligor is required by law to make a payment under this
Agreement net of a withholding or deduction.
(B) NOTICE: The Parent agrees to notify the Agent if it becomes
aware that paragraph (A) applies.
(C) GROSSING UP: The relevant Obligor 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.
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(D) PAYMENT OF TAX: The relevant Obligor 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 relevant Obligor agrees to
deliver this to the Agent as soon as practicable
after a request for the same.
(E) PREPAYMENT: If paragraph (A) applies, the Parent may
deliver a notice of prepayment to the Agent. This
notice may relate to any Advance (or part of an
Advance) or the interest thereon, in each case which
is subject to the withholding or deduction. The
relevant Obligor to which any such Advance is then
outstanding agrees to prepay the participation of the
Lenders in that 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 relevant Obligor 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) any Obligor pays any additional amount under this
Clause 14 (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 relevant
Obligor 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 any Obligor.
14.4 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 Facilities and that it will
remain, until it notifies the Agent to the contrary,
a 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.
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(B) No Obligor will be required to pay increased
amounts under Clause 14.3 in relation to any interest
if:
(i) the Lender is not or ceases to be a
Qualifying Bank; or
(ii) in the case of a Lender falling within
paragraph (a) of the definition of
"Qualifying Bank", that interest is not
beneficially owned by a person who is within
the charge to United Kingdom corporation tax
in respect of it.
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.
14.5 US BORROWER
(A) With respect to each Advance to a Borrower that is
organised under the laws of the United States of
America, each Lender that is not organised under the
laws of the United States of America (a "Non-US
Lender") (i) represents at the date the Borrower
becomes a Party or, if later, at the date it becomes a
party to the Facilities that it is (and until it
notifies such Borrower and the Agent to the contrary
will remain) entitled to the benefit of a double
taxation treaty between the United States of America
and the jurisdiction in which that Non-US Lender is
resident under which payments of interest under this
Agreement may be made free of US withholding tax to
such Non-US Lender (a "US Treaty Bank") and (ii) shall
promptly deliver to such Borrower US Internal Revenue
Form 1001 (or successor form) claiming exemption from
US withholding tax on interest and, if it is proper and
lawful to do so, shall comply with requirements to keep
such exemption in effect.
(B) Clause 14.3 shall not apply to any US
withholding tax on any amount payable to a Non- US
Lender by such a Borrower (or by a Guarantor of such a
Borrower) to the extent that such US withholding tax
arises (i) as a result of such a Non-US Lender not
being or ceasing to be a US Treaty Bank (otherwise
than by reason of a subsequent change of law or
treaty) or (ii) due to a failure of such a US Treaty
Bank to comply with the obligations in paragraph
(A)(ii) above.
14.6 MITIGATION
This Clause 14.6 does not affect the obligations of any
Obligor under the other paragraphs of this Clause 14. If
any of Clause 14.1, 14.2 or 14.3 applies to a Lender,
that Lender will take all steps reasonably open to it
(including, without limitation, transferring the
Facilities to another bank acceptable to the Parent)
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to mitigate the effect of that clause on the relevant
Obligor. 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.
15 PAYMENTS
15.1 METHOD AND TIMING OF PAYMENTS
All payments under this Agreement must be made in
immediately available (or, in the case of dollars, same day)
and freely transferable funds. Each payment must be for
value on the due date.
15.2 CURRENCY OF PAYMENT
(A) In this Agreement, subject to paragraph (C):
(i) all payments by a Borrower in respect of an
Advance, whether of interest or principal,
shall be made in the currency (or the
denomination of the currency) in which that
Advance is denominated at the time of
payment;
(ii) all payments relating to costs, losses,
expenses or taxes shall be made in the
currency in which the relevant costs,
losses, expenses or taxes were incurred; and
(iii) any other amount payable under this
Agreement shall, except as otherwise
provided, be made in sterling.
(B) Subject to paragraph (C), following the start of the
Third Stage, any Advance requested to be denominated
in the national currency unit of a Participating
Member State shall be made in the national currency
unit requested and any Advance requested to be
denominated in euro shall be made in euro.
(C) If and to the extent that any legislation in relation
to the Third Stage provides that an amount
denominated either in euro or in the national
currency unit of a given Participating Member State
and payable within that Participating Member State by
crediting an account of the creditor can be paid by
the debtor either in euro or in that national
currency unit, a party shall be entitled to pay that
amount either in euro or in the national currency
unit.
15.3 PAYMENTS THROUGH THE AGENT
(A) Normal arrangements: All payments by an Obligor 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 Obligor or the Lender for this
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purpose. The Agent will pay on an amount received as
soon as the Agent has ascertained that it has been
received.
(B) ALTERNATIVE ARRANGEMENTS: If the Agent believes that
it is, or will be, illegal or impossible for it to
pay on to a Lender in accordance with paragraph (A),
it agrees to notify the relevant Borrower and that
Lender. In this case the Borrower and that Lender may
agree alternative arrangements for payments to be
made to that Lender. Paragraph (A) will not apply to
the extent excluded by those alternative
arrangements. That Lender agrees to provide notice of
the arrangements to the Agent and will notify the
Agent of payments in accordance with Clause 17.1.
15.4 PAYMENTS TO A BORROWER
Each payment by the Agent to a Borrower will be made to the
account of the Borrower in the principal financial centre of
the country concerned (or, in the case of euros, London or a
principal financial centre of a Participating Member
State) as the Parent may notify to the Agent from time to time
or such other account as may be agreed.
15.5 PAYMENTS TO THE LENDERS
Each payment by the Agent to each Lender will be made to such
account of that Lender in the principal financial centre of
the country concerned (or, in the case of euros, London or a
principal financial centre of a Participating Member State) as
the Lender may notify to the Agent from time to time.
15.6 CHANGE OF ACCOUNT
The Parent or a Lender may change any of its receiving
accounts, or those for a particular Borrower, 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 Parent and each Lender.
15.7 REFUNDING OF PAYMENTS BY THE AGENT
This Clause 15.7 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 15.7 does not affect the rights of the person
which received the payment against the person which failed to
make the payment to the Agent.
15.8 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
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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.
15.9 PAYMENT IN FULL
All payments made by an Obligor 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 14.3 applies.
15.10 PARTIAL PAYMENTS
(A) If in relation to a Facility the Agent receives a
payment insufficient to discharge all the amounts then due
and payable by an Obligor under this Agreement, the Agent
shall apply that payment towards the obligations of the
Obligor(s) 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 under Clause 5.4 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) To the extent that a shortfall as described in
paragraph (A) arises in respect of both Facilities at
the same time, the Agent shall apportion amounts
between both Facilities on a pro rata basis to the
outstandings under the Facilities as determined by
reference to the applicable Exchange Rate .
(C) 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.
(D) Paragraphs (A), (B) and (C) above shall override any
appropriation made by an Obligor.
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16. LATE PAYMENT
16.1 DEFAULT INTEREST
Each Obligor 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 per cent. plus LIBOR for
that period plus the Applicable Margin plus, if relevant for
an Advance, 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.
16.2 INDEMNITY
If any Obligor fails to make a payment on the due date, such
Obligor 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 16.1.
17. SHARING AMONG LENDERS
17.1 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 an Obligor 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.
17.2 DETERMINATION BY THE AGENT
Where a Lender has issued a notice under Clause 17.1 the
Agent will determine what payments, if any, are due under
Clause 17.4. This determination will be made on the basis of
the information contained in all the notices delivered to the
Agent under Clause 17.1. The determination will be notified
to the Parent and the Lenders.
17.3 LITIGATION
In determining the amount due under Clause 17.4 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 17.1. This only applies if that
Lender could have joined in the proceedings or could have
instituted its own proceedings, but failed to do so.
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17.4 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 17.2.
17.5 OBLIGATIONS OF THE PARENT
Any amount due to the Recipient which would otherwise have
been discharged as described in Clause 17.1 will be treated
as not having been discharged to the extent of an amount
which is or will be payable under Clause 17.4 as a result.
Accordingly the Parent 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 17.2.
17.6 DISTRIBUTION
The Agent agrees to distribute to the Lenders the amount
received by it under Clause 17.4 as if that amount had been
received from an Obligor in discharge of an amount due under
the Agreement. That Obligor will then be treated as having
paid that amount.
17.7 RECOVERY
This Clause 17.7 applies if an amount discharged as described
in Clause 17.1 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 17.4 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 17.4.
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18. GUARANTEE
18.1 GUARANTEE
Each Guarantor guarantees the due and punctual performance of
all obligations of each Borrower (other than itself) under
this Agreement. This guarantee is unconditional and
irrevocable.
18.2 AGREEMENT TO PAY
Each Guarantor agrees to pay as if it were principal obligor
within three Business Days of demand each amount due by each
Borrower (other than itself) which is unpaid after the due
date therefor. The demand may be made at any time after the
due date for payment. Payment will be made in the same
currency as the amount due by the relevant Borrower.
18.3 CONTINUING GUARANTEE
This guarantee is a continuing guarantee. No payment or other
settlement will discharge each Guarantor's obligations until
the obligations of all the Borrowers have been discharged in
full.
18.4 OTHER GUARANTEES AND SECURITY
This guarantee is in addition to, and independent of, any
other guarantee or security.
18.5 ENFORCEMENT
This guarantee may be enforced before any steps are taken
against any Borrower or under any other guarantee or
security.
18.6 PRESERVATION OF RIGHTS
Subject to the proviso in paragraph (A), this guarantee will
only be discharged by receipt of irrevocable payment in full.
It will not be discharged by any other action, omission or
fact. Each Guarantor's obligations will, therefore, not be
affected by:
(A) The obligations of any Borrower being or becoming
void, invalid, illegal or unenforceable, except where
such obligations become void, invalid, illegal or
unenforceable as a result directly or indirectly of
the negligence of the Agent or any Lender or the
default or breach by the Agent or any Lender of any
mandate or contract between the Agent or any Lender
and such Borrower or any other person.
(B) Any change, waiver or release of the obligations of
any Borrower or any other person.
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(C) Any concession or time being given to any Borrower or any
other person.
(D) The winding-up or reorganisation of any Borrower or any other
person.
(E) Any change in the condition, nature or status of any Borrower
or any other person.
(F) Any of the above events occurring in relation to another
Guarantor or provider of security or its obligations.
(G) Any failure to take, retain or enforce any other guarantee or
security.
Any receipt from any person other than a Guarantor will reduce the
outstanding balance only to the extent of the amount received.
18.7 REPRESENTATIONS OF THE GUARANTOR
Each Guarantor confirms that it does not have the benefit of any
Encumbrance in respect of this guarantee or the indemnity in Clause 19.
18.8 COVENANTS OF THE GUARANTOR
Each Guarantor agrees as follows:
(A) SECURITY: It will not have the benefit of any Encumbrance in
respect of this guarantee or the indemnity in Clause 19.
(B) EXERCISE OF RIGHTS: It will not:
(i) in competition with the Agent or any Lender take the
benefit of any right against any Borrower or any
other person in respect of amounts paid under this
guarantee; or
(ii) other than in connection with any inter-company loan
with a Borrower before a claim has been made under
this guarantee and except insofar as all sums due and
payable by such Borrower under this Agreement shall
have been paid in full, claim or exercise against any
Borrower any right to any payment (whether or not in
connection with this Agreement);
(iii) (until all sums due and payable by such Borrower
under this Agreement shall have been irrevocably paid
in full) be subrogated to any rights, security or
moneys held, received or receivable by any Lender (or
any trustee or agent on its behalf) or be entitled to
any right of contribution or indemnity in respect of
any payment made or moneys received on account of a
Guarantor's liability under this Clause 18;
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(iv) (after a claim has been made under
this Clause 18 and until all sums due and
payable by such Borrower under this
Agreement shall have been irrevocably paid
in full) receive, claim or have the benefit
of any payment, distribution or security
from or on account of any Obligor, or
exercise any right of set-off as against any
Obligor.
A Guarantor shall hold in trust for and forthwith pay or transfer to
the Agent any payment or distribution or benefit of security received
by it contrary to this Clause 18.
The obligations in this Clause 18.8 will cease to have effect when the
Facilities have ceased to be available and there are no amounts
outstanding under the Facilities.
18.9 DISCHARGE CONDITIONAL
Any settlement with, or discharge of, a Guarantor will be subject to a
condition. This condition is that the settlement or discharge will be
set aside if any prior payment, or any other guarantee or security
relating to the obligations under this Agreement, is set aside,
invalidated or reduced. In this event each Guarantor agrees to
reimburse the Lender for the value of the payment, guarantee or
security which is set aside, invalidated or reduced.
18.10 APPROPRIATIONS
Until all amounts which may be or become payable by the Obligors under
or in connection with this Agreement have been irrevocably paid in
full, each Lender (or any trustee or agent on its behalf) may:
(A) refrain from applying or enforcing any other moneys, security
or rights held or received by that Lender (or any trustee or
agent on its behalf) in respect of those amounts, or apply and
enforce the same in such manner and order as it sees fit
(whether against those amounts or other) and no Guarantor
shall be entitled to the benefit of the same; and
(B) hold in a suspense account any moneys received from a
Guarantor or on account of a Guarantor's liability under this
Clause 18, and interest will accrue on those moneys on normal
commercial terms.
18.11 NEW GUARANTORS
Any Subsidiary or Subsidiary Undertaking of the Parent may become a
party to this Agreement as a Guarantor. The Parent shall procure such
Subsidiary or Subsidiary Undertaking to duly execute and deliver an
Additional Guarantor Agreement in the form set out in Schedule 6
together with the documents listed in the Schedule to Schedule 6. A
Subsidiary or Subsidiary Undertaking of the Parent will only become a
party to this Agreement as a Guarantor when the Agent receives, in form
and substance satisfactory to it, the documents listed in
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the Schedule to Schedule 6 and the Additional Guarantor
Agreement, and so notifies the Parent and the Lenders.
19. GUARANTOR'S INDEMNITY
19.1 INDEMNITY
If any Borrower fails to make a payment on the due date
therefor, each Guarantor agrees within three Business Days of
demand to reimburse the person entitled to the payment for the
losses and expenses that person incurs, or will incur, as a
result. Each Guarantor also agrees to reimburse the Agent or
each Lender for all losses and expenses reasonably incurred
and arising from any obligations of any Borrower being or
becoming void, invalid, illegal or unenforceable.
19.2 AMOUNT OF LOSS
For the purposes of this Clause 19, the Agent or any Lender
will be treated as having suffered a loss equal to the amount
expressed as being due to it by any Borrower. If this
treatment is incorrect the Agent or any Lender will produce
evidence of its loss.
20. RELEASE OF GUARANTORS
The Parent may request the release of any Guarantor (other
than the Parent) from its obligations under this Agreement by
sending a notice in writing to the Agent. The Agent agrees
that on a date not less than one month after receipt of such
notice such Guarantor shall (without prejudice to the
obligations of the other Guarantors) be released from its
obligations hereunder except with respect to any part of its
obligations incurred prior to that date and except insofar as
this would cause a breach of Clause 23(C) as at the date of
release or if an Event of Default or Potential Event of
Default is outstanding.
21. REPRESENTATIONS
21.1 INITIAL REPRESENTATIONS
Each Obligor confirms that each of the following is true:
(A) NATURE: It is a company duly incorporated and validly
existing under the laws of its jurisdiction of
incorporation.
(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.
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(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:
(i) are not prohibited by or will not contravene
any law or its Memorandum or Articles of
Association or its equivalent constitutional
documents; 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 in a 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 Facilities.
(J) COMPLIANCE WITH ENVIRONMENTAL LAWS It is in
compliance in all respects material in the context of
the Facilities with applicable laws relating to
environmental matters save that this paragraph shall
not apply to the Xxxxxxxx Group until after the
Clean-up Date.
(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
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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.
(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) U.S. REGULATORY REQUIREMENTS:
(i) No Borrower is an investment company under
the United States Investment Company Act of
1940, nor is it exempt from the provisions
of that Act pursuant to an exemption under
that Act, all of the conditions of which
have been and are being fulfilled.
(ii) None of the transactions contemplated in
this Agreement (including, without
limitation, the borrowings hereunder and the
use of the proceeds thereof) will violate or
result in a violation of Section 7 of the
Securities Exchange Act of 1934 (or any
regulations issued pursuant thereto,
including, without limitation, Regulations
T, U and X). "REGULATIONS T, U AND X" means,
respectively, regulations T, U and X of the
Board of Governors of the Federal Reserve
System of the United States (or any
successor).
(N) PUBLIC UTILITY HOLDING COMPANY ACT: No Borrower nor
any of the Subsidiaries or Subsidiary Undertakings of
any Borrower is a "holding company", or an
"affiliate" of a "holding company" or a "subsidiary
company" of a "holding company", within the meaning
of the United States of America Public Utility
Holding Company Act of 1935.
(O) 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 where a failure to do so could not reasonably
be expected to result in a Material Adverse Effect.
21.2 REPETITION
The representations in Clauses 21.1(A), (B), (C), (D), (G),
(I) (except for the second sentence thereof), (J), (K), (M),
(N) and (O) will be deemed repeated by the relevant Obligor in
each Advance Request and on each Advance Date and each
Acceptance Utilisation Date and on the first day of each
Interest Period. This repetition will be with reference to the
facts on that day.
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22. INFORMATION COVENANTS
The Parent agrees to deliver each of the following to the
Agent (upon request in sufficient copies for all the Lenders):
(A) Annual audited consolidated accounts of the Parent
prepared in accordance with generally accepted
accounting principles in the United Kingdom within
120 days of its financial year end.
(B) Interim unaudited consolidated accounts for the half
year of the Parent prepared in accordance with
generally accepted accounting principles in the
United Kingdom within 90 days of the end of the first
half of the financial year.
(C) Annual audited accounts for each Nominated Borrower
and Guarantor (other than the Parent) prepared in
accordance with generally accepted accounting
principles in the jurisdiction of incorporation of
that entity within 270 days of the end of its
financial year.
(D) At the same time as (A) and (B) a certificate signed
by two directors of the Parent that the Group is in
compliance with the covenants set out in Clause 23
or, as the case may be, is not in
compliance with any of the same and including a
calculation relating to such covenants. The
certificate will be substantially in the form set out
in Schedule 11.
(E) All circulars and notices despatched to its
shareholders or classes of creditors.
(F) All information reasonably requested by the Agent
(including details of the then current Material
Subsidiaries at each financial year end).
(G) Notice of any Event of Default or any Potential Event
of Default immediately after any Obligor becomes
aware of the same.
(H) 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 Parent.
23. FINANCIAL COVENANTS
The Parent shall procure that:
(A) Consolidated Net Worth shall not at any time fall
below an amount equal to pound sterling 550,000,000.
(B) In respect of each period of twelve months ending on
the dates to which the Parent's half year and annual
accounts are made up the ratio of Net Consolidated
Borrowings to Consolidated Earnings Before Interest
and Tax will not exceed:
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(i) up to and including 31st March, 2000,
4.00:1;
(ii) thereafter up to and including 31st March,
2002, 3.75:1; and
(iii) thereafter 3.50:1.
(C) The aggregate of:
(i) Borrowed Monies Indebtedness of the Parent's
Subsidiaries that are not Guarantors
(excluding inter-company loans from any
member of the Group and any Advances or
Acceptance Utilisation under the
Facilities); and
(ii) the principal amount secured by Encumbrances
granted over assets of the Parent or its
Subsidiaries (ignoring for this purpose any
Permitted Encumbrance within the ambit of
paragraphs (a), (b), (f) or (i) of the
definition thereof)
shall not at any time exceed 10 per cent. of
Consolidated Net Worth at such time.
For the purposes of this paragraph, only net Borrowed
Monies Indebtedness incurred under any notional
pooling scheme to be operated by the Group for the
management of the Group's cash resources shall be
taken into account and until the Clean-Up Date
Borrowed Monies Indebtedness of, and Encumbrances
created by, the Xxxxxxxx Group in existence at the
date of this Agreement shall be ignored.
(D) In respect of each period of twelve months ending on
the dates to which the Parent's half year and annual
accounts are made up (the first such period ending on
31st March, 1999), the ratio of Consolidated Earnings
Before Interest and Tax to Consolidated Net Interest
Payable shall not fall below 3.50:1.
(E) There shall be no change to its Accounting Reference
Date without the consent of an Instructing Group (not
to be unreasonably withheld or delayed).
24. GENERAL COVENANTS
24.1 COVENANTS
Each Obligor agrees as follows:
(A) RANKING OF OBLIGATIONS: Its obligations to each
Lender will rank as provided in Clause 21.1(E).
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(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;
(iii) disposals with the prior consent of an 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 either Facility or to the
extent that the Revolving Credit Facility is
cancelled in an amount equal to such proceeds; 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, and only if, even in the case of a
Permitted Encumbrance, it does not contravene Clause 23(C).
(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 (but this
undertaking shall not apply to any member of the Xxxxxxxx
Group until after the Clean-up Date).
(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) ERISA: If there is a U.S. Borrower, each member of the
Controlled Group is in compliance with the applicable
provisions of law, including ERISA, the Code and the
applicable minimum funding standard requirements of ERISA and
the Code with respect to each Plan except where such
non-compliance could reasonably be expected not to have a
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Material Adverse Effect. No Reportable Event which has or
could reasonably be expected to result in any material
liability has occurred with respect to any Plan. No member of
the Controlled Group has:
(i) sought a waiver of the minimum funding standard under
Section 412 of the Code in respect of any Plan; or
(ii) made any amendment to any Plan, which has resulted or
could result in the imposition of a lien or the
posting of a bond or other security under ERISA or
the Code.
Any member of the Xxxxxxxx Group shall be ignored for the
purpose of this undertaking until after the Clean-up Date.
(G) HEDGING: within 3 months of the Unconditional Date the Parent
will hedge a minimum of 25 per cent. of the Group's exposure
to an increase in interest rates on its anticipated Net
Consolidated Borrowings for a minimum period of two years. For
this purpose "hedge" includes any interest rate swap, cap,
collar, option, hedge, forward rate or other similar agreement
designed to protect against fluctuations in interest rates or
any fixed rate basis.
(H) THE OFFER
The Parent 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 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 Press Release, the Shareholder
Circular and the draft SEC filing made in relation to
the Offer has already been approved);
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(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.
(I) 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.
(J) DISCHARGE OF SECURITY: The Parent shall ensure that all
Encumbrances in relation to the Xxxxxxxx Group in existence on
the date that Xxxxxxxx becomes a Subsidiary of the Parent
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.
(K) ACQUISITIONS: The Parent 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).
(L) UNDERWRITING AGREEMENT: The Parent shall ensure that the
underwriting agreement of even date herewith relating to the
Rights Issue will not be amended without the consent of the
Instructing Group. This prohibition does not apply to
amendments made to correct manifest errors.
24.2 DURATION OF COVENANTS
The obligations of the Obligors under Clause 24.1 will cease to have
effect when the Facilities have ceased to be available and there are no
amounts outstanding under the Facilities.
25. EVENTS OF DEFAULT
25.1 EVENTS OF DEFAULT
Each of the following is an Event of Default:
(A) NON-PAYMENT OF SUMS DUE: Any Obligor 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
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the Obligor or any bank) within three Business Days of receiving
written notice from the Agent of non-payment.
(B) BREACH OF ANY OTHER OBLIGATIONS: Any Obligor 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 relevant
Obligor receiving written notice (specifying that
there 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 relevant
Obligor by the Agent.
However, neither the 15 Business Day grace period nor
the requirement to give notice will apply to a breach
of Clause 23(A), (B) or (D) or Clause 24.1(B).
(C) UNTRUE REPRESENTATIONS: Any representation or warranty made,
or deemed repeated, by any Obligor 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 any Obligor or Material
Subsidiary and, in the case of a distress, execution or other
process, is not discharged, dismissed or stayed within 15
Business Days.
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(F) INABILITY TO PAY DEBTS: Any Obligor 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 debts or 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.: Any Obligor or 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 an Obligor or Material Subsidiary,
other than:
(a) a bona fide reconstruction or amalgamation
of a company other than the Parent 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
Parent 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 an Obligor or 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) REPUDIATION OF GUARANTEES: The Parent or any Guarantor
repudiates its obligations under a Guarantee.
(I) 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.
(J) CESSATION OF BUSINESS: Other than in relation to a disposal
permitted by Clause 24.1(B) any Obligor or Material Subsidiary
ceases to carry on its business.
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(K) ANALOGOUS PROCEEDINGS: There occurs in relation to any Obligor
or 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.
(L) BRIDGING FACILITY: An event of default under the Bridging
Facility occurs.
(M) UNLAWFULNESS:
(i) It becomes unlawful for an Obligor to perform its
payment obligations under this Agreement; or
(ii) the guarantee of any Guarantor is ineffective or
is alleged by an Obligor to be ineffective for any
reason,
and in any such case the relevant Obligor or Guarantor is not
discharged from this Agreement in accordance with Clause 20 or
29.2 within 15 Business Days.
25.2 CONSEQUENCES OF AN EVENT OF DEFAULT
If an Event of Default occurs, the Agent may by notice to the Parent:
(A) cancel the Facilities and the Total Commitments or any of
them; and/or
(B) demand immediate repayment of any of the Advances; and/or
(C) demand immediate payment in respect of all outstanding Bills
which it has accepted of an amount calculated in accordance
with Clause 12.
The Agent agrees to deliver a notice under this Clause 25.2 if an
Instructing Group instructs the Agent to do so. In the case of
cancellation, the Lenders will be under no further obligation to make
an Advance or accept any Bills. In the case of a demand for repayment,
each Borrower agrees to pay the Lenders in accordance with the notice.
25.3 REPAYMENT
If there is an Event of Default, the relevant Borrower agrees to pay on
the date repayment is due interest accrued on any Advance made to it up
to that date. If the date repayment of the Advance is due is not the
last day of an Interest Period applicable to it, the relevant 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
that Advance. They may also include losses and expenses incurred in
hedging open positions resulting from the repayment.
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25.4 INDEMNITY
If there is an Event of Default, the Parent 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.
25.5 CURRENCY INDEMNITY
This Clause 25.5 applies where a payment due by any Obligor under or in
connection with this Agreement is made or is required to be made in a
currency other than the specified currency. To the extent that the
amount received, when converted into the specified currency, is less
than the amount due, the relevant Obligor agrees to reimburse the
Lender for the difference. For the purposes of the computation of this
amount the Lender will apply to the amount received a rate of exchange
prevailing on the date of receipt. If, however, the Lender is unable to
use the amount received to buy the specified currency on the date of
receipt, the rate of exchange prevailing on the first date on which the
Lender could buy the specified currency will be used instead. The
obligation in this Clause 25.5 is a separate and independent
obligation.
26. EVIDENCE AND CERTIFICATES
26.1 EVIDENCE OF DEBT
The Agent shall maintain on its books a control account or accounts in
which shall be recorded (a) the amount of any Advance and the face
amount of any Xxxx accepted (and in each case 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 Facilities 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.
26.2 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.
27. NOTICES
27.1 NATURE OF NOTICES
No notice delivered by any Obligor under this Agreement may be
withdrawn or revoked. Each notice delivered by any of them 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.
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27.2 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.
27.3 NOTICES THROUGH THE AGENT
Each notice from an Obligor 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.
27.4 ADDRESS DETAILS
Notices will be delivered to the address or number of the intended
recipient as set out on the signature page of this Agreement or other
document whereby it becomes a party to this Agreement. An Obligor or a
Lender may change its address or number by notice to the Agent. The
Agent may change its address or number by notice to the Parent and
each Lender.
28. ASSIGNMENT
28.1 OBLIGORS
The rights and obligations of the Obligors under this Agreement are
personal to them. Accordingly they are not capable of assignment.
28.2 LENDERS
(A) (i) Subject to sub-paragraph (A)(ii) below, a
Lender (the "Existing Lender") may assign, novate or
otherwise transfer its rights and obligations under
the Facilities in whole or in part to a Qualifying
Bank (the "New Lender"), provided, in the case of the
Revolving Facility only, it obtains the written
consent of the Parent in
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advance (not to be unreasonably withheld or
unreasonably delayed). No consent is required for an
assignment, transfer or novation to an Affiliate or
under the Term Loan Facility. Consent will be deemed
to have been given if not expressly refused within 5
Business Days.
(ii) Unless the Parent consents (such consent not to be
unreasonably withheld), a Lender falling within
paragraph (b) of the definition of "Qualifying Bank"
may not assign, novate or otherwise transfer its
rights under the Facilities in whole or in part to a
Lender falling within paragraph (a) of the definition
of "Qualifying Bank" unless the Advance in relation
to which such assignment, novation or transfer
relates was made by a bank within the meaning of
Section 349(3) of the Income and Corporation Taxes
Xxx 0000. Consent will be deemed to have been given
if not expressly refused within 10 Business Days.
(B) No assignment, novation or transfer of all or of part of a
Lender's rights or obligations under Clause 28.2 may:
(i) up to the date falling 60 days from close of general
syndication be on a non pro rata basis between the
Term Facility and Revolving Facility;
(ii) at any time if on a pro rata basis, be an amount of
less than pound sterling 5,000,000 (for the Revolving
Facility) and $5,000,000 (for the Term Facility);
(iii) thereafter if on a non pro rata basis, be an amount
of less than pound sterling 10,000,000 (for Revolving
Facility) and $5,000,000 (for the Term Facility) or
in each case the balance of its relevant Commitment.
(C) If, at any time, any Lender assigns any of its rights or
benefits hereunder or transfers all or any of its rights,
benefits and obligations hereunder or transfers its facility
office and, at the time of such assignment or transfer,
there arises an obligation on the part of a Borrower under
Clause 14 to pay to such Lender or its assignee or
transferee any amount in excess of the amount it would have
then been obliged to pay but for such assignment or
transfer, then that Borrower shall not be obliged to pay the
amount of such excess.
28.3 TRANSFERS BY LENDERS
(A) A transfer of obligations will be effective only if either:
(i) the obligations are novated in accordance with
Clause 28.4; or
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(ii) the New Lender confirms to the Agent and the
Parent that it undertakes to be bound by the terms of
this Agreement as a Lender in form and substance
satisfactory to the Agent and the Parent. On the
transfer becoming effective in this manner the Existing
Lender shall be relieved of its obligations under this
Agreement to the extent that they are transferred to
the New Lender.
(B) On each occasion (other than in connection with the initial
general syndication) an Existing Lender assigns, transfers or
novates any of its Commitment(s) rights and/or obligations under
the Agreement, the New Lender shall, on the date the assignment,
transfer and/or novation takes effect, pay to the Agent for its
own account a fee of pound sterling 1,000.
(C) An Existing Lender is not responsible to a New Lender for:
(i) the execution, genuineness, validity, enforceability or
sufficiency of this Agreement or any other document;
(ii) the collectability of amounts payable under this
Agreement; or
(iii) the accuracy of any statements (whether written or oral)
made in or in connection with this Agreement.
(D) Each New Lender confirms to the Existing Lender and the other
Lenders and the Agent and the Arrangers that it:
(i) has made its own independent investigation and assessment of
the financial condition and affairs of each Obligor and its
related entities in connection with its participation in
this Agreement and has not relied exclusively on any
information provided to it by the Existing Lender in
connection with this Agreement; and
(ii) will continue to make its own independent appraisal of the
creditworthiness of each Obligor and its related entities
while any amount is or may be outstanding under this
Agreement or any Commitment is in force.
(E) Nothing in this Agreement obliges an Existing Lender to:
(i) accept a re-transfer from a New Lender of any of the rights
and/or obligations assigned, transferred or novated under
this Clause; or
(ii) support any losses incurred by the New Lender by reason of
the non-performance by any Obligor of its obligations under
this Agreement or otherwise.
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(F) Any reference in this Agreement to a Lender includes a New
Lender, but excludes a Lender if no amount is or may be owed to
or by that Lender under this Agreement and its Commitment(s)
has/have been cancelled or reduced to nil.
28.4 PROCEDURE FOR NOVATIONS
(A) A novation is effected if:
(i) the Existing Lender and the New Lender deliver to the Agent
a duly completed certificate, substantially in the form of
Schedule 14; and
(ii) the Agent executes it which it may do within 5 Business
Days of receipt.
(B) Each Party (other than the Existing Lender and the New Lender)
irrevocably authorises the Agent to execute any duly completed
novation certificate on its behalf.
(C) To the extent that they are expressed to be the subject of the
novation in the novation certificate:
(i) the Existing Lender and the other parties to this
Agreement (the "EXISTING PARTIES") will be released from
their obligations to each other (the "DISCHARGED
OBLIGATIONS");
(ii) the New Lender and the existing Parties will assume
obligations towards each other which differ from the
discharged obligations only insofar as they are owed to or
assumed by the New Lender instead of the Existing Lender;
(iii) the rights of the Existing Lender against the existing
Parties and vice versa (the "DISCHARGED RIGHTS") will be
cancelled; and
(iv) the New Lender and the existing Parties will acquire rights
against each other which differ from the discharged rights
only insofar as they are exercisable by or against the New
lender instead of the Existing Lender,
all on the date of execution of the novation certificate by
the Agent or, if later, the date specified in the novation
certificate.
28.5 DISCLOSURE OF INFORMATION
(A) A Lender may disclose to one of its Affiliates or any person with
whom it is proposing to enter, or has entered into, any kind of
transfer, participation or other agreement in relation to this
Agreement:
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(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 Parent, 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 any Obligor 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
(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.
28.6 REGISTER
The Agent shall keep a register of all the Parties and shall supply
the Parent (free of charge) with a copy of the register on request.
The Agent shall notify the Parent within two Business Days of a change
in the composition of the Register.
29. ADDITIONAL BORROWERS
29.1 ADDITIONAL BORROWERS
(A) The Parent may nominate one or more of its Subsidiaries or
Subsidiary Undertakings as Nominated Borrowers if, unless the
Nominated Borrower is incorporated in the U.K., the Lenders agree
in advance.
(B) A Subsidiary or Subsidiary Undertaking will become a Nominated
Borrower upon the Agent receiving an Additional Borrower
Agreement
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duly executed by that Subsidiary or Subsidiary Undertaking and
the Parent, together with the documents referred to in Part 3 of
Schedule 2, each in a form and substance satisfactory to the
Agent.
(C) The Agent will notify the Parent and, where appropriate, the
Nominated Borrower promptly upon the requirements of paragraphs
(A) and (B) being met.
(D) Delivery of a duly executed Additional Borrower Agreement will
constitute confirmation by that Subsidiary or Subsidiary
Undertaking that the representations in Clause 21.1 are correct
on the date of the Additional Borrower Agreement, as if made by
it with reference to the facts and circumstances then existing.
29.2 WITHDRAWAL OF BORROWERS
(A) If no Event of Default or Potential Event of Default is
outstanding (other than under Clause 25.1(M)), the Parent may
procure that any Nominated Borrower ceases to be a Borrower under
this Agreement forthwith upon the Parent giving written notice to
the Agent.
(B) Upon such Nominated Borrower ceasing to be a Nominated Borrower
under this Agreement, the Parent shall immediately and without
further formality be substituted as the principal debtor in
respect of any amounts owed by such Nominated Borrower and the
Agent and each Lender shall thereupon cease to have any rights or
claims whatsoever against that Nominated Borrower in its capacity
as such, but without prejudice to any rights or claims against
that Nominated Borrower in its capacity as a Guarantor, Material
Subsidiary or otherwise. Following such substitution, all
references to such Nominated Borrower shall be construed and read
as if such references were to the Parent.
30. WAIVERS AND AMENDMENTS
30.1 WRITING REQUIRED
A waiver or amendment of a term of this Agreement will only be
effective if it is in writing.
30.2 AUTHORITY OF THE AGENT
If authorised by an Instructing Group, the Agent may grant waivers and
agree amendments with the Parent. 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 30.2 does not authorise the Agent to grant any waiver or agree
any amendment affecting any of the following:
(A) The amount of the Facilities.
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(B) The amount or method of calculation of interest or commitment fee
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 Facilities are available.
(F) The definition of "Instructing Group".
(G) Any requirement (including the one in this Clause 30.2) that all
the Lenders or a certain proportion of them consent to a matter
or deliver a notice.
(G) Clauses 4 (The Lenders), 17 (Sharing among Lenders) or 31 (The
Agent and the Arrangers).
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.
30.3 EXPENSES
The Parent agrees to reimburse the Agent and each Lender for the
expenses they reasonably incur as a result of any request made by any
Obligor to waive or amend a term of this Agreement.
31. THE AGENT, THE ARRANGERS AND THE LENDERS
31.1 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 Facilities together with all such rights, powers
and discretions as are reasonably incidental thereto.
31.2 THE AGENT MAY:
(A) assume that:
(i) any representation made by any Obligor 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
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(iii) no Obligor is 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 any Obligor upon a certificate
signed by or on behalf of such Obligor;
(E) rely upon any communication or document reasonably believed by it
to be genuine;
(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 Facilities 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
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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).
31.3 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 any Obligor;
(B) promptly notify each Lender of the occurrence of any Event of
Default or any default by any Obligor in the due performance of
or compliance with its obligations under this Agreement of which
the Agent has 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.
31.4 Notwithstanding anything to the contrary expressed or implied herein,
neither the Agent nor the Arrangers shall:
(A) be bound to enquire as to:
(i) whether or not any representation made by any Obligor 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 any Obligor of its obligations hereunder;
or
(iv) any breach of or default by any Obligor of or under its
obligations hereunder;
(B) be bound to account to any 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.
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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.
31.5 To the extent that the Agent is not indemnified on demand by the
Obligors and without limiting the liability of any Obligor, 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 31.5 will be limited to the share of the total losses
and expenses which corresponds to that Lender's share of the aggregate
of the Loan and the Uncancelled Facility Amount. 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.
31.6 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 any obligor 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.
31.7 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 31.6.
31.8 The agent and the arrangers may accept deposits from, lend money to and
generally engage in any kind of banking or other business with obligors
and the other members of the group.
31.9 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 Parent and the Lenders. The Agent may be removed by notice given by
an Instructing Group to the Agent and the Parent. In either case, an
Instructing Group may appoint a successor acceptable to the Parent
during such notice period but if it does not appoint such a successor
the Agent may (with the agreement of the Parent) 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 31.9 shall continue in effect for
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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 Parent and the Lenders and may forthwith
appoint one of its affiliates as successor Agent.
31.10 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 any Obligor
in connection with the Facilities 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
(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.
31.11 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 Parent, elsewhere) as
the Agent may from time to time select.
31.12 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 31.12, 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.
32. MISCELLANEOUS
32.1 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
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addition to any other rights and remedies it may have. Those other
rights and remedies are not affected by this Agreement.
32.2 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.
32.3 ENFORCEMENT COSTS
The Parent shall within 7 days of demand pay to each Lender or 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.
32.4 ACQUISITION FINANCING INDEMNITY
(A) The Parent 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 that Party as a result of the Offer
(whether or not made) or of it agreeing to finance or
refinance any acquisition by the Parent or any person acting
in concert with the Parent of any Xxxxxxxx Shares or arising
out of the use of proceeds of these Facilities ("relevant
litigation") except to the extent caused by its negligence or
misconduct.
(B) The relevant Party shall notify the Parent promptly upon
becoming aware, and in reasonable detail, of any relevant
litigation and shall keep the Parent 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 Parent 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 Parent.
(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 Parent before so doing.
(E) Notwithstanding paragraphs (A) to (D) above, a relevant Party
is not required to disclose to the Parent 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 a Party's policy. Any information disclosed by a Party to
the Parent under this Clause 32.4 shall be subject to the same
conditions of confidentiality as those set out in Clause 28.5
(Disclosure of information) in relation to disclosure to
potential transferees.
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32.5 STAMP DUTIES
The Parent 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.
32.6 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.
32.7 SET-OFF
If an Event of Default or Potential Event of Default has occurred, a
Lender may set off any matured obligation owed by an Obligor under this
Agreement (to the extent beneficially owned by that Lender) against any
obligation (whether or not matured) owed by that Lender to that
Obligor, regardless of the place of payment, booking branch or currency
of either obligation. If the obligations are in different currencies,
the Lender may convert either obligation at a market rate of exchange
in its usual course of business for the purpose of the set-off. If
either obligation is unliquidated or unascertained, the Lender may set
off in an amount estimated by it in good faith to be the amount of that
obligation.
33. LANGUAGE
(A) Any notice given under or in connection with this Agreement
shall be in English.
(B) All other documents provided under or in connection with this
Agreement shall be:
(i) in English; or
(ii) if not in English, accompanied by a certified English
translation and, in this case, the English
translation shall prevail unless the document is a
statutory or other official document.
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34. JURISDICTION
34.1 SUBMISSION
For the benefit of the Agent and each Lender, each Obligor agrees that
the courts of England have jurisdiction to settle any disputes in
connection with this Agreement and accordingly submits to the
jurisdiction of the English courts.
34.2 SERVICE OF PROCESS
Without prejudice to any other mode of service, each Obligor (other
than an Obligor incorporated in England and Wales):
(A) irrevocably appoints the Parent as its agent for service of
process in relation to any proceedings before the English
courts in connection with this Agreement;
(B) agrees that failure by the Parent to notify the Obligor of the
process will not invalidate the proceedings concerned; and
(C) consents to the service of process relating to any such
proceedings by prepaid posting of a copy of the process to its
address for the time being applying under Clause 27.
34.3 FORUM CONVENIENCE AND ENFORCEMENT ABROAD
Each Borrower:
(A) waives objection to the English courts on grounds of
inconvenient forum or otherwise as regards proceedings in
connection with this Agreement; and
(B) agrees that a judgment or order of an English court in
connection with this Agreement is conclusive and binding on it
and may be enforced against it in the courts of any other
jurisdiction.
34.4 NON-EXCLUSIVITY
Nothing in this Clause 34 limits the right of the Agent or a Lender to
bring proceedings against an Obligor in connection with this Agreement:
(A) in any other court of competent jurisdiction; or
(B) concurrently in more than one jurisdiction.
35. LAW
This Agreement is to be governed by and construed in accordance with
English law.
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IN WITNESS whereof this Agreement has been signed on behalf of the
Parties.
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SCHEDULE 1
LENDERS AND COMMITMENTS
TERM LOAN
REVOLVING COMMITMENT COMMITMENT
LENDER POUND STERLING $
------ -------------------- ----------
BARCLAYS BANK PLC 108,333,333.34 293,333,333.34
DEN DANSKE BANK 108,333,333.33 293,333,333.33
AKTIESELSKAB
DEUTSCHE BANK AG 108,333,333.33 293,333,333.33
-------------- ---------------
LONDON
pound sterling 325,000,000.00 $880,000,000.00
=============== ===============
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SCHEDULE 2
CONDITIONS PRECEDENT
Part 1
General
1. A copy of the Memorandum and Articles of Association and Certificate of
Incorporation of the Parent. The copy must be certified by a director
or the secretary of the Parent to be true, complete and in full force
and effect.
2. A copy of a resolution of the board of directors of the Parent
appointing a Committee and granting it authority to enter into loan
facilities and guarantees each up to the full amount of the Facilities
on behalf of the Parent. A copy of a resolution of the Committee
approving the Facilities, 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 Parent 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 Parent to be genuine.
4. A legal opinion from Xxxxx & Overy, legal advisers to the Arrangers, in
the form set out in Schedule 10.
5. A certificate of a director of the Parent confirming that utilisation
of the Facilities 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 Parent's existing banking facilities as a result of the Offer have
been waived.
6. A copy of the underwriting agreement relating to the Rights Issue. The
copy must be certified by a director or the secretary of the Parent to
be genuine and complete.
PART 2
OTHER DOCUMENTATION
1. A copy of the Offer Document (in a form not materially inconsistent
with the Press Release), the Shareholders Circular and the Press
Release. The copies must be certified by a director or the secretary of
the Parent to be genuine and complete.
2. Evidence that the Parent's shareholders have approved the acquisition
of Xxxxxxxx and the increase in the Parent's borrowing powers.
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3. Evidence that the Parent, 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 Parent
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 all 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.
PART 3
NOMINATED BORROWER
1. An Additional Borrower Agreement, duly executed by the Nominated
Borrower and the Parent.
2. A copy of the Memorandum and Articles of Association and Certificate of
Incorporation of the Nominated Borrower (or, if the Nominated Borrower
is not incorporated in England and Wales, a copy of equivalent
constitutional documents). The copy must be certified by a director or
the secretary of the Nominated Borrower to be true, complete and in
full force and effect.
3. A copy of a resolution of the board of directors of the Nominated
Borrower approving the Facilities, authorising the signature and
delivery of the Additional Borrower Agreement, appointing Authorised
Signatories and authorising the Parent to act as agent pursuant to this
Agreement. The copy must be certified by a director or the secretary of
the Nominated Borrower to be a true, complete and in full force and
effect.
4. Specimen signatures of Authorised Signatories appointed by the
resolution referred to in paragraph 3 above. These signatures must be
certified by a director or the secretary of the Nominated Borrower to
be genuine.
5. Where the Nominated Borrower is not incorporated in England and Wales,
a legal opinion from counsel in the jurisdiction of incorporation of
the Nominated Borrower in form and substance satisfactory to the Agent.
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6. A legal opinion from a firm of solicitors, acting as English legal
advisers to the Agent, in form and substance satisfactory to the Agent.
7. A copy of any other authorisation or other document which is necessary
in connection with the entry into and performance of the Additional
Borrower Agreement, or the transactions contemplated by the Additional
Borrower Agreement, or for the validity or enforceability of the
Additional Borrower Agreement.
8. If produced, the latest audited accounts of the Nominated Borrower.
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SCHEDULE 3
FORM OF ADVANCE REQUEST
[Date]
Barclays Bank PLC
[Address]
Dear Sirs
Multi-currency Sterling Revolving Credit, Xxxxxxxx Xxxx Acceptance and Dollar
Term Loan Facilities Agreement dated 15th December, 1998
We refer to the above agreement between yourselves as Agent and [us/EMAP plc] as
parent, borrower and guarantor (the "Agreement"). Terms defined in the Agreement
have the same meaning in this confirmation.
We [on our own behalf/as agent for [ ]] would like the Lenders to make an
Advance under the Agreement as follows:
Facility:
Borrower:
Advance Date:
Amount of the Advance:
Interest Period:
Day Count Fraction:
Settlement Instructions:
Payments by EMAP
Bank
Sort Code/Swift Code
Account number
Account name
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Payments to EMAP
Bank
Sort Code/Swift Code
Account number
Account name
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
-----------
* Delete to the extent Clause 7.3(D) applies.
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SCHEDULE 4
FORM OF ACCEPTANCE UTILISATION REQUEST
[Date]
Barclays Bank PLC
[Address]
Dear Sirs
XXXX ACCEPTANCE FACILITY UNDER MULTI-CURRENCY STERLING REVOLVING CREDIT,
XXXXXXXX XXXX ACCEPTANCE AND DOLLAR TERM LOAN FACILITIES AGREEMENT DATED 15TH
DECEMBER, 1998
CONTRACT REFERENCE: l
We refer to the above agreement between yourselves as Agent and [us/EMAP plc] as
parent, borrower and guarantor (the "Agreement"). Terms defined in the Agreement
have the same meaning in this confirmation.
We [on our own behalf/as agent for [ ]] would like the Lenders to accept Bills
under the Xxxx Acceptance Facility as follows:
Facility: Xxxx Acceptance Facility under the Revolving Credit Facility
Borrower:
Acceptance Utilisation Date:
Face amount of the Bills:
Tenor:
Settlement Instructions:
Payments by EMAP
Bank
Sort Code/Swift Code
Account number
Account name
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Payments to EMAP
Bank
Sort Code/Swift Code
Account number
Account name
We confirm that on [date of request] and on the Acceptance Utilisation 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 Acceptance Utilisation.
Yours faithfully
AUTHORISED SIGNATORY
----------
* Delete if Rollover Utilisation -.
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SCHEDULE 5
FORM OF ADDITIONAL BORROWER AGREEMENT
[Date]
To: Barclays Bank PLC
[Address]
Dear Sirs
Multi-currency Sterling Revolving Credit, Xxxxxxxx Xxxx Acceptance and Dollar
Term Loan Facilities Agreement dated 15th December, 1998
We refer to Clause 29.1 of the above agreement (the "Loan Agreement").
[Name of Company] of [Registered Office] (Registered no. [ ]) agrees to become a
Nominated Borrower and to be bound by the terms of the Loan Agreement as a
Nominated Borrower in accordance with Clause 29.1 of the Loan Agreement.
This Agreement and the Loan Agreement will be read and construed as one
document.
Our address and number for notices for the purpose of Clause 27 is:
[ ].
This Agreement is governed by English law.
Yours faithfully
AUTHORISED SIGNATORY AUTHORISED SIGNATORY
[Proposed Nominated Borrower]
AUTHORISED SIGNATORY AUTHORISED SIGNATORY
EMAP plc
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SCHEDULE 6
FORM OF ADDITIONAL GUARANTOR AGREEMENT
ADDITIONAL GUARANTOR AGREEMENT
DATE :
PARTIES
1. [ ], a company incorporated in [ ],
of [address] (the "NEW GUARANTOR")
2. EMAP PLC, a company incorporated in England (number l), of l on its own
behalf and on behalf of each Guarantor (as defined in the Loan
Agreement referred to below)
3. BARCLAYS BANK PLC on its own behalf and on behalf of each Lender (as
defined in the Loan Agreement) (the "AGENT").
BACKGROUND
A Multi-currency Sterling Revolving Credit, Xxxxxxxx Xxxx Acceptance and Dollar
Term Loan Facilities Agreement (the "LOAN AGREEMENT") was made on 15th December,
1998 between (1) EMAP plc, (2) the Lenders, (3) the Arrangers and (4) the Agent
(each as defined in the Loan Agreement). Under the terms of the Loan Agreement
the Lenders agreed to provide to the Borrowers credit facilities of pound
sterling 325,000,000 and U.S. $880,000,000.
Under Clause 18.11 of the Loan Agreement the New Guarantor is to become a
Guarantor.
The parties agree as follows:
1. INTERPRETATION
Unless a contrary intention is indicated, words and expressions defined
in the Loan Agreement will have the same meanings when used in this
Agreement. References to the Loan Agreement are to that agreement as
amended or supplemented.
2. CONDITIONS PRECEDENT
Clause 3 will take effect when the Agent has received all the items
listed in the Schedule in a form satisfactory to the Agent.
3. INCORPORATION OF ADDITIONAL GUARANTOR
With effect from the date of this Agreement the New Guarantor will:
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(a) become a party to the Loan Agreement as if it had been an
original signatory as a guarantor; and
(b) become a "GUARANTOR" within the definition in Clause 1.1 of
the Loan Agreement.
The New Guarantor, the Borrowers, each other Guarantor, the Agent and
each Lender agree to be bound by the Loan Agreement on this basis.
4. REPRESENTATIONS BY THE NEW GUARANTOR
The New Guarantor confirms that the representations in Clause 21.1 of
the Loan Agreement, if stated at the date of this Agreement with
reference to the New Guarantor and the facts subsisting on the date of
this Agreement, are true.
5. CONSTRUCTION
This Agreement and the Loan Agreement will be read and construed as one
document. References in the Loan Agreement to the Loan Agreement
(however expressed) will be read and construed as references to the
Loan Agreement and this Agreement.
6. NOTICES
The notice details of the New Guarantor for the purpose of Clause 27.4
are as follows:
Address: [ ]
Telephone number: [ ]
Fax number: [ ]
Attention: [ ]
7. LAW
This Agreement is to be governed by and construed in accordance with
English law. The New Guarantor intends to execute this Agreement as a
deed and agrees to execute and deliver it as a deed.
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THE SCHEDULE
CONDITIONS PRECEDENT
1. A copy of the Certificate of Incorporation and the Memorandum and
Articles of Association of the New Guarantor (or, if the New Guarantor
is not incorporated in England and Wales, a copy of equivalent
constitutional documents). Each copy must be certified by a director or
the secretary of the New Guarantor to be true, complete and in full
force and effect.
2. A copy of a resolution of the board of directors of the New Guarantor
approving the Facilities and the Guarantee, authorising the signature
and delivery of this Agreement and appointing Authorised Signatories.
The copy must be certified by a director or the secretary of the New
Guarantor 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 New Guarantor to be
genuine.
4. Where the New Guarantor is not incorporated in England and Wales, a
legal opinion from counsel in the jurisdiction of incorporation of the
New Guarantor in form and substance satisfactory to the Agent.
5. A legal opinion from a firm of solicitors, acting as English legal
advisers to the Agent, in form and substance satisfactory to the Agent.
6. A copy of any other authorisation or other document which is necessary
in connection with the entry into and performance of the Additional
Guarantor Agreement, or the transactions contemplated by the Additional
Guarantor Agreement, or for the validity or enforceability of the
Additional Guarantor Agreement.
7. If produced, the latest audited accounts of the New Guarantor.
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SIGNATURES
[Name of New Guarantor]
Executed as a deed by the signatures
of a director and the secretary or of
two directors of the company
By: (Director)
By: (Director/Secretary)
EMAP PLC
By:
[AGENT]
By:
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SCHEDULE 7
FORM OF POWER OF ATTORNEY
To: Barclays Bank PLC
Date: [ ]
Dear Sirs,
Multi-currency Sterling Revolving Credit, Xxxxxxxx Xxxx Acceptance and Dollar
Term Loan Facilities Agreement dated 15th December, 1998
1. We refer to the above agreement between you as Agent, us as a Borrower
and various other parties (the "Agreement"). Terms defined in the
Agreement shall have the same meaning herein.
2. The Agreement envisages that a Borrower shall ensure upon delivery of
any Acceptance Utilisation Request that the Agent has a sufficient
stock of blank signed Bills to enable it to proceed with the Acceptance
Utilisation.
3. We hereby appoint you our true and lawful attorney for and in our name
and on our behalf to do or execute all or any of the acts and things
set out below upon receipt of an Acceptance Utilisation Request from
us:
(a) to draw a Xxxx or Bills on our behalf;
(b) to sign on each requested Xxxx as drawer on our behalf and, if
appropriate to endorse on our behalf an appropriate number of
Bills for appropriate amounts (in accordance with the terms of
the Agreement) drawn upon you (such endorsement to be at your
sole discretion a blank endorsement or a special endorsement
(as such expressions are defined in the Bills of Exchange Act
1882) to the order of the party with whom you have arranged
discounting of such Xxxx or Bills); and
in accordance with an Acceptance Utilisation Request PROVIDED that the
aforesaid signature and endorsement shall be executed in your name as
our agent by the signature of two of your authorised signatories.
4. We ratify and confirm and agree to ratify and confirm everything you
shall do or purport to do by virtue of this Power of Attorney.
5. We authorise and empower you to acknowledge in our name and as our act
and deed this Power of Attorney and to do any and every other act and
thing which
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may be necessary or proper for authenticating and giving full effect to
this Power of Attorney according to the laws of England.
6. In consideration of you agreeing to pay to us all proceeds pursuant to
Clause 12 of the Agreement, this Power of Attorney is given to secure
the performance of the obligations owed by us to you under the
Agreement and is therefore irrevocable for as long as those obligations
remain undischarged.
7. This Power of Attorney shall be governed by and construed in accordance
with English law.
SIGNED as a deed by [ )
] acting by its Director and its)
Director/Secretary ) ..............Director
..............Director/
Secretary
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SCHEDULE 8
FORM OF XXXX OF EXCHANGE
Face of Xxxx
No. for pound sterling.................
............................................. 19....
To
On ............................................. 19.... pay against this Xxxx of
Exchange to our order the sum of .............................................
for value received against current receivables due in respect of consumer
magazine publishing, the provision of business to business communications media
and operating radio and cable TV stations.
Accepted by:
For and on behalf of For and on behalf of
[Accepting Lender] [The Borrower]
...................... .....................
Authorised Signatory Authorised Signatory
REVERSE OF XXXX
For and on behalf of
[The Borrower]
.....................
Authorised Signatory
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SCHEDULE 9
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 formulae:
in relation to Sterling Advances: XL + S(L - D) + F x 0.01
------------------------
100 - (X + S)
in relation to other Advances: F x 0.01
--------
300
where on the day of application of a 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 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
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D is the percentage rate per annum payable by the Bank of England to such
Reference Bank on Special Deposits.
(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 10
FORM OF LEGAL OPINION FROM ARRANGERS' ADVISER
To: The Agent and the Lenders (as at the date
of the Credit Agreement) [Date]
Dear Sirs,
EMAP plc (the "Company") - Multi-currency Sterling Revolving Credit, Xxxxxxxx
Xxxx Acceptance and Dollar Term Loan Facilities 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;
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(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 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.
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(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,
(a) at 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; or
(b) resident in a country with which the United Kingdom has an
appropriate double taxation treaty under which that
institution is entitled to receive interest without deduction
or withholding of UK income tax and in respect of which the
Company has received a direction from the UK Inland Revenue
enabling it to make payments without deduction or withholding
of tax.
(1) REGISTRATION REQUIREMENTS: It is not necessary or advisable to file,
register or record the Credit Agreement in any public place or
elsewhere in England.
(2) 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 non-conclusively 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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SCHEDULE 11
FORM OF COMPLIANCE CERTIFICATE
EMAP plc
Compliance with bank covenants at x
December 1998 Facility
Financial Covenant 23(A)
Consolidated Net Worth shall not at any time fall below an amount equal to pound
sterling 550,000,000.
Consolidated Net Worth x
Minimum threshold pound sterling 550 million
FINANCIAL COVENANT 23(B)
In respect of each period of twelve months ending on the dates to which the
Parent's half year and annual accounts are made up the ratio of Net Consolidated
Borrowings to Consolidated Earnings Before Interest and Tax will not exceed:
(i) up to and including 31st March, 2000, 4.00:1;
(ii) up to and including 31st March, 2002, 3.75:1; and
(iii) thereafter 3.50:1.
Net Consolidated Borrowings: Consolidated Earnings Before Interest and x : x
Tax
FINANCIAL COVENANT 23(C)
The aggregate of:
(i) Borrowed Monies Indebtedness of the Parent's Subsidiaries that are not
Guarantors (excluding inter-company loans from any member of the Group
and any Advances or Acceptance Utilisation under the Facilities); and
(ii) the principal amount secured by Encumbrances granted over assets of the
Parent or its Subsidiaries (ignoring for this purpose any Permitted
Encumbrances within the ambit of paragraphs (a), (b), (f) or (i) of the
definition thereof)
shall not at any time exceed 10 per cent. of Consolidated Net Worth at such
time.
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For this purpose only net Borrowed Monies Indebtedness incurred under any
notional pooling scheme to be granted by the Group for the management of the
Group's cash resources shall be taken into account and until the Clean-Up Date
Borrowed Monies Indebtedness of the Xxxxxxxx Group in existence at the date of
the Agreement shall be ignored.
Borrowed Monies Indebtedness of Subsidiaries that are not Guarantors x
Maximum Threshold x
FINANCIAL COVENANT 23(D)
In respect of each period of twelve months ending on the dates to which the
Parent's half year and annual accounts are made up (the first such period ending
on 31st March, 1999), the ratio of Consolidated Earnings Before Interest and Tax
to Consolidated Net Interest Payable shall not fall below 3.50:1.
Consolidated Earnings Before Interest and Tax: Consolidated Net x : x
Interest Payable
We confirm (a) the amounts of Consolidated Net Worth, Net Consolidated
Borrowings and the aggregate of Borrowed Monies Indebtedness of our Subsidiaries
that are not Guarantors (excluding inter-company loans) and the amount secured
by Encumbrances as aforesaid, all as the date to which our accounts are drawn
up, being [ ]; (b) the amounts of Consolidated Earnings before Interest
and Tax and Consolidated Net Interest Payable, both for the twelve month period
ending on the date to which the Parent's accounts were made up; (c) to the
extent necessary for monitoring the undertakings set out in Clause 23, the
ratios that such amounts bear to each other. Supporting calculations are
provided on the attached schedules.
......................... ..........................
DIRECTOR DIRECTOR
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SCHEDULE 12
NOVATION CERTIFICATE
To: BARCLAYS BANK PLC as Agent
From: [THE EXISTING LENDER] and [THE NEW LENDER] Date:[ ]
EMAP plc - Multi-currency Sterling Revolving Credit Xxxxxxxx Xxxx Acceptance and
Dollar Term Loan Facilities Agreement dated 15th December, 1998
(the "Agreement").
We refer to Clause 28.3 of the Agreement.
- We [ ] (the "EXISTING LENDER") and [ ] (the "NEW LENDER") agree to the
Existing Lender and the New Lender novating all of the Existing
Lender's Commitment(s) and/or rights and obligations as are referred to
in the Schedule in accordance with Clause 28.4 of the Agreement.
- The specified date for the purposes of Clause 28.4(C) of the Agreement
is [date of novation].
- The facility office and address for notices of the New Lender for the
purposes of Clause 27 of the Agreement are set out in the Schedule.
- This Novation Certificate is governed by English law.
THE SCHEDULE
COMMITMENT(S)/RIGHTS AND OBLIGATIONS TO BE NOVATED
[Details of the Commitment(s)/rights and obligations of the Existing Lender to
be novated].
[NEW LENDER]
[Facility Office Address for notices]
[Existing Lender] [New Lender] [BARCLAYS BANK PLC]
By: By: By:
Date: Date: Date:
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SCHEDULE 13
TIMETABLES
In this Schedule 13:
A = Agent
D = Acceptance Utilisation Date or Advance Date
D-[x] = x Business Days before the relevant Acceptance Utilisation
Date or Advance Date
L = Lender
REVOLVING CREDIT FACILITY
TIME
-----------------------------------
CLAUSE EVENT STERLING ANY OTHER CURRENCY
----------- -------------------------------------- ---------- ------------------
7.1 A receives Advance Request X-0 X-0
3.00 p.m. 3.00 p.m.
7.1 A notifies Ls of details of Advance X-0 X-0
Request and amount of each L's 5.00 p.m. 5.00 p.m.
Advance
8.2 L notifies A that it cannot fund in an _ D-2
Optional Currency 10:45 a.m.
Definition LIBOR fixing D D-2
11.00 a.m. 11.00 a.m.
_ A notifies Borrower of LIBOR D D-2
11:30 a.m. 11:30 a.m.
8.2 A notifies Borrower that Advance will _ D-2
not be made 11.30 a.m.
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TERM LOAN FACILITY
TIME
-----------------------------------
CLAUSE EVENT STERLING ANY OTHER CURRENCY
----------- -------------------------------------- ---------- ------------------
7.1 A receives Advance Request X-0 X-0
9.3(A) A receives notice of selection of 3.00 P.M. 3.00 P.M.
Interest Period
7.1 A notifies Ls of details of Advance X-0 X-0
Request/Interest Period and (in case of
9.3(A) Clause 7.1) amount of each L's 5.00 P.M. 5.00 P.M.
Advance
8.2 L notifies A that it cannot fund in an _ D-2
Optional Currency 9.30 A.M.
DEFINITION LIBOR fixing D D-2
11.00 A.M. 11.00 A.M.
_ A notifies Borrower of LIBOR D D-2
11:30 A.M. 11:30 A.M.
8.2 A notifies Borrower that Advance will _ D-2
not be made 11.30 A.M.
XXXX ACCEPTANCE FACILITY - CLAUSE 12
CLAUSE EVENT TIME
------ ------------------------------------------------------- ----------
12.1 A receives Acceptance Utilisation Request D-1
3.00 P.M.
12.3 A notifies LS of details of Acceptance Utilisation D-1
Request and Bills to be accepted by each L 5.00 P.M.
12.4 IF applicable, L notifies A of election to make a D
Revolving Advance 10.30 A.M.
12.7 IF applicable, L notifies A that A will not be required D
to discount Bills 10.30 A.M.
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12.5 A elects whether or not to purchase any Bills D
11.00 A.M.
DEFINITION Eligible Xxxx Discount Rate fixing D
11.00 A.M.
12.4 If applicable, LIBOR fixing D
11.00 A.M.
12.3 A notifies the Borrower and relevant Ls of Eligible D
Xxxx Discount Rate 11.30 A.M.
12.3 If applicable, A delivers Bills to Ls D
noon
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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 Xxxxxx X Xxxx
Position: Head of Syndications Manager, Syndications
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
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 Xxxxxx X Xxxx
Position: Head of Syndications Manager, Syndications
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
