Exhibit (B)(1)
CONFORMED COPY
AGREEMENT
DATED 27th April, 1998
(Pounds)500,000,000
MULTICURRENCY REVOLVING CREDIT FACILITY
FOR
TI GROUP plc
ARRANGED BY
ABN AMRO BANK N.V.
CITIBANK, N.A.
MIDLAND BANK plc
XXXXX & XXXXX
London
BK:236837.5
INDEX
CLAUSE PAGE
1. Interpretation.....................................................1
2. The Facilities....................................................15
3. Purpose...........................................................16
4. Conditions precedent..............................................16
5. Drawdown and Term-Out Option......................................17
6. Repayment.........................................................18
7. Prepayment and cancellation.......................................19
8. Interest Periods..................................................21
9. Interest..........................................................22
10. Optional Currencies...............................................24
11. Amount of Optional Currencies.....................................26
12. Payments..........................................................27
13. Taxes.............................................................29
14. Market Disruption.................................................31
15. Increased Costs...................................................33
16. Illegality........................................................34
17. Guarantee.........................................................34
18. Representations and warranties....................................36
19. Undertakings......................................................38
20. Default...........................................................45
21. The Agent and the Arrangers.......................................48
22. Fees..............................................................53
23. Expenses..........................................................54
24. Stamp Duties......................................................54
25. Indemnities.......................................................54
26. Evidence and calculations.........................................56
27. Amendments and waivers............................................56
28. Changes to the Parties............................................57
29. Disclosure of information.........................................60
30. Set-off...........................................................60
31. Pro rata sharing..................................................61
32. Severability......................................................62
33. Economic and monetary union.......................................62
34. Counterparts......................................................64
35. Notices...........................................................64
36. Language..........................................................65
37. Jurisdiction......................................................65
38. Governing law.....................................................66
SCHEDULES
1. Banks and Commitments.............................................67
Part I - Banks and Commitments - Facility A.......................67
Part II - Banks and Commitments - Facility B......................67
2. Conditions Precedent Documents....................................68
Part I - To be delivered before the First Loan....................68
Part II - To be delivered by an Additional Borrower...............69
3. Calculation of the MLA Cost.......................................70
4. Form of Request...................................................72
5. Forms of Accession Documents......................................73
Part I - Novation Certificate.....................................73
Part II - Borrower Accession Agreement............................74
Signatories............................................................75
THIS AGREEMENT is dated 27th April, 1998 between:
(1) TI GROUP plc of 00 Xxxxxx Xxxxxx, Xxxxxx X0X 0XX (the "COMPANY");
(2) TI INTERNATIONAL HOLDINGS LIMITED of 00 Xxxxxx Xxxxxx, Xxxxxx, X0X 0XX
("TIIH");
(3) ABN AMRO BANK N.V., CITIBANK, N.A. and MIDLAND BANK plc as arrangers (in
this capacity the "ARRANGERS");
(4) THE FINANCIAL INSTITUTIONS listed in Schedule 1 as banks (the "BANKS"); and
(5) HSBC INVESTMENT BANK plc as agent (in this capacity the "AGENT").
IT IS AGREED as follows:
1. INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"Additional Borrower"
means a member of the Group which becomes a Borrower in accordance with
Clause 28.4 (Additional Borrowers).
"Affiliate"
means a Subsidiary or a Holding Company (as defined in Section 736 of the
Companies Act 1985) of a person or any other Subsidiary of that Holding
Company.
"Agent's Spot Rate of Exchange"
means the Agent's spot rate of exchange for the purchase of the relevant
Optional Currency in the London foreign exchange market with Sterling at or
about 11.00 a.m. on a particular day.
"Borrower"
means the Company, TIIH or an Additional Borrower.
"Borrower Accession Agreement"
means a letter in the form of Part II of Schedule 5 with such amendments as
the Agent and the Company may agree.
"Business Day"
means a day (other than a Saturday or a Sunday) on which banks are open for
business in:
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(a) London; and
(b) in relation to a transaction involving an Optional Currency (other
than ECU prior to EMU or euros), the principal financial centre of the
country of that Optional Currency; and
(c) in relation to a transaction involving ECU (prior to EMU), Paris and
Brussels.
"Commencement Date"
means the date of commencement of the third stage of EMU as contemplated by
the Treaty (expected, as at the date of this Agreement, to be 1st January,
1999).
"Commitment"
means a Facility A Commitment or a Facility B Commitment.
"Commitment Period"
means the Facility A Commitment Period or the Facility B Commitment Period.
"Compliance Certificate"
means any certificate supplied to the Agent pursuant to Clause 19.4
(Compliance Certificates).
"Dangerous Substances"
means any radioactive emissions and any natural or artificial substance
(whether in solid or liquid form or in the form of a gas or vapour), the
generation, transportation, storage, treatment, use or disposal of which
(whether alone or in combination with any other substance) gives a risk of
causing harm to man or any other living organism or damaging in any
material respect the Environment or public health or welfare, including,
but not limited to, any controlled, special, hazardous, toxic, radioactive
or dangerous waste.
"Default"
means an Event of Default or a Potential Event of Default.
"Drawdown Date"
means the date of the advance of a Loan.
"ECU"
means the ECU, as referred to in Article 109(g) of the Treaty and as
defined in Council Regulation (EC) No. 3320/94 that is from time to time
used as the unit of account of the European Union. Changes to the ECU may
be made by the European Union, in which event the ECU will change
accordingly.
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"EMU"
means Economic and Monetary Union as contemplated in the Treaty.
"euro"
means the single currency to be introduced on the Commencement Date.
"Encumbrance"
means any mortgage, pledge, lien, charge, assignment by way of security or
hypothecation and, in relation to a jurisdiction other than England and
Wales, any other agreement or arrangement having a similar effect to any of
the foregoing (but expressly excluding title retention).
"Environment"
means the environment as defined in section 1(2) of the Environmental
Protection Xxx 0000.
"Environmental Law"
means any common or statutory law, regulation, code of practice, circular,
guidance note and the like (whether or not having the force of law but in
respect of which compliance is customary) concerning the protection of
human health, any living organism, the workplace or the Environment or
Dangerous Substances.
"Event of Default"
means an event specified as such in Clause 20.1 (Events of Default).
"Facility"
means Facility A or Facility B.
"Facility A"
means the revolving credit facility referred to in Clause 2.1(a)(i) (The
Facilities).
"Facility A Commitment"
means :
(a) in relation to a Bank which is a Bank on the date of this Agreement,
the amount in Sterling set opposite its name in Part I of Schedule 1
under the heading "Facility A" and the amount of any other Bank's
Facility A Commitment acquired by it under Clause 28 (Changes to the
Parties); and
(b) in relation to a Bank which becomes a Bank after the date of this
Agreement, the amount of any other Bank's Facility A Commitment
acquired by it under Clause 28 (Changes to the Parties),
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to the extent not cancelled, transferred or reduced under this Agreement.
"Facility A Commitment Period"
means, for Facility A, the period from the date of this Agreement up to and
including the Facility A Final Maturity Date.
"Facility A Final Maturity Date"
means the fifth anniversary of the date of this Agreement.
"Facility A Loan"
means a Loan drawn down or to be drawn down under Facility A.
"Facility A Margin"
means, for a Facility A Loan, 0.25 per cent. per annum.
"Facility A Repayment Date"
means the last day of the Interest Period for a Facility A Loan.
"Facility B"
means the revolving credit facility (with a term-out option) referred to in
Clause 2.1(a)(ii) (The Facilities).
"Facility B Commitment"
means:
(a) in relation to a Bank which is a Bank on the date of this Agreement,
the amount in Sterling set opposite its name in Part II of Schedule 1
under the heading "Facility B" and the amount of any other Bank's
Facility B Commitment acquired by it under Clause 28 (Changes to the
Parties); and
(b) in relation to a Bank which becomes a Bank after the date of this
Agreement, the amount of any other Bank's Facility B Commitment
acquired by it under Clause 28 (Changes to the Parties),
to the extent not cancelled, transferred or reduced under this Agreement.
"Facility B Commitment Period"
means, for Facility B, the period from the date of this Agreement up to and
including the Facility B Final Maturity Date or, if the Term-out Option is
exercised, the Facility B Term Date.
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"Facility B Final Maturity Date"
means:
(a) the day falling 364 days after the date of this Agreement;
(b) such later date as may apply under Clause 2.4 (Extension of Facility B
Final Maturity Date); or
(c) if the Term-out Option is exercised, the second anniversary of the
Facility B Term Date.
"Facility B Loan"
means a Loan drawn down or to be drawn down under Facility B.
"Facility B Margin"
means, for a Facility B Loan, 0.25 per cent. per annum.
"Facility B Repayment Date"
means the last day of the Interest Period of a Facility B Loan.
"Facility B Term Date"
means, if the Term-out Option is exercised, the then scheduled Facility B
Final Maturity Date immediately before the exercise of the Term-out Option.
"Facility Office"
means the office(s) notified by a Bank to the Agent:
(a) on or before the date it becomes a Bank; or
(b) by not less than five Business Days' notice,
as the office(s) through which it will perform all or any of its
obligations under this Agreement.
"Fee Letter"
means a letter dated the date of this Agreement between the Arrangers and
the Company or the Agent and the Company setting out the amount of various
fees referred to in Clause 22 (Fees).
"Final Maturity Date"
means the Facility A Final Maturity Date or the Facility B Final Maturity
Date.
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"Finance Document"
means:
(a) this Agreement;
(b) a Novation Certificate;
(c) a Fee Letter;
(d) a Borrower Accession Agreement;
(e) the Syndication Side-Letter;
(f) a Syndication Agreement; or
(g) any other document designated as such by the Agent and the Company.
"Finance Party"
means an Arranger, a Bank or the Agent.
"Financial Indebtedness"
means any indebtedness incurred by any member of the Group in respect of:
(a) moneys borrowed or raised;
(b) any debenture, bond, note, loan stock or other security;
(c) acceptance credits;
(d) the acquisition cost of property, assets or services 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 the property, assets or services acquired, which shall not be
inferred solely because the payment is interest-bearing, but excluding
liabilities incurred in relation to the acquisition of property,
assets or services in the ordinary course of business;
(e) future rental payments under leases (whether in respect of land,
machinery, equipment or otherwise, but excluding operating leases)
entered into primarily as a method of raising finance or financing the
acquisition of the property or asset leased;
(f) receivables or bills sold or discounted (other than on a non-recourse
basis);
(g) any amount raised pursuant to any issue of preference shares which are
redeemable at any time prior to or on the Facility A Final Maturity
Date;
(h) (for the purpose of Clause 20.1(e) (Cross-acceleration) only) any
interest rate swap or currency swap; and
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(i) any guarantee or indemnity or other similar binding assurance in
respect of indebtedness of a type described in paragraphs (a) to (g)
(inclusive) above in respect of any person and (for the purpose of
Clause 20.1(e) (Cross-acceleration) only) any guarantee or indemnity
or other similar binding assurance in respect of indebtedness of a
type described in paragraph (h) above in respect of any person,
but excludes any obligation of a type described in paragraphs (a) to (i)
(inclusive) above that is owed by a member of the Group to another member
of the Group.
"GROSS SHAREHOLDERS' FUNDS"
means, as at any accounting date of the Group, the aggregate of:
(a) the amount for the time being paid up or credited as being paid up on
the issued share capital of the Company;
(b) the consolidated reserves of the Group (including any share premium
accounts and any capital reserves); and
(c) the consolidated retained earnings of the Group (less any amount
standing to the debit of the consolidated profit and loss account of
the Group);
before deducting, or if already deducted after adding back, any amount
attributable to goodwill arising on consolidation,
LESS any amount included in the above which is attributable to:
(i) equity interests of minority shareholders;
(ii) intangible assets (other than goodwill arising on consolidation
referred to above); and
(iii) any revaluation of assets since 31 December 1997, other than a
revaluation carried out by a professional external valuer,
all as calculated in accordance with accounting principles or standards
generally accepted in the United Kingdom applied in connection with the
preparation of the consolidated accounts of the Group for that accounting
date.
"Group"
means the Company and its Subsidiaries.
"Information Memorandum"
means an information memorandum referred to in a Syndication Agreement.
"Interest Period"
means each period determined in accordance with Clause 8 (Interest
Periods).
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"LIBOR"
means:
(a) the rate per annum which appears on the relevant page on the Telerate
Screen; or
(b) if no such rate appears, the arithmetic mean (rounded upward to four
decimal places) of the relevant offered rates which appear on the
relevant page (if any) on the Reuters Screen; or
(c) if no such rate appears on the Telerate Screen and one only or no
offered rate appears on the relevant page of the Reuters Screen, or
there is no relevant page on the Reuters Screen, the arithmetic mean
(rounded upward to four decimal places) of the rates, as supplied to
the Agent at its request, quoted by the Reference Banks to leading
banks in the London interbank market,
at or about 11.00 a.m. on the Rate Fixing Day for the offering of deposits
in the currency of the relevant Loan for a period comparable to the
Interest Period of the relevant Loan.
"Loan"
means, subject to Clauses 8 (Interest Periods) and 10 (Optional
Currencies), the principal amount of each borrowing by a Borrower under
this Agreement or the principal amount outstanding of that borrowing.
"Majority Banks"
means, at any time, Banks:
(a) whose participations in the Loans then outstanding aggregate more than
662/3 per cent. of all the Loans then outstanding; or
(b) if there are no Loans then outstanding, whose Commitments then
aggregate more than 662/3 per cent. of the Total Commitments; or
(c) if there are no Loans then outstanding and the Total Commitments have
been reduced to nil, whose Commitments aggregated more than 662/3 per
cent. of the Total Commitments immediately before the reduction.
"Margin"
means the Facility A Margin or the Facility B Margin.
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"Measuring Assets"
means:
(a) in relation to the Group, as of any date of determination, the
aggregate of the Group's fixed tangible assets, trade debtors and
stocks, all computed on a consolidated basis and as would be shown on
the Group's consolidated balance sheet prepared as of such date in
accordance with accounting principles or standards generally accepted
in the United Kingdom; and
(b) in relation to any Subsidiary of the Company as of any date of
determination, the aggregate of that Subsidiary's fixed tangible
assets, trade debtors other than from members of the Group and stocks,
as would be shown on an unconsolidated balance sheet of such
Subsidiary prepared as of such date in accordance with accounting
principles or standards generally accepted in the United Kingdom.
"MLA Cost"
means the cost imputed to the Bank(s) making a Loan in Sterling of
compliance with the Mandatory Liquid Assets requirements of the Bank of
England as determined in accordance with Schedule 3.
"NET BORROWING COSTS"
means, in respect of any financial period of the Group, all continuing,
regular or periodic costs, charges and expenses (including, but not limited
to, interest) shown in the relevant consolidated accounts of the Group as
interest payable by any member of the Group plus any interest arising in
such financial period which is capitalised by any member of the Group less
all income shown in the relevant consolidated accounts of the Group as
interest receivable by any member of the Group, all as calculated in
accordance with accounting principles or standards generally accepted in
the United Kingdom applied in connection with the preparation of the
consolidated accounts of the Group for the relevant financial period.
"Novation Certificate"
has the meaning given to it in Clause 28.3 (Procedure for novations).
"Optional Currency"
means any currency (other than Sterling) which is for the time being freely
transferable and convertible into Sterling and deposits of which are
readily available in the London interbank market and, unless Sterling is
replaced by the euro, includes euros.
"Original Group Accounts"
means the audited consolidated accounts of the Group for the year ended
31st December, 1997.
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"Original Sterling Amount"
in relation to a Loan, means:
(a) if that Loan is denominated in Sterling, the amount of that Loan; or
(b) if that Loan is denominated in an Optional Currency and is a Term
Loan, the equivalent in Sterling of the amount of that Loan if it had
first been drawn down and had remained denominated in Sterling; or
(c) if that Loan is denominated in an Optional Currency and is a Revolving
Loan, the equivalent in Sterling of that Loan calculated by reference
to the Agent's Spot Rate of Exchange three Business Days before its
Drawdown Date.
"Party"
means a party to this Agreement.
"Principal Subsidiary"
means a Subsidiary of the Company:
(a) which has Measuring Assets exceeding 2.5% of Measuring Assets of the
Group; or
(b) the annual turnover of which (excluding sales between members of the
Group) equals or exceeds 2.5% of the turnover of the Group (excluding
sales between members of the Group) (or, on a pro forma basis in the
case of a newly acquired or created Subsidiary, would have accounted
for 2.5% or more of such turnover) for the most recent financial year,
except that any company which becomes a Subsidiary of the Company after the
date of this Agreement as the result of the acquisition of a business and
which would otherwise be deemed a Principal Subsidiary shall not be a
Principal Subsidiary for the purposes of this Agreement until 180 days
after it becomes a Subsidiary of the Company, but no such Subsidiary shall,
during that period, enter into any new transaction or incur any new
liability which it would be prohibited from entering into or incurring if
it were a Principal Subsidiary.
"Profit Before Interest"
means, in respect of any financial period of the Group, the consolidated
profits on ordinary activities before taxation of the Group (before taking
into account any exceptional or extraordinary items) adjusted by adding
back Net Borrowing Costs and any goodwill amortised during that financial
period of the Group, all as calculated in accordance with accounting
principles or standards generally accepted in the United Kingdom applied in
connection with the preparation of the consolidated accounts of the Group
for the relevant financial period.
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"Potential Event of Default"
means an event or circumstance which, with the giving of notice and/or
lapse of time as provided in Clause 20.1 (Events of Default), would be
likely to constitute an Event of Default.
"Qualifying Bank"
means:
(a) a person which is:
(i) a bank as defined in section 840A of the Income and Corporation
Taxes Xxx 0000; and
(ii) within the charge to U.K. corporation tax for the purposes of
section 349(3) of the Income and Corporation Taxes Act 1988 as
regards any interest received by it under this Agreement; or
(b) a person which is a bank or financial institution (whether
incorporated in the U.K. or elsewhere) which, by virtue of the
provisions of a double taxation agreement between the U.K. and the
country of residence of that person is, subject only to a prior
direction given to the Borrower by the U.K. Inland Revenue pursuant to
an application by that person, eligible to have the payments made by
the Borrower without any deduction or withholding in respect of Taxes.
"Rate Fixing Day"
means:
(a) the first day of an Interest Period for a Loan denominated in Sterling
(unless Sterling is replaced by euros); or
(b) the second Business Day before the first day of an Interest Period for
a Loan denominated in an Optional Currency or euros.
"Reference Banks"
means, subject to Clause 28.5 (Reference Banks), Midland Bank plc,
Citibank, N.A. and ABN AMRO Bank N.V.
"Relevant Taxes"
means any Tax imposed, levied or assessed by or on behalf of:-
(a) the U.K.; or
(b) any jurisdiction from or through which a relevant Borrower makes any
payment under the Finance Documents;
12
(c) any federation or organisation of which the U.K. or any jurisdiction
referred to in paragraph (b) is a member; or
(d) any political sub-division or authority of any of the above.
"Repayment Date"
means a Facility A Repayment Date or a Facility B Repayment Date.
"Request"
means a request made by a Borrower for a Loan, substantially in the form of
Schedule 4.
"Revolving Loan"
means a Facility A Loan or, prior to exercise of the Term-out Option, a
Facility B Loan.
"Rollover Loan"
means a Loan whose Drawdown Date coincides with the Repayment Date of
another Loan the Original Sterling Amount of which is equal to or less than
the Original Sterling Amount of the other Loan.
"Sterling" or "(Pounds)"
means the lawful currency for the time being of the United Kingdom.
"Subsidiary"
means:
(a) a subsidiary within the meaning of section 736 of the Companies Xxx
0000; and
(b) unless the context otherwise requires, a subsidiary undertaking within
the meaning of section 258 of the Companies Xxx 0000.
"SYNDICATION AGREEMENT"
means an agreement between the Parties and other banks and financial
institutions, substantially in the form set out in the schedule to the
Syndication Side-Letter.
"SYNDICATION SIDE-LETTER"
means the letter between the Company and the Arrangers, dated the date of
this Agreement, relating to primary syndication.
"TAXES"
includes all present and future income and other taxes, levies, imposts,
deductions and charges and withholdings whatsoever together with
13
interest thereon and penalties with respect thereto, if any, and any
payments made on or in respect thereof; "TAXATION" and "TAX" shall be
construed accordingly.
"Term Loan"
means a Facility B Loan made after the exercise of the Term-out Option.
"Term-out Option"
means the option of the Company in Clause 5.4 (Term-out Option) to convert
Facility B into a term loan facility.
"Total A Commitments"
means the aggregate of the Facility A Commitments of all the Banks, being
(Pounds)250,000,000 at the date of this Agreement.
"Total B Commitments"
means the aggregate of the Facility B Commitments of all the Banks, being
(Pounds)250,000,000 at the date of this Agreement.
"Total Commitments"
means the aggregate of the Total A Commitments and the Total B Commitments,
being (Pounds)500,000,000 at the date of this Agreement.
"Total Consolidated Net Borrowings"
means, as at any accounting date of the Group, the aggregate (without
double counting and excluding borrowings between members of the Group) of:
(a) all short term borrowings falling due within one year;
(b) all loans and other borrowings falling due after more than one year;
and
(c) all obligations of the types described in subparagraphs (a) or (b)
above of third parties outside of the Group to the extent guaranteed
by any member of the Group,
in the case of each of paragraphs (a) and (b) above, as shown in the
consolidated accounts of the Group as at that accounting date,
LESS the aggregate of:
(i) all cash in hand and cash balances with banks;
(ii) all time deposits; and
(iii) all short term investments and marketable securities including,
without limitation to the generality of the foregoing, commercial
paper with a maturity of not more than twelve months, certificates of
deposit and U.K. treasury bills,
14
all as calculated in accordance with accounting principles or standards
generally accepted in the United Kingdom applied in connection with the
preparation of the consolidated accounts of the Group for that accounting
date.
"Treaty"
means the Treaty Establishing the European Community, being the Treaty of
Rome of 25th March, 1957, as amended by the Single Xxxxxxxx Xxx 0000 and
the Maastricht Treaty (which was signed at Maastricht on 7th February, 1992
and came into force on 1st November, 1993), as amended from time to time.
"U.K."
means the United Kingdom of Great Britain and Northern Ireland.
1.2 CONSTRUCTION
(a) In this Agreement, unless the contrary intention appears, a reference to:
(i) an "AMENDMENT" includes a supplement, novation or re-enactment and
"AMENDED" is to be construed accordingly;
"ASSETS" includes present and future properties, revenues and rights
of every description;
an "AUTHORIZATION" includes an authorization, consent, approval,
resolution, licence, exemption, filing and registration;
a "CURRENCY" includes ECU;
a "MONTH" is a reference to a period starting on one day in a calendar
month and ending on the numerically corresponding day in the next
calendar month, except that:
(1) if there is no numerically corresponding day in the month in
which that period ends, that period shall end on the last
Business Day in that calendar month; or
(2) if an Interest Period commences on the last Business Day of a
calendar month, that Interest Period shall end on the last
Business Day in the calendar month in which it is to end;
a "PERSON" includes any person, company, partnership, association,
government, state, agency or other entity or any of its successors and
assigns;
a "REGULATION" includes any regulation, rule, official directive,
request or guideline (whether or not having the force of law but, if
not having the force of law, being of a type which the person to whom
it applies is accustomed to comply) of any governmental, inter-
governmental or supranational body, agency, department or regulatory,
self-regulatory or other authority or organisation;
15
a "SCREEN" or "PAGE" on a "SCREEN" in the definition of "LIBOR"
includes any replacement screen or page nominated by the British
Bankers Association as the information vendor for the purpose of
displaying British Bankers Association Interest Settlement Rates for
deposits in various currencies;
(ii) a provision of law is a reference to that provision as amended or re-
enacted;
(iii) a Clause or a Schedule is a reference to a clause of or a schedule
to this Agreement;
(iv) a Finance Document or another document is a reference to that Finance
Document or other document as amended; and
(v) a time of day is a reference to London time.
(b) Unless the contrary intention appears, a term used in any other Finance
Document or in any notice given under or in connection with any Finance
Document has the same meaning in that Finance Document or notice as in this
Agreement.
(c) The index to and the headings in this Agreement are for convenience only
and are to be ignored in construing this Agreement.
2. THE FACILITIES
2.1 THE FACILITIES
(a) Subject to the terms of this Agreement, the Banks agree to make available
to the Borrowers the following facilities:
(i) a multicurrency revolving credit facility under which the Banks agree
to make Facility A Loans to the Borrowers up to an aggregate Original
Sterling Amount not exceeding the Total A Commitments; and
(ii) a multicurrency revolving credit facility (with a term-out option)
under which the Banks agree to make Facility B Loans to the Borrowers
up to an aggregate Original Sterling Amount not exceeding the Total B
Commitments.
(b) The aggregate Original Sterling Amount of all outstanding Loans shall not
exceed the Total Commitments.
(c) No Bank is obliged to lend if it would cause the Original Sterling Amount
of its participations in the Loans to exceed its Commitment.
2.2 NUMBER OF LOANS AND CURRENCIES
Unless otherwise agreed by the Agent, no more than 15 Loans may be
outstanding at any time and Loans may not be denominated in more than 5
currencies at any time.
2.3 NATURE OF A FINANCE PARTY'S RIGHTS AND OBLIGATIONS
(a) The obligations of a Finance Party under the Finance Documents are several.
Failure of a Finance Party to carry out those obligations
16
does not relieve any other Party of its obligations under the Finance
Documents. No Finance Party is responsible for the obligations of any other
Finance Party under the Finance Documents.
(b) The rights of a Finance Party under the Finance Documents are divided
rights. A Finance Party may, except as otherwise stated in the Finance
Documents, separately enforce those rights.
2.4 EXTENSION OF FACILITY B FINAL MATURITY DATE
(a) The Company may, by not more than 60 days' nor less than 30 days' notice
prior to the then current Facility B Final Maturity Date, request an
extension of the then current Facility B Final Maturity Date to a date
falling not more than 364 days after the date of the then current Facility
B Final Maturity Date.
(b) If the Agent has received, not less than 10 days before the then current
Facility B Final Maturity Date, a notice of acceptance to any request made
by the Company under paragraph (a) above from all the Banks, the Facility B
Final Maturity Date shall be extended to the date falling 364 days after
the date of the then current Facility B Final Maturity Date and the Agent
shall promptly notify the Company accordingly.
(c) The Agent shall notify the Banks promptly on receipt of any notice under
paragraph (a) above and any such notice will be irrevocable.
3. PURPOSE
Each Borrower shall apply each Loan made to it towards general corporate
purposes (including the financing of acquisitions, as a commercial paper
back-up and as a stand-by). Without affecting the obligations of any
Borrower in any way, no Finance Party is bound to monitor or verify the
application of any Loan.
4. CONDITIONS PRECEDENT
4.1 DOCUMENTARY CONDITIONS PRECEDENT
No Borrower may deliver the first Request until the Agent has notified the
Company and the Banks that it has received all of the documents set out in
Part I of Schedule 2 in form and substance satisfactory to the Agent, which
the Agent shall do promptly on receipt.
4.2 FURTHER CONDITIONS PRECEDENT
The obligations of each Bank to participate in any Loan under Clause 5.3
(Advance of Loan) are subject to the further conditions precedent that:
(a) on both the date of the Request (if applicable) and the Drawdown Date:
(i) in the case of a Rollover Loan, no Event of Default is
outstanding or would result from the making of that Rollover
Loan;
(ii) in the case of any other Loan:
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(A) no Default is outstanding or would result from the making of
the Loan; and
(B) the representations and warranties in Clause 18
(Representations and warranties) to be repeated on those
dates are correct, and will be correct immediately after the
Loan is made, in all material respects; and
(b) the making of the Loan would not cause Clause 2.1 (The Facilities) or
Clause 2.2 (Number of Loans and currencies) to be contravened.
5. DRAWDOWN AND TERM-OUT OPTION
5.1 COMMITMENT PERIOD
A Borrower may borrow a Loan during the relevant Commitment Period if the
Agent receives, not later than 11.00 a.m., three (or, in the case of a Loan
in Sterling, one) Business Day(s) before the proposed Drawdown Date, a duly
completed Request. Each Request is irrevocable and, subject to the terms of
this Agreement, shall oblige the Borrower to borrow the Loan.
5.2 COMPLETION OF REQUESTS
A Request will not be regarded as having been duly completed unless:
(a) it specifies whether the Loan is a Facility A Loan or a Facility B
Loan;
(b) the Drawdown Date is a Business Day falling on or before the final day
of the relevant Commitment Period;
(c) if the currency selected is Sterling, the amount of the Loan is:
(i) a minimum of (Pounds)5,000,000 and an integral multiple of
(Pounds)1,000,000; or
(ii) if the Loan is a Facility A Loan, the balance of the undrawn
Total A Commitments; or
(iii) if the Loan is a Facility B Loan, the balance of the undrawn
Total B Commitments; or
(iv) such other amount as the Agent may agree;
(d) if the currency selected is an Optional Currency, the amount of the
Loan is:
(i) an integral multiple of 1,000,000 of the largest currency unit of
that Optional Currency but at least the equivalent of
(Pounds)5,000,000; or
(ii) if the Loan is a Facility A Loan, the balance of the undrawn
Total A Commitments; or
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(iii) if the Loan is a Facility B Loan, the balance of the undrawn
Total B Commitments; or
(iv) such other amount as the Agent may agree;
(e) the amount selected under paragraph (c) or (d) above does not cause
Clause 2.1 (The Facilities) to be contravened;
(f) the currency selected complies with Clause 10 (Optional Currencies);
(g) the Interest Period selected complies with Clause 8 (Interest Periods)
and does not extend beyond the relevant Final Maturity Date; and
(h) the payment instructions comply with Clause 12 (Payments).
5.3 ADVANCE OF LOAN
(a) The Agent shall promptly notify each Bank of the details of the requested
Loan and the amount of its participation in the Loan.
(b) Subject to the terms of this Agreement, each Bank shall make its
participation in the Loan available to the Agent for the Borrower on the
relevant Drawdown Date.
(c) The amount of each Bank's participation in the Loan will be the proportion
of the Loan which its relevant Commitment bears to the Total A Commitments
or the Total B Commitments on the proposed Drawdown Date.
5.4 TERM-OUT OPTION
(a) The Company may by notice to the Agent convert Facility B into a term loan
facility.
(b) With effect from the date of the notice under paragraph (a) above:-
(i) the Facility B Final Maturity Date shall be the date falling on the
second anniversary of the Facility B Term Date; and
(ii) Facility B Loans may, subject to the terms of this Agreement, be
borrowed for the remainder of the Facility B Commitment Period, but
all subsequent Facility B Loans will be Term Loans.
6. REPAYMENT
6.1 REPAYMENT
(a) Each Borrower shall repay each Facility A Loan made to it in full on its
Facility A Repayment Date.
(b) (i) Subject to sub-paragraph (ii) below, each Borrower shall repay each
Facility B Loan made to it in full on its Facility B Repayment Date.
19
(ii) After the exercise of the Term-out Option, each Borrower shall repay
each Facility B Loan made after that date in full on the Facility B
Final Maturity Date.
6.2 RE-BORROWING
Subject to the other terms of this Agreement:
(a) any amounts repaid under Clause 6.1(a) (Repayment) may be re-borrowed;
and
(b) any amounts repaid under Clause 6.1(b) (Repayment) may, if the Term-
out Option has not been exercised, be re-borrowed.
7. PREPAYMENT AND CANCELLATION
7.1 AUTOMATIC CANCELLATION
(a) The Facility A Commitment of each Bank shall be automatically cancelled at
the close of business in London on the Facility A Final Maturity Date.
(b) (i) If the Term-out Option has not been exercised, the Facility B
Commitment of each Bank shall be automatically cancelled at the close
of business in London on the Facility B Final Maturity Date.
(ii) If the Term-out Option has been exercised, the undrawn amount of the
Facility B Commitment of each Bank shall be automatically cancelled on
the Facility B Term Date.
7.2 VOLUNTARY CANCELLATION
(a) The Company may, by giving not less than 10 days' prior notice (or such
shorter period as the Majority Banks may agree) to the Agent, cancel the
undrawn amount of the Total A Commitments or the Total B Commitments in
whole or in part (but, if in part, in a minimum of (Pounds)5,000,000 and an
integral multiple of (Pounds)1,000,000).
(b) Any cancellation in part shall be applied against the relevant Commitment
of each Bank pro rata.
7.3 VOLUNTARY PREPAYMENT
A Borrower may, by giving not less than 10 days' prior notice (or such
shorter period as the Majority Banks may agree) to the Agent, and, subject
to Clause 25.2(b) (Other indemnities), prepay any Loan in whole or in part
(but, if in part, in a minimum amount of (Pounds)5,000,000 and an integral
multiple of (Pounds)1,000,000 or if the Loan is denominated in an Optional
Currency an integral multiple of 1,000,000 of the largest currency unit of
that Optional Currency but at least the equivalent of (Pounds)5,000,000).
7.4 ADDITIONAL RIGHT OF PREPAYMENT AND CANCELLATION
If:
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(a) a Borrower is required to pay to a Bank any additional amounts under
Clause 13 (Taxes); or
(b) a Borrower is required to pay to a Bank any amount under Clause 15
(Increased costs); or
(c) interest on a Bank's participation in a Loan is being calculated in
accordance with Clause 14.3(d) (Alternative basis),
then, without prejudice to the obligations of any Borrower under those
Clauses, the Company may, whilst the circumstances giving rise to the
requirement continue, serve a notice of prepayment and cancellation on that
Bank through the Agent. On the date falling five Business Days after the
date of service of the notice and subject to Clause 25.2(b) (Other
indemnities):
(i) each Borrower shall prepay that Bank's participation in all the Loans
made to it; and
(ii) the Commitments of that Bank shall be cancelled.
7.5 MITIGATION
If, in respect of any Bank, circumstances arise which would, or would on
the giving of notice, result in:
(a) any additional amounts becoming payable under Clause 13 (Taxes); or
(b) any amount becoming payable under Clause 15 (Increased costs); or
(c) any prepayment, early payment or cancellation under Clause 16
(Illegality),
then, without in any way limiting, reducing or otherwise qualifying the
obligations of the Borrowers under this Agreement and without prejudice to
the terms of those Clauses, that Bank shall, in consultation with the
Company through the Agent, and to the extent that it can do so lawfully and
without prejudice to its own position, take such reasonable steps as may be
open to it to mitigate or remove such circumstances, including (without
limitation) the transfer of its rights and obligations under this Agreement
to another branch or another bank or financial institution acceptable to
the Company, unless to do so might (in the opinion of the Bank) be
prejudicial to it.
7.6 MISCELLANEOUS PROVISIONS
(a) Any notice of prepayment and/or cancellation under this Agreement is
irrevocable. The Agent shall notify the Banks promptly of receipt of any
such notice.
(b) All prepayments under this Agreement shall be made together with accrued
interest on the amount prepaid and, subject to Clause 25.2 (Other
indemnities), without premium or penalty.
(c) No prepayment or cancellation is permitted except in accordance with the
express terms of this Agreement.
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(d) No amount of the Total Commitments cancelled under this Agreement may
subsequently be reinstated.
(e) Without prejudice to the rights of a Borrower to re-borrow under Clause 6.2
(Re-borrowing), no amount prepaid under this Agreement (otherwise than
under Clause 7.3 (Voluntary prepayment)) may subsequently be re-borrowed.
7.7 CANCELLATION FOLLOWING CHANGE OF CONTROL
(a) If any person, or group of persons acting in concert (as defined in the
City Code on Takeovers and Mergers) acquires control (as defined in section
416 of the Income and Corporation Taxes Act 1988) of the Company, the
Company shall immediately notify the Agent, specifying the date of the
change of control and, so far as known to it, the names of the person or
persons which have acquired control.
(b) The Majority Banks shall be entitled, within a period of 30 days after the
date of the notice from the Company under paragraph (a) above, to require
the Agent to give notice to the Company (a "CANCELLATION NOTICE")
terminating the Facilities and specifying the date, being not less than 45
days after the date of the cancellation notice from the Agent, on which the
Facilities shall terminate.
(c) On the date referred to in the cancellation notice given by the Agent:
(i) the Facilities shall be cancelled; and
(ii) each Borrower shall prepay all Loans made to it together with accrued
interest and all other amounts payable by it under the Finance
Documents.
(d) Any cancellation notice is irrevocable.
(e) If the Company gives notice under paragraph (a) above, then, unless the
Majority Banks otherwise agree, only Rollover Loans may be made during the
period from the date of that notice to:
(i) the latest date on which the Agent can give a cancellation notice; or
(ii) if earlier, the date on which the Agent notifies the Company that it
will not give the cancellation notice; or
(iii) if the Agent gives a cancellation notice, the date specified in the
cancellation notice on which the Facilities shall terminate.
8. INTEREST PERIODS
8.1 SELECTION
(a) (i) Each Term Loan will have successive Interest Periods.
(ii) Each Revolving Loan has one Interest Period only.
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(b) A Borrower may select the Interest Period for a Revolving Loan in the
relevant Request. Each Interest Period for a Revolving Loan will commence
on its Drawdown Date.
(c) A Borrower may select the Interest Period for a Term Loan by a notice
received by the Agent not later than three (or, in the case of Sterling,
one) Business Day(s) before the commencement of that Interest Period. Each
Interest Period for a Term Loan (other than the first which shall commence
on its Drawdown Date) shall commence on the expiry of its preceding
Interest Period.
(d) Subject to the following provisions of this Clause 8, each Interest Period
will be one, two, three or six months or any other period agreed by the
relevant Borrower and the Banks.
(e) If a Borrower fails to select an Interest Period for a Term Loan in
accordance with paragraph (c) above, that Interest Period will, subject to
the other provisions of this Clause 8, be three months.
8.2 NON-BUSINESS DAYS
If an Interest Period would otherwise end on a day which is not a Business
Day, that Interest Period shall instead end on the next Business Day in
that calendar month (if there is one) or the preceding Business Day (if
there is not).
8.3 NO OVERRUNNING OF A FINAL MATURITY DATE
If an Interest Period would otherwise overrun the relevant Final Maturity
Date, it will be shortened so that it ends on that Final Maturity Date.
8.4 OTHER ADJUSTMENTS
The Agent (after consultation with the Banks) and the Company may enter
into such other arrangements as they may agree for the adjustment of
Interest Periods and the consolidation and/or splitting of Loans.
8.5 NOTIFICATION
The Agent shall notify the relevant Borrower and the Banks of the duration
of each Interest Period promptly after ascertaining its duration.
9. INTEREST
9.1 INTEREST RATE
The rate of interest on each Loan for each of its Interest Periods is the
rate per annum determined by the Agent to be the aggregate of the
applicable:
(a) Margin;
(b) LIBOR; and
(c) in the case of a Loan in Sterling, MLA Cost.
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9.2 DUE DATES
Except as otherwise provided in this Agreement, accrued interest on each
Loan is payable by the relevant Borrower on the last day of each Interest
Period for that Loan and also, if the Interest Period is longer than six
months, on the dates falling at six monthly intervals after the first day
of that Interest Period.
9.3 DEFAULT INTEREST
(a) (i) If a Borrower fails to pay any amount payable by it under the Finance
Documents, it shall forthwith on demand by the Agent pay interest on
the overdue amount from the due date up to the date of actual payment,
as well after as before judgment, at a rate (the "DEFAULT RATE")
determined by the Agent to be one per cent. per annum above, subject
to sub-paragraph (ii) below, the rate which would have been payable if
the overdue amount had, during the period of non-payment, constituted
a Loan in the currency of the overdue amount for such successive
Interest Periods of such duration as the Agent may determine (each a
"DESIGNATED INTEREST PERIOD").
(ii) If the overdue amount is a principal amount of a Loan and it becomes
due and payable prior to the last day of an Interest Period for that
Loan, then:
(1) the first Designated Interest Period for that overdue sum will be
the unexpired portion of that Interest Period; and
(2) the rate of interest on the overdue amount for that first
Designated Interest Period will be one per cent per annum above
the rate on the overdue amount under Clause 9.1 (Interest rate)
immediately before the due date.
After the expiry of the first Designated Interest Period for that
overdue amount, the rate on the overdue amount will be calculated in
accordance with sub-paragraph (i) above.
(b) The default rate will be determined by the Agent on each Business Day or
the first day of, or two Business Days before the first day of, the
relevant Designated Interest Period, as appropriate.
(c) If, for any Designated Interest Period, LIBOR cannot be determined, the
rate of interest applicable to any overdue amount shall be the aggregate of
one per cent. per annum, the Margin and the rate per annum determined by
the Agent to be the arithmetic mean (rounded upwards to the nearest four
decimal places) of the rates notified by each Reference Bank to the Agent
before the last day of the Designated Interest Period to be those which
express as a percentage rate per annum the cost to it of funding from
whatever source it may reasonably select its portion of the overdue amount,
for the Designated Interest Period.
(d) Default interest will be compounded at the end of each Designated Interest
Period.
9.4 NOTIFICATION OF RATES OF INTEREST
The Agent shall promptly notify each relevant Party of the determination of
a rate of interest under this Agreement.
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10. OPTIONAL CURRENCIES
10.1 SELECTION
(a) A Borrower shall select the currency of a Revolving Loan in the relevant
Request.
(b) A Borrower shall select the currency of a Term Loan for an Interest Period
in a notice received by the Agent not later than 11.00 a.m. three (or, if
the currency is Sterling, one) Business Day(s) before the commencement of
that Interest Period. A Borrower may specify whether that Term Loan is to
be denominated in more than one currency, and, if so, the amount in
Sterling of each such currency (being an integral multiple of 1,000,000 of
the largest currency unit of that Optional Currency but at least the
equivalent of (Pounds)5,000,000 or the balance of the Term Loan, if more).
(c) The currency of each Loan must be Sterling or an Optional Currency.
(d) If a Borrower fails to give a notice in respect of a Term Loan in
accordance with paragraph (b) above, that Loan will remain denominated for
its next Interest Period in the same currency in which it is then
denominated.
(e) Each part of a Loan which is to be denominated in a different currency from
any other part of that Loan shall be treated as a separate Loan.
(f) The Agent shall notify each Bank and each Borrower of the Original Sterling
Amount of each Loan denominated in an Optional Currency and the applicable
Agent's Spot Rate of Exchange promptly after they are ascertained.
10.2 REVOCATION OF CURRENCY
If before 9.30 a.m. on any Rate Fixing Day the Agent receives notice from a
Bank that:
(a) it is impracticable for that Bank to fund its participation in the
Loan in the relevant Optional Currency during that Interest Period in
the ordinary course of business in the London interbank market; and/or
(b) the use of the proposed Optional Currency might contravene any law or
regulation,
the Agent shall give notice to the relevant Borrower and to the Banks to
that effect before 11.00 a.m. on that day. In this event:
(i) the Borrower and the Banks may agree that the drawdown will not be
made; or
(ii) in the absence of agreement that Bank's participation in the Loan (or
if more than one Bank is similarly affected, those Banks'
participations in the Loan) shall be treated as a separate Loan
denominated in Sterling during that Interest Period.
10.3 ECU
(a) If, at any time prior to EMU:
(i) the ECU ceases to be utilised as the basic accounting unit of the
European Union; or
25
(ii) the ECU ceases to be used in the European Monetary System; or
(iii) it becomes illegal, impossible or impracticable for payments to be
made under this Agreement in ECU; or
(iv) the Agent determines that any event mentioned in sub-paragraphs (i) -
(iii) above is likely to occur before the Facility A Final Maturity
Date,
then:
(1) the Agent shall notify the Company and the Banks promptly upon
becoming aware of the event;
(2) the Banks shall not be obliged to make any Loans denominated in ECU
on or after the date of that notification; and
(3) subsequently each amount which would otherwise have been payable by
the Borrowers under this Agreement in ECU shall be paid by the
Borrowers in Sterling or another currency acceptable to the Banks
(the "REPLACEMENT CURRENCY") and the amount of the replacement
currency so payable will be determined in accordance with paragraph
(b) below.
(b) (i) The equivalent in the replacement currency of any Loan in ECU for the
purposes of paragraph (a) above will be calculated by the Agent as
the sum of the equivalent in the replacement currency of the
components of the ECU;
(ii) the components of the ECU for this purpose will be the currency
amounts that were components of the ECU when the ECU was most
recently used in the European Monetary System, except that, if the
ECU is being used for the settlement of transactions by public
institutions of or within the European Union, or was so used after
its most recent use in the European Monetary System, the components
will be:
(1) the currency amounts that are components of the ECU as so used
on the day the calculation of the amount of the replacement
currency is to be made (the "DAY OF VALUATION"); or
(2) the currency amounts that were components of the ECU when it was
most recently so used, as appropriate;
(iii) the rates to be used by the Agent for the above purposes will be its
rates for the purchase in the London foreign exchange market of the
replacement currency with each of the components at or about 11.00 am
on the day of valuation for value on the day the relevant payment in
the replacement currency is due; and
(iv) the day of valuation will be the day determined by the Agent for the
purposes of calculating the equivalent in the replacement currency of
any amount in ECU and, unless the Agent considers it inappropriate,
will be the day two Business Days before the relevant payment in the
replacement currency is due.
26
11. AMOUNT OF OPTIONAL CURRENCIES
11.1 CHANGE OF CURRENCY
(a) If a Term Loan is to be continued during its next Interest Period in a
different currency (the "NEW CURRENCY") from that in which it is currently
denominated, the Term Loan shall be repaid by the relevant Borrower in
full at the end of its current Interest Period in the currency in which it
is then denominated and, subject to the terms of this Agreement, shall be
forthwith re-advanced by the Banks in the new currency.
(b) If the new currency is Sterling, the amount of each Bank's participation
in that Term Loan will be its participation in the Original Sterling
Amount of that Term Loan for that Interest Period.
(c) If the new currency is an Optional Currency, the amount of each Bank's
participation in that Term Loan will be determined by converting into the
new currency its participation in the Original Sterling Amount of that
Term Loan on the basis of the Agent's Spot Rate of Exchange three Business
Days before the commencement of that Interest Period.
11.2 SAME OPTIONAL CURRENCY
(a) If a Term Loan is to be continued during its next Interest Period in the
same Optional Currency as that in which it is denominated during its
current Interest Period, there shall be calculated the difference between
the amount of the Term Loan (in that Optional Currency) for the current
Interest Period and for the next Interest Period. The amount of the Term
Loan for the next Interest Period will be determined by notionally
converting into that Optional Currency the Original Sterling Amount of the
Term Loan on the basis of the Agent's Spot Rate of Exchange 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 Loan 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 Loan for the next Interest Period is
greater, each Bank shall (unless an Event of Default has occurred
which is then continuing) forthwith make available to the Agent for
that Borrower its participation in the difference.
(c) If the Sterling equivalent of a Loan calculated by reference to the
Agent's Spot Rate of Exchange for the next Interest Period shows an
appreciation or depreciation of the Optional Currency against Sterling of
less than five per cent. when compared with the Sterling equivalent of a
Loan calculated by reference to the Original Exchange Rate, no amounts are
payable in respect of the difference. In this Clause 11 "ORIGINAL EXCHANGE
RATE" means the Agent's Spot Rate of Exchange 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 Loan was first denominated
in that Optional Currency if the Term Loan has since then remained
denominated in that Optional Currency; and
27
(ii) the most recent Interest Period immediately prior to which a
difference was required to be paid under this Clause 11.2.
11.3 NOTIFICATION
The Agent shall notify the Banks and the relevant Borrower of Optional
Currency amounts (and the applicable Agent's Spot Rate of Exchange)
promptly after they are ascertained.
12. PAYMENTS
12.1 PLACE
All payments by a Borrower or a Bank under the Finance Documents shall be
made to the Agent to its account at such office or bank in the principal
financial centre of the country of the relevant currency (or, in the case
of ECU or euros, any major financial centre in which payment in ECU or
euros can be effected) as it may notify to that Borrower or Bank for this
purpose. A payment by a Borrower under the Finance Documents to the Agent
in accordance with this Clause constitutes a good discharge of that
Borrower's obligation.
12.2 FUNDS
Payments under the Finance Documents to the Agent shall be made for value
on the due date at such times and in such funds as the Agent may specify
to the Party concerned as being customary at the time for the settlement
of transactions in the relevant currency in the place for payment.
12.3 DISTRIBUTION
(a) Each payment received by the Agent under this Agreement for another Party
shall, subject to paragraphs (b) and (c) below, be made available by the
Agent to that Party by payment (on the date and in the currency and funds
of receipt) to its account with such office or bank in the principal
financial centre of the country of the relevant currency (or, in the case
of ECU or euros, any major financial centre in which payment in ECU or
euros can be effected) as it may notify to the Agent for this purpose by
not less than five Business Days' prior notice.
(b) If the relevant Borrower agrees, the Agent may apply any amount received
by it for a Borrower in or towards payment (on the date and in the
currency and funds of receipt) of any amount due from that Borrower under
the Finance Documents or in or towards the purchase of any amount of any
currency to be so applied.
(c) Where the Repayment Date for an outstanding Loan coincides with the
Drawdown Date for a new Loan to the same Borrower to be denominated in the
same currency as the outstanding Loan, the Agent shall apply the new Loan
in or towards repayment of the outstanding Loan so that:-
(i) where the amount of the outstanding Loan exceeds the amount of the
new Loan, the relevant Borrower shall be required to repay only the
excess; and
(ii) where the amount of the outstanding Loan is exactly the same as or
less than the amount of the new Loan, the relevant Borrower shall not
be required to make any payment of principal.
28
(d) Where a sum is to be paid to the Agent under this Agreement for another
Party, the Agent is not obliged to pay that sum to that Party until it has
established that it has actually received that sum. The Agent may, however,
assume that the sum has been paid to it in accordance with this Agreement,
and, in reliance on that assumption, make available to that Party a
corresponding amount. If the sum has not been made available but the Agent
has paid a corresponding amount to another Party, that Party shall
forthwith on demand by the Agent refund the corresponding amount together
with interest on that amount from the date of payment to the date of
receipt, calculated at a rate determined by the Agent to reflect its cost
of funds.
12.4 CURRENCY
(a) A repayment or prepayment of a Loan or any part of a Loan is payable in the
currency in which the Loan is denominated on its due date.
(b) Interest is payable in the currency in which the relevant amount in respect
of which it is payable is denominated.
(c) Amounts payable in respect of costs, expenses and taxes and the like are
payable in the currency in which they are incurred.
(d) Any other amount payable under the Finance Documents is, except as
otherwise provided in the Finance Documents, payable in Sterling.
12.5 SET-OFF AND COUNTERCLAIM
All payments made by a Borrower under the Finance Documents shall be made
without set-off or counterclaim.
12.6 NON-BUSINESS DAYS
(a) If a payment under the Finance Documents is due on a day which is not a
Business Day, the due date for that payment shall instead be the next
Business Day in the same calendar month (if there is one) or the preceding
Business Day (if there is not).
(b) During any extension of the due date for payment of any principal under
this Agreement interest is payable on that principal at the rate payable on
the original due date.
12.7 PARTIAL PAYMENTS
(a) If the Agent receives a payment insufficient to discharge all the amounts
then due and payable by the Borrowers under the Finance Documents, the
Agent shall apply that payment towards the obligations of the Borrowers
under the Finance Documents in the following order:
(i) FIRST, in or towards payment pro rata of any unpaid fees, costs and
expenses of the Agent under the Finance Documents;
29
(ii) SECONDLY, in or towards payment of any commitment fee due under
Clause 22.3 (Commitment fee) but unpaid or any utilisation fee due
under Clause 22.4 (Utilisation fee) but unpaid;
(iii) THIRDLY, in or towards payment pro rata of any accrued interest due
but unpaid under this Agreement;
(iv) FOURTHLY, in or towards payment pro rata of any principal due but
unpaid under this Agreement; and
(v) FIFTHLY, in or towards payment pro rata of any other sum due but
unpaid under the Finance Documents.
(b) The Agent shall, if so directed by all the Banks, vary the order set out in
sub-paragraphs (a)(ii) to (v) above.
(c) Paragraphs (a) and (b) above will override any appropriation made by a
Borrower.
13. TAXES
13.1 GROSS-UP
All payments by a Borrower under the Finance Documents shall be made
without any deduction and free and clear of and without any deduction for
or on account of any Relevant Taxes, except to the extent that the Borrower
is required by law to make payment subject to any Relevant Taxes. If any
Relevant Tax, or amounts in respect of Relevant Tax, must be deducted from
any amounts payable or paid by a Borrower, or paid or payable by the Agent
to a Bank, under the Finance Documents, the Borrower shall pay such
additional amounts as may be necessary to ensure that the relevant Bank
receives a net amount equal to the full amount which it would have received
had payment not been made subject to Relevant Tax.
13.2 TAX RECEIPTS
All Relevant Taxes required by law to be deducted by a Borrower from any
amounts paid or payable under the Finance Documents shall be paid by the
relevant Borrower when due and the Borrower shall, within 30 days of the
payment being made, deliver to the Agent for the relevant Bank appropriate
evidence that the payment has been duly remitted to the appropriate
authority.
13.3 QUALIFYING BANKS
(a) Subject to paragraph (b) below, if a Bank is not or ceases to be a
Qualifying Bank no Borrower will be liable to pay to that Bank under Clause
13.1 (Gross-up), any amount in respect of taxes levied or imposed by the
U.K. or any taxing authority of or in the U.K. in excess of the amount it
would have been obliged to pay if that Bank had been, or had not ceased to
be, a Qualifying Bank.
(b) Paragraph (a) above does not apply if a Bank ceases to be a Qualifying Bank
as a result of the introduction of, change in, or any change in the
interpretation, administration or application of, any law or regulation or
any practice or concession of the U.K. Inland Revenue occurring after the
date of this Agreement.
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(c) (i) Each Bank represents and warrants to each Borrower that it is a
Qualifying Bank. Subject to sub-paragraph (iii) below, this
representation and warranty shall be deemed to be repeated by each
Bank on each date on which it participates in the making of a Loan
and on each date on which any payment of interest in respect of any
Loan is due to be made to it pursuant to this Agreement.
(ii) If the Income and Corporation Taxes Act 1988 or any applicable double
taxation agreement is amended or repealed or there is any change in
the interpretation thereof, the Agent may, after consultation with
the Company, amend this representation to reflect the amendment or
repeal of that Act or double taxation agreement or change in
interpretation.
(iii) If the Income and Corporation Taxes Act 1988 or any applicable double
taxation agreement is amended or repealed, or there is a change in
interpretation, in a manner which requires an amendment to the
representation under sub-paragraph (i) no Bank is obliged to make the
representation unless and until the representation is amended in a
manner acceptable to the Bank.
(d) Each Finance Party shall cooperate with the relevant Borrower and the Agent
in respect of any application to the relevant revenue authorities by the
completion and execution (as soon as reasonably practicable following a
request from the Borrower or the Agent) of such certificates, claim forms
or other documentation as:
(i) the Finance Party is reasonably able to complete and execute without
incurring any liability or significant administrative burden on its
part; and
(ii) the Borrower or the Agent reasonably requests for the purpose of
enabling the Borrower or the Agent to obtain authorisation from the
relevant revenue authorities to make interest payments in full
without deduction or withholding of Tax.
(e) No additional amount shall be payable pursuant to Clause 13.1 (Gross-up) in
respect of any deduction or withholding for or on account of Tax which
would not have been required to be deducted or withheld if the person to
whom that payment was made had complied with the obligations assumed by it
under paragraph (d) above or the Inspector of Foreign Dividends had given
the requisite clearance.
13.4 REIMBURSEMENT OF TAX CREDITS
If:-
(a) a Borrower pays any additional amount (a "TAX PAYMENT") under Clause
13.1 (Gross-up); and
(b) a Bank effectively obtains a refund of Tax, or credit against Tax on
its overall net income, by reason of that Tax Payment (a "TAX
CREDIT"); and
(c) that Bank is able to identify such Tax Credit as being attributable to
the Tax Payment,
31
then the Bank shall reimburse to the relevant Borrower such proportion of
such Tax Credit as will leave the Bank, after that reimbursement, in no
better or worse position than it would have been in if such Tax Payment had
not been required. Each Bank shall use its reasonable endeavours to claim
any Tax Credit which may be due to it unless to do so might be prejudicial
to it. No Bank shall be obliged to disclose any information regarding its
tax affairs or computations to any Borrower.
13.5 CLAWBACK OF TAX CREDITS
If any Bank pays all or any part of a Tax Credit to any Borrower pursuant
to Clause 13.4 (Reimbursement of Tax Credits) and the Bank subsequently
determines, in its reasonable judgment, that the Tax Credit in respect of
which the payment was made was not available to it or has been withdrawn
from it or that it was unable to use such Tax Credit in full, the relevant
Borrower shall reimburse the Bank to the extent the Bank determines, in its
reasonable judgment, to be required to place it in the same after-tax
position as it would have been in if the Tax Credit had been obtained and
fully used and retained by such Bank. Any reimbursement made by any
Borrower to any Bank under this Clause in respect of any payment of all or
any part of a Tax Credit made by the Bank to the Borrower pursuant to
Clause 13.4 shall not exceed the amount of such Tax Credit received by the
Borrower.
14. MARKET DISRUPTION
14.1 ABSENCE OF QUOTATIONS
If LIBOR is to be determined by reference to the Reference Banks but a
Reference Bank does not supply an offered rate by 11.30 a.m. on the
relevant Rate Fixing Day, the applicable LIBOR shall, subject to Clause
14.2 (Market disruption), be determined on the basis of the quotations of
the remaining Reference Banks.
14.2 MARKET DISRUPTION
If:
(a) LIBOR is to be determined by reference to the Reference Banks but no,
or only one, Reference Bank supplies a rate by 11.30 a.m. on the Rate
Fixing Day or the Agent otherwise determines that adequate and fair
means do not exist for ascertaining LIBOR; or
(b) the Agent receives notification from Banks whose participations in a
Loan exceed 50 per cent. of that Loan that, in their opinion:
(i) matching deposits may not be available to them in the London
interbank market in the ordinary course of business to fund their
participations in that Loan for the relevant Interest Period; or
(ii) by reason of factors affecting the London interbank market
generally, the cost to them of matching deposits in the London
interbank market would be in excess of the relevant LIBOR,
the Agent shall promptly notify the relevant Borrower and the Banks of the
fact and that this Clause 14 is in operation.
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14.3 ALTERNATIVE BASIS
If a notification under Clause 14.2 (Market disruption) applies:
(a) (i) in the case of a Loan which has not been made, unless the
relevant Borrower notifies the Agent to the contrary before close
of business on the day it received the notification under Clause
14.2 (Market disruption), the Loan shall still be made but it
shall have an Interest Period of one month and the interest
payable on that Loan shall be determined in accordance with
paragraph (d) below; and
(ii) in the case of a Loan which has been made or a Rollover Loan, the
Loan shall continue or be made, as appropriate, but it shall have
an Interest Period of one month and the interest payable on that
Loan shall be determined in accordance with paragraph (b), (c) or
(d) below;
(b) within five Business Days of receipt of the notification for a Loan,
referred to in sub-paragraph (a) (ii) above, the Company and the Agent
shall enter into negotiations for a period of not more than 30 days
with a view to agreeing an alternative basis for determining the rate
of interest and/or funding applicable to that Loan;
(c) any alternative basis agreed under paragraph (b) above shall be, with
the prior consent of all the Banks, binding on all the Parties;
(d) if no alternative basis is agreed or in the case of a Loan referred to
in sub-paragraph (a) (i) above, each Bank shall (through the Agent)
certify on or before 10.00 a.m. on the last day of the Interest Period
(in respect of a Loan in Sterling) or 10.00 a.m. on the second
Business Day before the last day of the Interest Period (in respect of
a Loan in an Optional Currency or euros) to which the notification
relates an alternative basis for maintaining its participation in that
Loan;
(e) any alternative basis under paragraph (b) or (d) above may include an
alternative method of fixing the interest rate, alternative Interest
Periods or alternative currencies but it must reflect the cost to each
Bank of funding its participation in the Loan from whatever sources it
may select in order to provide the relevant Borrower with funds on as
economic a basis as is practicable (having regard to the sources then
known to the Bank) plus the Margin plus any applicable MLA Cost;
(f) each alternative basis so certified shall be binding on the Borrowers
and each certifying Bank and treated as part of this Agreement; and
(g) the Agent and the Company shall consult in good faith following any
significant change in market conditions with a view to returning to
the normal provisions of this Agreement.
33
15. INCREASED COSTS
15.1 INCREASED COSTS
(a) Subject to Clause 15.2 (Exceptions), the Company shall within 14 days of
demand by a Bank pay to that Bank the amount of any increased cost incurred
by it or its Holding Company as a result of:
(i) the introduction of, or any change in, or any change in the
interpretation or application of any law or regulation; or
(ii) compliance with any regulation made after the date of this Agreement,
including any law or regulation relating to taxation, or reserve asset,
special deposit, cash ratio, liquidity or capital adequacy requirements or
any other form of banking or monetary control.
(b) In this Agreement "INCREASED COST" means:
(i) an additional cost incurred by a Bank or its Holding Company as a
result of having entered into, or performing, maintaining or funding
its obligations under, this Agreement; or
(ii) that portion of an additional cost incurred by a Bank or its Holding
Company in making, funding or maintaining all or any advances
comprised in a class of advances formed by or including that Bank's
participations in the Loans made or to be made under this Agreement as
is attributable to that Bank making, funding or maintaining those
participations; or
(iii) a reduction in any amount payable to a Bank or its Holding Company
or the effective return to a Bank or its Holding Company under this
Agreement or (to the extent that it is attributable to this Agreement)
on its capital; or
(iv) the amount of any payment made by a Bank or its Holding Company, or
the amount of any interest or other return foregone by a Bank or its
Holding Company, calculated by reference to any amount received or
receivable by that Bank or its Holding Company from any other Party
under this Agreement.
15.2 EXCEPTIONS
Clause 15.1 (Increased costs) does not apply to any increased cost:
(a) compensated for by the payment of the MLA Cost; or
(b) referred to in Clause 13 (Taxes); or
(c) attributable to tax on the overall net income of a Bank or its Holding
Company; or
(d) which is referable to a default by a Bank or its Holding Company.
34
16. ILLEGALITY
If it is or becomes unlawful in any jurisdiction for a Bank to give effect
to any of its obligations as contemplated by this Agreement or to fund or
maintain its participation in any Loan, then:
(a) that Bank may notify the Company through the Agent accordingly; and
(b) (i) each Borrower shall forthwith or (if later) on the latest date(s)
permitted by the relevant law prepay the participations of that
Bank in all the Loans made to it; and
(ii) the Commitments of that Bank shall forthwith or (if later) on the
latest date(s) permitted by the relevant law be cancelled.
17. GUARANTEE
17.1 GUARANTEE
The Company irrevocably and unconditionally:
(a) as principal obligor guarantees to each Finance Party prompt
performance by each Borrower of all its obligations under the Finance
Documents;
(b) undertakes with each Finance Party that whenever a Borrower does not
pay any amount when due under or in connection with any Finance
Document, the Company shall forthwith on demand by the Agent pay that
amount as if the Company instead of the relevant Borrower were
expressed to be the principal Borrower; and
(c) indemnifies as primary obligor each Finance Party on demand against
any loss or liability suffered by it if any obligation guaranteed by
the Company is or becomes unenforceable, invalid or illegal.
17.2 CONTINUING GUARANTEE
This guarantee is a continuing guarantee and will extend to the ultimate
balance of all sums payable by the Borrowers under the Finance Documents,
regardless of any intermediate payment or discharge in whole or in part.
17.3 REINSTATEMENT
(a) Where any discharge (whether in respect of the obligations of any Borrower
or any security for those obligations or otherwise) is made in whole or in
part or any arrangement is made on the faith of any payment, security or
other disposition which is avoided or must be restored on insolvency,
liquidation or otherwise without limitation, the liability of the Company
under this Clause 17 shall continue as if the discharge or arrangement had
not occurred.
(b) Each Finance Party may concede or compromise any claim that any payment,
security or other disposition is liable to avoidance or restoration.
35
17.4 WAIVER OF DEFENCES
The obligations of the Company under this Clause 17 will not be affected by
an act, omission, matter or thing which, but for this provision, would
reduce, release or prejudice any of its obligations under this Clause 17 or
prejudice or diminish those obligations in whole or in part, including
(whether or not known to it or any Finance Party):
(a) any time or waiver granted to, or composition with, any Borrower or
other person;
(b) the taking, variation, compromise, exchange, renewal or release of, or
refusal or neglect to perfect, take up or enforce, any rights against,
or security over assets of, any Borrower or other person or any non-
presentation or non-observance of any formality or other requirement
in respect of any instrument or any failure to realise the full value
of any security;
(c) any incapacity or lack of powers, authority or legal personality of or
dissolution or change in the members or status of a Borrower or any
other person;
(d) any variation (however fundamental) or replacement of a Finance
Document or any other document or security so that references to that
Finance Document in this Clause 17 shall include each variation or
replacement;
(e) any unenforceability, illegality or invalidity of any obligation of
any person under any Finance Document or any other document or
security, to the intent that the Company's obligations under this
Clause 17 shall remain in full force and its guarantee be construed
accordingly, as if there were no unenforceability, illegality or
invalidity; or
(f) any postponement, discharge, reduction, non-provability or other
similar circumstance affecting any obligation of any Borrower under a
Finance Document resulting from any insolvency, liquidation or
dissolution proceedings or from any law, regulation or order so that
each such obligation shall for the purposes of the Company's
obligations under this Clause 17 be construed as if there were no such
circumstance.
17.5 IMMEDIATE RECOURSE
The Company waives any right it may have of first requiring any Finance
Party (or any trustee or agent on its behalf) to proceed against or enforce
any other rights or security or claim payment from any person before
claiming from the Company under this Clause 17.
17.6 APPROPRIATIONS
Until all amounts which may be or become payable by the Borrowers under or
in connection with the Finance Documents have been irrevocably paid in
full, each Finance Party (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 Finance Party (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
36
(whether against those amounts or otherwise) and the Company shall not
be entitled to the benefit of the same; and
(b) hold in a suspense account any moneys received from the Company or on
account of the Company's liability under this Clause 17, and interest
will accrue on those moneys at the rate payable by the relevant
Borrower on the corresponding amount outstanding under this Agreement.
17.7 NON-COMPETITION
Until all amounts which may be or become payable by the Borrowers under or
in connection with the Finance Documents have been irrevocably paid in
full, the Company shall not, after a claim has been made or by virtue of
any payment or performance by it under this Clause 17:
(a) be subrogated to any rights, security or moneys held, received or
receivable by any Finance Party (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 the
Company's liability under this Clause 17;
(b) claim, rank, prove or vote as a creditor of any Borrower or its estate
in competition with any Finance Party (or any trustee or agent on its
behalf); or
(c) receive, claim or have the benefit of any payment, distribution or
security from or on account of any Borrower, or exercise any right of
set-off as against any Borrower,
unless the Agent otherwise directs. The Company shall hold in trust for
and forthwith pay or transfer to the Agent for the Finance Parties any
payment or distribution or benefit of security received by it contrary to
this Clause 17.7 or as directed by the Agent.
17.8 ADDITIONAL SECURITY
This guarantee is in addition to and is not in any way prejudiced by any
other security now or subsequently held by any Finance Party.
18. REPRESENTATIONS AND WARRANTIES
18.1 REPRESENTATIONS AND WARRANTIES
Each Borrower makes the representations and warranties set out in this
Clause 18.2 (Status) to 18.9 (Litigation) inclusive to each Finance Party
on the date of this Agreement.
18.2 STATUS
It is a limited liability company, duly incorporated and validly existing
under the laws of its jurisdiction of incorporation, possessing perpetual
corporate existence and the capacity to xxx and be sued in its own name,
has the power to own its property and assets and carry on its business as
it is now being conducted.
37
18.3 POWERS AND AUTHORITY
It has the power to enter into and perform its obligations under the
Finance Documents and the transactions contemplated by the Finance
Documents and has taken all necessary action to authorise the entry into
and performance of its obligations under the Finance Documents and the
transactions contemplated by the Finance Documents.
18.4 LEGAL VALIDITY
This Agreement constitutes, and each other Finance Document (when executed
in accordance with the terms of this Agreement) will (subject to the
qualifications as to matters of law only expressed in any legal opinion
delivered to the Agent pursuant to this Agreement) constitute, its legal,
valid and binding obligation.
18.5 NON-CONFLICT
The entry into and performance of each Finance Document and the
transactions contemplated by each Finance Document do not and will not
conflict with:-
(a) any applicable law or regulation or any applicable official or
judicial order;
(b) its constitutional documents; or
(c) any document to which it is a party or which is binding upon it or any
of its assets to an extent or in a manner which might reasonably be
expected to have a material adverse effect on the ability of the
Company to perform its obligations under the Finance Documents.
18.6 NO DEFAULT
(a) No Event of Default or (unless this representation is being repeated or
deemed to be repeated on the date of a Request or a Drawdown Date in
respect of a Rollover Loan) Potential Event of Default has occurred and is
continuing; and
(b) no other event has occurred which constitutes a default under or in respect
of any agreement or document to which it is a party or by which it may be
bound to an extent or in a manner which might reasonably be expected to
have a material adverse effect on the ability of the Company to perform its
obligations under the Finance Documents.
18.7 CONSENTS
All applicable authorisations required in connection with the entry into,
performance, validity and enforceability of each Finance Document to which
it is a party and the transactions contemplated by each Finance Document
have been obtained or effected and are in full force and effect.
18.8 ACCOUNTS
The audited consolidated accounts of the Group most recently delivered to
the Agent (which, at the date of this Agreement, are the audited
consolidated accounts for the financial year of the Group ended 31st
December, 1997):-
38
(a) have been prepared in accordance with accounting principles and
standards generally accepted in the U.K.; and
(b) fairly represent the consolidated financial condition of the Group as
at the date to which they were drawn up.
18.9 LITIGATION
No litigation, arbitration or administrative proceedings against it are
current or pending or, to its knowledge, threatened or pending (including,
without limitation, any relating to any breach or alleged breach of any
Environmental Law), which, if adversely determined against it, might
reasonably be expected to have a material adverse effect on the ability of
the Company to perform its obligations under the Finance Documents, other
than any proceedings where it has received independent legal advice that,
on balance, those proceedings will not be adversely determined, and a copy
of that advice has been supplied to the Agent.
18.10 REPRESENTATIONS AT SIGNING
The Company further represents that as at the date of this Agreement:-
(a) there has been no material adverse change in the financial condition
of the Group from that shown in the audited consolidated accounts of
the Group for the year ended 31st December, 1997, which might
reasonably be expected to have a material adverse effect on the
ability of the Company to perform its obligations under the Finance
Documents; and
(b) there has been no breach by it of any Environmental Law which would
have a material adverse effect on the ability of the Company to
perform its obligations under the Finance Documents.
18.11 REPETITION
The representations set out in Clauses 18.2 (Status) to 18.9 (Litigation)
inclusive shall survive the execution of this Agreement and shall be
deemed to be repeated on the date of each Request and on each Drawdown
Date, with reference to the facts and circumstances then subsisting, as if
made at each such time.
19. UNDERTAKINGS
19.1 DURATION
The undertakings in this Clause 19 remain in force from the date of this
Agreement for so long as any amount is or may be outstanding under this
Agreement or any Commitment is in force.
19.2 INFORMATION
The Company shall supply to the Agent in sufficient copies for all the
Banks in
39
respect of the items referred to in paragraphs (a) and (b) below and in
sufficient copies for all the Banks in respect of the items referred to in
paragraphs (c), (d), (e) and (f) below if the Agent so requests:
(a) as soon as practicable (and in any event within 180 days after the
close of each of its financial years), the audited consolidated
accounts of the Group and the audited accounts of each Borrower for
that year;
(b) as soon as practicable (and in any event within 120 days of the end of
the first half of each of its financial years), the unaudited
consolidated accounts of the Group for that half-year;
(c) promptly at the request of the Agent, a list of the then current
Principal Subsidiaries, together with computations in reasonable
detail showing the bases for such list;
(d) promptly, all notices or other documents despatched by the Company to
the Company's shareholders (or any class thereof) or its creditors
generally;
(e) (i) subject to sub-paragraph (ii) below, promptly such further
information in the possession or control of the Company regarding
the financial condition and operations of the Company or any of
its Subsidiaries which is material for evaluation of any
Borrower's ability to perform its obligations under the Finance
Documents, as the Agent may reasonably request;
(ii) the Company shall be obliged to provide any information requested
under sub-paragraph (i) above only:
(A) if it does not breach any undertaking of confidentiality
given by the Company or any of its Subsidiaries in relation
to such information; and
(B) on the basis that each Finance Party which receives such
information will be deemed to have undertaken to the Company
to keep it confidential unless it is or comes into the
public domain and not to use it or exploit it for any
purpose other than in connection with its participation
under this Agreement;
and
(f) details of any litigation, arbitration or administrative proceedings
against it which might reasonably be expected to have a material
adverse effect on the ability of the Company to perform its
obligations under the Finance Documents, as soon as the same are
instituted or, to the knowledge of the Company, threatened or pending.
19.3 NOTIFICATION OF DEFAULT
(a) Each Borrower shall notify the Agent promptly upon any senior officer
having actual knowledge of any Default and of the steps being taken to
remedy the same.
(b) If the Agent shall have reasonable cause to believe a Default may have
occurred, the Company shall promptly at the request of the Agent from time
to time, supply the Agent with a certificate signed on behalf of the
Company by a duly authorised officer thereof certifying
40
that no Default has occurred and is continuing or, if the same has
occurred, specifying the Default and the steps being taken to remedy the
same.
19.4 COMPLIANCE CERTIFICATES
(a) The Company shall, as soon as practicable and in any event within 180 days
of the end of each of its financial years and within 120 days of the end of
the first half of each of its financial years, supply the Agent with a
certificate signed on behalf of the Company by an officer of the Company
which sets out in reasonable detail computations which establish compliance
with Clause 19.14 (Financial condition).
(b) The Company shall, on request by the Agent (acting on the instructions of
the Majority Banks), supply the Agent with a certificate from the Company's
auditors setting out in reasonable detail computations which establish
compliance with Clause 19.14 (Financial condition) as at the end of a
financial year of the Group.
19.5 CONSENTS
Each Borrower shall obtain and promptly renew from time to time, and will
promptly upon the request of the Agent furnish certified copies to the
Agent of, all authorisations as may be required under any applicable law or
regulation to enable it to perform its obligations under any Finance
Document or required for the validity or enforceability of any Finance
Document and each Borrower shall comply with the terms of the same.
19.6 PARI PASSU RANKING
Each Borrower undertakes that its obligations under the Finance Documents
shall rank at least pari passu with all of its other present and future
unsecured and unsubordinated obligations other than those obligations which
are mandatorily preferred by law and not by reason of contract.
19.7 NEGATIVE PLEDGE
No Borrower shall, and the Company shall not permit any Principal
Subsidiary to, create or suffer to exist any Encumbrance upon any of its
property, assets or revenues now owned or hereafter acquired, to secure any
Financial Indebtedness, provided however, that the foregoing shall not
apply to, and there shall be excluded from Financial Indebtedness secured
by Encumbrances in any computation under this covenant, Financial
Indebtedness secured by:
(a) Encumbrances in existence on the date of this Agreement securing
Financial Indebtedness not exceeding (Pounds)10,000,000 (or its
equivalent) in aggregate;
(b) Encumbrances arising by operation of law (or by an agreement to the
same effect) or arising in the conduct of the ordinary course of
business by any Borrower or Principal Subsidiary, including
mechanics', materialmen's, carriers', workmen's, vendors' or other
like Encumbrances securing amounts which are not more than 60 days
overdue or which are being contested in good faith;
(c) Encumbrances existing at the time of acquisition on any asset
(including real property) acquired or leased by any Borrower or
Principal Subsidiary after the date
41
of this Agreement or existing over property of any person at the time
such person is merged with or consolidated with that Borrower or
Principal Subsidiary or otherwise becomes a member of the Group and
not created in contemplation of that acquisition, lease, merger or
consolidation, provided that the principal amount of indebtedness
secured by such Encumbrance shall not be increased after the date of
that acquisition, lease, merger or consolidation;
(d) Encumbrances securing any asset (including real property) acquired,
leased or developed by any Borrower or Principal Subsidiary after the
date of this Agreement, so long as the aggregate principal amount
secured by such Encumbrances does not exceed five per cent. (5%) of
Gross Shareholders' Funds (as determined by reference to the then most
recent audited annual or unaudited interim consolidated accounts of
the Group) and such Encumbrances are for the sole purpose of financing
or refinancing or securing the cost of the acquisition or lease of
that asset or any improvements thereon or the projected cost of that
development, so long as the principal moneys thereby secured do not
exceed the cost of that acquisition or improvement or the projected
cost (including rolled up interest) of that development;
(e) judgment Encumbrances not giving rise to an Event of Default;
(f) rights of set off (which constitute Encumbrances) of a financial
institution with respect to:
(i) cash management schemes or similar arrangements within the normal
course of banking arrangements; or
(ii) deposits of any Borrower or Principal Subsidiary held by such
financial institution as security for its exposure in respect of
the clearing of funds in an amount not to exceed the aggregate
amount owed to such financial institution by the Company or any
of its Subsidiaries and where such rights of set off exist for no
more than five Business Days;
(g) Encumbrances upon specific items of inventory or other goods and
proceeds of any Borrower or Principal Subsidiary securing that
Borrower's or Principal Subsidiary's obligations in respect of letters
of credit issued or created for the account of such person to
facilitate the purchase, shipment or storage of such inventory or
other goods;
(h) any extension, renewal or replacement (or successive extensions,
renewals, or replacements), as a whole or in part, of any Encumbrance
referred to in paragraph (a), or (f) for amounts not exceeding the
principal amount of the borrowed money so extended, renewed or
replaced, provided that such extension, renewal or replacement
Encumbrance is limited to all or a part of the same assets that
secured the Encumbrance extended, renewed or replaced (plus
improvements on such assets); and
(i) Encumbrances of any Principal Subsidiary in favour of the Company.
Notwithstanding the foregoing, each Borrower and each Principal Subsidiary
may create or suffer to exist an Encumbrance which would otherwise be
subject to the foregoing
42
restrictions or result in any limit in those restrictions being exceeded,
provided that, after giving effect thereto, the aggregate amount of secured
Financial Indebtedness (excluding therefrom the amount of indebtedness
secured by Encumbrances set forth in paragraphs (a) to (i) (both inclusive)
above) does not exceed five per cent. (5%) of Gross Shareholders' Funds (as
determined by reference to the then most recent audited annual or unaudited
interim consolidated accounts of the Group).
19.8 GUARANTEES
(a) The Company shall procure that no guarantee or indemnity or other similar
binding assurance against financial loss is granted by any of its
Subsidiaries in respect of any Financial Indebtedness of the Company,
unless a similar guarantee, indemnity or other binding assurance has been
granted in favour of the Banks in respect of the Company's obligations
under the Finance Documents.
(b) Paragraph (a) above shall not apply to any guarantee, indemnity or other
similar binding assurance against financial loss granted by any Subsidiary
of the Company in connection with a cash management, pooling or set-off
arrangement operated in the ordinary course of business by a member of the
Group at any of its banks.
19.9 DISPOSALS
No Borrower shall, and the Company shall procure that none of the Principal
Subsidiaries shall:
(a) either in a single transaction or in a series of transactions, whether
related or not and whether voluntarily or involuntarily, sell,
transfer, lease or otherwise dispose of all or a substantial part of
its respective assets, except that the following disposals shall not
be taken into account:-
(i) disposals (including the discounting of bills or notes) made in
the ordinary course of business of the disposing entity;
(ii) disposals from a member of the Group to another member of the
Group unless the disposal is to enable the member of the Group
(not being a Borrower or a Principal Subsidiary) to make a
disposal which would not be permitted to be made by a Borrower
or Principal Subsidiary under this Clause;
(iii) disposals of cash raised or borrowed for the purposes for which
it was raised or borrowed;
(iv) disposals of investments listed or dealt in on any securities
exchange or over-the-counter market (not being investments in
any member of the Group);
(v) disposals of property in exchange for (or sale of assets for
cash and the application within 12 months of such amounts in the
acquisition of) other property comparable or superior as to
type, value and quality;
(vi) disposals on arm's length terms (including as to consideration);
43
(vii) disposals of obsolete assets for cash;
(viii) disposals, in addition to those permitted under sub-paragraphs
(i) to (vii) (both inclusive) above, during any financial year
of the Group where the aggregate book value of the property or
assets disposed of in that financial year does not exceed five
per cent. (5%) of Gross Shareholders' Funds (as determined by
reference to the then most recent audited annual or unaudited
interim consolidated accounts of the Group); or
(b) sell or otherwise dispose of any of its assets on terms whereby such
asset is or may be leased to or re-acquired or acquired by it or any
of its Subsidiaries, except that the following disposals shall not be
taken into account:-
(i) any sale and lease backs of real property on normal arm's
length commercial terms and any arrangement in existence at
the date hereof; or
(ii) any sale and lease-back or disposals of any property or assets
which are entered into to finance all or part of the price of
its acquisition, development, modification or improvement so
long as the aggregate book value of the property and assets so
disposed during any financial year of the Group (not including
those falling within sub-paragraph (i) above) does not exceed
five per cent. (5%) of Gross Shareholders' Funds (as
determined by reference to the then most recent audited annual
or unaudited interim consolidated accounts of the Group).
Notwithstanding the above, any Borrower or any Principal Subsidiary may
dispose of a substantial part of its assets if:-
(A) the Company delivers to the Agent, prior to the disposal being
effected, a certificate, signed on behalf of the Company by a
director of the Company, certifying that, immediately after the
disposal, the Company would be in compliance with Clause 19.14
(Financial condition), together with calculations in reasonable
detail evidencing the compliance; and
(B) in the reasonable opinion of the Majority Banks, the disposal would
not have a material adverse effect on the ability of the Company to
perform its payment obligations under the Finance Documents.
19.10 INDEBTEDNESS OF OPERATING SUBSIDIARIES
The Company shall not permit any Operating Subsidiary to incur or permit
to subsist any Financial Indebtedness to any person provided however that
the foregoing shall not apply to the following (so that they shall be
excluded from Financial Indebtedness in any computation under this
covenant):
(a) Financial Indebtedness incurred pursuant to arrangements in existence
at the date of this Agreement and any renewal or extension of those
arrangements;
(b) liabilities under the Finance Documents;
44
(c) Financial Indebtedness incurred by any person existing either at the
time of the acquisition of such person by a member of the Group or at
the time such person is merged with or consolidated with a member of
the Group or otherwise becomes a member of the Group provided that
the principal amount of such Financial Indebtedness shall not be
increased after the date of that acquisition, merger or
consolidation;
(d) any Financial Indebtedness constituted by debits on accounts
maintained with banks as a result of pooling, netting and set-off
arrangements existing with those banks which have extended overdraft,
cash settlement and cash management and other working capital and
investment management facilities;
(e) any Financial Indebtedness consented to by the Majority Banks; and
(f) any Financial Indebtedness (other than Financial Indebtedness
referred to in paragraphs (a) to (e) above) the principal aggregate
amount of which does not exceed 10 per cent. (10%) of Gross
Shareholders' Funds (as determined by reference to the then most
recent audited annual or unaudited interim consolidated accounts of
the Group).
For the purposes of this Clause, an "OPERATING SUBSIDIARY" is a trading
Subsidiary of the Company with its own turnover.
19.11 INSURANCE
Each Borrower will, and the Company shall procure that each of the
Principal Subsidiaries shall, carry and maintain in full force and effect
at all times with financially sound and reputable insurers, insurance with
respect to its real property and business against such liabilities,
casualties, risks and contingencies and of such types (including self-
insurance with appropriate reserves) and in such amounts as is consistent
with prudent business practice as determined by the Company's directors.
19.12 ENVIRONMENTAL LAWS
Each Borrower will, and the Company shall procure that each of the
Principal Subsidiaries shall, comply with and carry out its business in
accordance with all Environmental Laws necessary for the conduct of its
business where any failure to comply or carry out its business in
accordance with such Environmental Laws would have a material adverse
effect on the ability of the Company to perform its obligations under the
Finance Documents.
19.13 CHANGE OF BUSINESS
The Company shall ensure that the majority of the business carried on by
the Group at any time (determined by reference to the annual turnover of
the Group) comprises businesses relating to engineering, defence, general
manufacturing industry, related industrial services or any business
ancillary or related to any of the foregoing types.
19.14 FINANCIAL CONDITION
The Company shall procure that:
45
(a) as at the end of each of its financial years and as at the end of the
first half of each of its financial years, Total Consolidated Net
Borrowings shall not exceed 1.25 times Gross Shareholders' Funds; and
(b) as at the end of each of its financial years and as at the end of the
first half of each of its financial years, the ratio of Profit Before
Interest for the preceding 12 month period to Net Borrowing Costs for
the preceding 12 month period shall not be less than 3 to 1.
20. DEFAULT
20.1 EVENTS OF DEFAULT
Each of the events set out below is an Event of Default:
(a) NON-PAYMENT: a Borrower does not pay on the due date any amount
payable by it under the Finance Documents at the place and in the
currency at or in which it is expressed to be payable and the failure
to pay continues for five Business Days; or
(b) BREACH OF CLAUSE 19.14 (FINANCIAL CONDITION): the Company fails to
comply with either of its obligations under Clause 19.14 (Financial
condition); or
(c) BREACH OF OTHER OBLIGATIONS: a Borrower fails to comply with any
provision of any Finance Document (other than any provision referred
to in paragraphs (a) and (b) above) and such failure, if, in the
opinion of the Majority Banks, it is capable of remedy, is not
remedied within 30 days of the giving of written notice by the Agent
to the Company requiring such failure to be remedied; or
(d) MISREPRESENTATION: any representation, warranty or statement made or
repeated in any Finance Document, Request or any Compliance
Certificate is incorrect in any respect which is, in the opinion of
the Majority Banks, material in the context of this Agreement or
either of the Facilities to be provided under this Agreement; or
(e) Cross-acceleration:
(i) any Financial Indebtedness of any Borrower and/or any Principal
Subsidiary in an aggregate amount in excess of (Pounds)10,000,000
at any time becomes prematurely due and payable as a result of an
event of default (howsoever described) under any contract or
document relating to any such Financial Indebtedness; or
(ii) any Financial Indebtedness of any Borrower and/or any Principal
Subsidiary in an aggregate amount in excess of (Pounds)10,000,000
is not paid when due (after the expiry of any applicable grace
period specified in the terms of the relevant contract(s) or
documents relating to such Financial Indebtedness); or
(f) Insolvency:
(i) any Borrower or Principal Subsidiary is deemed unable to pay its
debts within the meaning of section 123(1)(b), (c), (d) (e) or
(2) of the Insolvency
46
Xxx 0000 (as that section may be amended by order under Section
416 of the Insolvency Xxx 0000 or otherwise); or
(ii) any Borrower or Principal Subsidiary becomes unable to pay its
debts as they fall due; or
(iii) any Borrower or Principal Subsidiary otherwise becomes
insolvent; or
(iv) any Borrower or Principal Subsidiary suspends making payments
(whether of principal or interest) with respect to all or any
class of its debts, or announces an intention to do so; or
(g) Administration:
(i) an administration order in relation to any Borrower or Principal
Subsidiary is made; or
(ii) any Borrower or Principal Subsidiary passes a resolution to
present an application for an administration order; or
(h) COMPOSITIONS ETC.: any steps are taken by the Company with a view
to proposing any kind of composition, scheme of arrangement,
compromise or arrangement involving any Borrower or Principal
Subsidiary and any of their respective creditors generally (or any
class of them); or
(i) Appointment of receivers and managers:
(i) any administrative or other receiver or any manager is appointed
of any Borrower or Principal Subsidiary or of all or any
substantial part of their respective assets; or
(ii) the directors of any Borrower or Principal Subsidiary request
any person to appoint such a receiver or manager; or
(iii) any other steps are taken to enforce any Encumbrance over any
substantial part ("substantial" being regarded as 15% for this
purpose) of the assets of any Borrower or Principal Subsidiary
unless such enforcement is being contested in good faith or does
not have a material adverse effect on the ability of the Company
to perform its obligations under the Finance Documents or is
otherwise discharged or stayed within 28 days; or
(j) LEGAL PROCESS: any attachment, sequestration, distress or execution
affects any substantial part ("substantial" being regarded as 15%
for this purpose) of the assets of any Borrower or Principal
Subsidiary and is not discharged or stayed within 28 days; or
(k) Winding up:
(i) any Borrower or Principal Subsidiary passes a resolution for (or
to petition for) its winding-up; or
47
(ii) any Borrower or Principal Subsidiary presents any petition for
the winding up of any Borrower or Principal Subsidiary; or
(iii) an order of a United Kingdom court or regulatory body for the
winding up of any Borrower or Principal Subsidiary is made;
(iv) any person (other than a Borrower or Principal Subsidiary)
presents a petition for the winding up of any Borrower or
Principal Subsidiary where the proceedings are not set aside or
withdrawn (unless they are vexatious or frivolous) within 28
days of their being instituted,
save in connection with a solvent winding-up of a Borrower (other than
the Company) or a Principal Subsidiary as part of a reorganisation
made with the consent of the Majority Banks such consent not to be
unreasonably withheld or delayed; or
(l) ANALOGOUS PROCEEDINGS: there occurs, in relation to any Borrower or
Principal Subsidiary in any country or territory in which any of them
carries on business or to the jurisdiction of whose courts any part of
their assets is subject, any event which, in the reasonable opinion of
the Majority Banks, corresponds in that country or territory with any
of those mentioned in paragraphs (f) to (k) (inclusive) above or any
Borrower or Principal Subsidiary otherwise becomes subject, in any
such country or territory, to any law relating to insolvency,
bankruptcy or liquidation; or
(m) UNLAWFULNESS: at any time it is unlawful for any Borrower to perform
any of its payment obligations under the Finance Documents or such
obligations cease to be legal, valid, binding and enforceable; or
(n) MATERIAL ADVERSE CHANGE: there shall occur any material adverse
change in the financial condition of the Group as of the date of this
Agreement which might reasonably be expected to prejudice the ability
of the Company to comply with its payment obligations under the
Finance Documents; or
(o) GUARANTEE: the obligations of the Company under Clause 17.1
(Guarantee) are not effective, or are alleged by the Company not to be
effective, for any reason; or
(p) CESSATION OF BUSINESS: any Borrower or Principal Subsidiary ceases or
threatens to cease to carry on its business as a going concern and, in
the case of a Principal Subsidiary, the cessation might, in the
reasonable opinion of the Majority Banks, be expected to have a
material adverse effect on the ability of the Company to perform its
obligations under the Finance Documents; or
(q) FAILURE TO COMPLY WITH FINAL JUDGMENT: any Borrower fails to comply
with or pay any sum due from it under any final judgment or any final
order made or given by any court of competent jurisdiction where such
failure to comply or pay such sum might reasonably be expected to have
a material adverse effect on the ability of the Company to perform its
obligations under the Finance Documents; or
(r) REPUDIATION OF AGREEMENT: the Company repudiates this Agreement or
does or causes to be done any act or thing clearly evidencing an
intention to repudiate this Agreement.
48
20.2 ACCELERATION
If any such event as is mentioned in Clause 20.1 (Events of Default) occurs
and at any time thereafter if any such event shall then be continuing, the
Agent may, and shall if so directed by the Majority Banks, by written
notice to the Company, such notice to be copied to the other Borrowers:
(a) declare that the Facilities and the Commitments shall be cancelled
forthwith, whereupon the same shall be so cancelled forthwith; and/or
(b) declare all or part of the Loans immediately due and payable,
whereupon the same shall become immediately due and payable together
with all interest accrued thereon and all other amounts payable under
the Finance Documents to the Finance Parties.
20.3 ADVANCES DUE ON DEMAND
If, pursuant to Clause 20.2 (Acceleration), the Agent declares all or any
part of the Loans to be due and payable on demand of the Agent, then, and
at any time thereafter, the Agent may (and, if so instructed by Majority
Banks, shall) by notice to the Company, such notice to be copied to the
other Borrowers:
(a) require repayment of all or such part of the Loans on such date as it
may specify in such notice (whereupon the same shall become due and
payable on the date specified together with accrued interest thereon
and any other sums then owed by the Borrowers under this Agreement) or
withdraw its declaration with effect from such date as it may specify;
and/or
(b) select as the duration of any Interest Period which begins whilst such
declaration remains in effect a period of six months or less.
21. THE AGENT AND THE ARRANGERS
21.1 APPOINTMENT AND DUTIES OF THE AGENT
(a) Each Finance Party (other than the Agent) irrevocably appoints the Agent to
act as its agent under and in connection with the Finance Documents.
(b) Each Party appointing the Agent irrevocably authorizes the Agent on its
behalf to:
(i) perform the duties and to exercise the rights, powers and discretions
that are specifically delegated to it under or in connection with the
Finance Documents, together with any other incidental rights, powers
and discretions; and
(ii) execute each Finance Document expressed to be executed by the Agent on
that Party's behalf.
(c) The Agent has only those duties which are expressly specified in the
Finance Documents. Those duties are solely of a mechanical and
administrative nature.
49
21.2 ROLE OF THE ARRANGERS
Except as specifically provided in the Finance Documents, the Arrangers
have no obligations of any kind to any other Party under or in connection
with any Finance Document.
21.3 RELATIONSHIP
The relationship between the Agent and the other Finance Parties is that of
agent and principal only. Except as contemplated by the Finance Documents,
nothing in this Agreement constitutes the Agent as trustee or fiduciary for
any other Party or any other person and the Agent need not hold in trust
any moneys paid to it for a Party or be liable to account for interest on
those moneys.
21.4 MAJORITY BANKS' INSTRUCTIONS
(a) The Agent will be fully protected if it acts in accordance with the
instructions of the Majority Banks in connection with the exercise of any
right, power or discretion or any matter not expressly provided for in the
Finance Documents. Any such instructions given by the Majority Banks will
be binding on all the Banks. In the absence of such instructions, the Agent
may act as it considers to be in the best interests of all the Banks.
(b) The Agent is not authorized to act on behalf of a Bank (without first
obtaining that Bank's consent) in any legal or arbitration proceedings
relating to any Finance Document.
21.5 DELEGATION
The Agent may act under the Finance Documents through its personnel and
agents.
21.6 RESPONSIBILITY FOR DOCUMENTATION
Neither the Agent nor any Arranger is responsible to any other Party for:
(a) the execution, genuineness, validity, enforceability or sufficiency of
any Finance Document or any other document;
(b) the collectability of amounts payable under any Finance Document; or
(c) the accuracy of any statements (whether written or oral) made in or in
connection with any Finance Document (including, without limitation,
any Information Memorandum).
21.7 DEFAULT
(a) The Agent is not obliged to monitor or enquire as to whether or not a
Default has occurred. The Agent will not be deemed to have knowledge of the
occurrence of a Default. However, if the Agent receives notice from a Party
referring to this Agreement, describing the Default and stating that the
event is a Default, it shall promptly notify the Banks.
(b) The Agent may require the receipt of security satisfactory to it, whether
by way of payment in advance or otherwise, against any liability or loss
which it will or may incur in taking any
50
proceedings or action arising out of or in connection with any Finance
Document before it commences those proceedings or takes that action.
21.8 EXONERATION
(a) Without limiting paragraph (b) below, the Agent will not be liable to any
other Finance Party for any action taken or not taken by it under or in
connection with any Finance Document, unless directly caused by its gross
negligence or wilful misconduct.
(b) No Party may take any proceedings against any officer, employee or agent of
the Agent in respect of any claim it might have against the Agent or in
respect of any act or omission of any kind (including gross negligence or
wilful misconduct) by that officer, employee or agent in relation to any
Finance Document.
21.9 RELIANCE
The Agent may:
(a) rely on any notice or document believed by it to be genuine and
correct and to have been signed by, or with the authority of, the
proper person;
(b) rely on any statement made by a director or employee of any person
regarding any matters which may reasonably be assumed to be within his
knowledge or within his power to verify; and
(c) engage, pay for and rely on legal or other professional advisers
selected by it (including those in the Agent's employment and those
representing a Party other than the Agent).
21.10 CREDIT APPROVAL AND APPRAISAL
Without affecting the responsibility of any Borrower for information
supplied by it or on its behalf in connection with any Finance Document,
each Bank confirms that it:
(a) has made its own independent investigation and assessment of the
financial condition and affairs of each Borrower 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
Agent or the Arranger in connection with any Finance Document; and
(b) will continue to make its own independent appraisal of the
creditworthiness of each Borrower and its related entities while any
amount is or may be outstanding under the Finance Documents or any
Commitment is in force.
21.11 INFORMATION
(a) The Agent shall promptly forward to the person concerned the original
or a copy of any document which is delivered to the Agent by a Party
for that person.
51
(b) The Agent shall promptly supply a Bank with a copy of each document
received by the Agent under Clause 4 (Conditions precedent) or 28.4
(Additional Borrowers) upon the request and at the expense of that Bank.
(c) Except where this Agreement specifically provides otherwise, the Agent is
not obliged to review or check the accuracy or completeness of any document
it forwards to another Party.
(d) Except as provided above, the Agent has no duty:
(i) either initially or on a continuing basis to provide any Bank with any
credit or other information concerning the financial condition or
affairs of any Borrower or any related entity of any Borrower whether
coming into its possession before, on or after the date of this
Agreement; or
(ii) unless specifically requested to do so by a Bank in accordance with a
Finance Document, to request any certificates or other documents from
any Borrower.
21.12 THE AGENT AND THE ARRANGERS INDIVIDUALLY
(a) If it is also a Bank, the Agent and each Arranger has the same rights and
powers under this Agreement as any other Bank and may exercise those rights
and powers as though it were not the Agent or an Arranger.
(b) The Agent and each Arranger may:
(i) carry on any business with a Borrower or its related entities;
(ii) act as agent or trustee for, or in relation to any financing
involving, a Borrower or its related entities; and
(iii) retain any profits or remuneration in connection with its activities
under this Agreement or in relation to any of the foregoing.
(c) In acting as the Agent, the agency division of the Agent will be treated as
a separate entity from its other divisions and departments. Any information
acquired by the Agent which, in its opinion, is acquired by it otherwise
than in its capacity as the Agent may be treated as confidential by the
Agent and will not be deemed to be information possessed by the Agent in
its capacity as such.
(d) Each Borrower irrevocably authorizes the Agent to disclose to the other
Finance Parties any information which, in the opinion of the Agent, is
received by it in its capacity as the Agent.
(e) The Agent may deduct from any amount received by it for the Banks pro rata
any unpaid fees, costs and expenses of the Agent incurred by it in
connection with the Finance Documents.
21.13 INDEMNITIES
(a) Without limiting the liability of any Borrower under the Finance Documents,
each Bank shall forthwith on demand indemnify the Agent for that Bank's
proportion of any liability or loss
52
incurred by the Agent in any way relating to or arising out of its acting
as the Agent, except to the extent that the liability or loss arises
directly from the Agent's gross negligence or wilful misconduct.
(b) A Bank's proportion of the liability or loss set out in paragraph (a) above
will be the proportion which its participation in the Loans (if any) bears
to the Original Sterling Amount of all the Loans on the date of the demand.
However, if there are no Loans outstanding on the date of demand, then the
proportion will be the proportion which its Commitments bears to the Total
Commitments at the date of demand or, if the Total Commitments have then
been cancelled, bore to the Total Commitments immediately before being
cancelled.
21.14 COMPLIANCE
(a) The Agent may refrain from doing anything which might, in its opinion,
constitute a breach of any law or regulation or be otherwise actionable at
the suit of any person, and may do anything which, in its opinion, is
necessary or desirable to comply with any law or regulation of any
jurisdiction.
(b) Without limiting paragraph (a) above, the Agent need not disclose any
information relating to any Borrower or any of its related entities if the
disclosure might, in the opinion of the Agent, constitute a breach of any
law or regulation or any duty of secrecy or confidentiality or be otherwise
actionable at the suit of any person.
21.15 RESIGNATION OF THE AGENT
(a) Notwithstanding its irrevocable appointment, the Agent may resign by giving
notice to the Banks and the Company, in which case the Agent may forthwith
appoint one of its Affiliates as successor Agent or, failing that, the
Majority Banks may (with the prior consent of the Company) appoint a
successor Agent.
(b) If the appointment of a successor Agent is to be made by the Majority Banks
but they have not, within 30 days after notice of resignation, appointed a
successor Agent which accepts the appointment, the Agent may (with the
prior consent of the Company) appoint a successor Agent.
(c) The resignation of the Agent and the appointment of any successor Agent
will both become effective only upon the successor Agent notifying all the
Parties that it accepts its appointment. On giving the notification, the
successor Agent will succeed to the position of the Agent and the term
"AGENT" will mean the successor Agent.
(d) The retiring Agent shall, at its own cost, make available to the successor
Agent such documents and records and provide such assistance as the
successor Agent may reasonably request for the purposes of performing its
functions as the Agent under this Agreement.
(e) Upon its resignation becoming effective, this Clause 21 shall continue to
benefit the retiring Agent in respect of any action taken or not taken by
it under or in connection with the Finance Documents while it was the
Agent, and, subject to paragraph (d) above, it shall have no further
obligations under any Finance Document.
53
(f) The Majority Banks may, by notice to the Agent, require it to resign in
accordance with paragraph (a) above. In this event, the Agent shall resign
in accordance with paragraph (a) above but it shall not be entitled to
appoint one of its Affiliates as successor Agent.
21.16 BANKS
(a) The Agent may treat each Bank as a Bank, entitled to payments under this
Agreement and as acting through its Facility Office(s) until it has
received not less than five Business Days' prior notice from that Bank to
the contrary.
(b) The Agent may at any time, and shall if requested to do so by the Majority
Banks, convene a meeting of the Banks.
22. FEES
22.1 ARRANGEMENT FEE
The Company shall pay to the Arrangers an arrangement fee (comprising
underwriting and syndication fees) in the amounts and on the dates agreed
in the Fee Letter between the Arrangers and the Company.
22.2 AGENT'S FEE
The Company shall pay to the Agent for its own account an agency fee in
the amount and on the dates agreed in the Fee Letter between the Agent and
the Company.
22.3 COMMITMENT FEE
(a) The Company shall during the Commitment Period pay to the Agent for each
Bank a commitment fee in Sterling computed at the rate of:
(i) 0.125 per cent. per annum on the undrawn, uncancelled amount of that
Bank's Facility A Commitment; and
(ii) 0.08 per cent. per annum on the undrawn, uncancelled amount of that
Bank's Facility B Commitment.
For this purpose Loans are taken at their Original Sterling Amount.
(b) Accrued commitment fee is payable quarterly in arrear, with the first
payment being payable three months after the date of this Agreement.
Accrued commitment fee shall also be payable to the Agent for the relevant
Bank on the cancelled amount of its Commitment at the time the
cancellation comes into effect.
22.4 UTILISATION FEE
(a) The Company shall pay to the Agent for each Bank a utilisation fee in
Sterling computed at the rate of 0.025 per cent. per annum on the
aggregate Original Sterling Amount of Loans outstanding in respect of any
period during which the Original Sterling Amount of Loans outstanding
during that period exceeds 50% of the Total Commitments at the date of
this Agreement. For this purpose Loans are taken at their Original
Sterling Amount.
54
(b) Accrued utilisation fee is payable quarterly in arrear.
22.5 VAT
Any fee referred to in this Clause 22 is exclusive of any value added tax
or any other tax which might be chargeable in connection with that fee. If
any value added tax or other tax is so chargeable, it shall be paid by the
Company at the same time as it pays the relevant fee.
23. EXPENSES
23.1 INITIAL AND SPECIAL COSTS
The Company shall within 14 days of demand pay the Arrangers the amount of
all reasonable costs and expenses (including reasonable legal fees up to
the limit agreed in the Fee Letter between the Arrangers and the Company
and any applicable value added tax) incurred by them in connection with the
negotiation, preparation, printing and execution of this Agreement and the
syndication of the Facilities.
23.2 ENFORCEMENT COSTS
The Company shall within 14 days of demand pay to each Finance Party the
amount of all reasonable costs and expenses (including legal fees and any
applicable value added tax) incurred by it in connection with the
enforcement of, or the preservation of any rights under, any Finance
Document.
24. STAMP DUTIES
The Company shall pay and forthwith on demand indemnify each Finance Party
against any liability it incurs in respect of any stamp, registration and
similar tax which is or becomes payable:
(a) in the jurisdiction of incorporation of any Borrower in connection
with the entry into or performance of any Finance Document; or
(b) anywhere in connection with the enforcement of any Finance Document,
including any liability which results from any failure to pay or any delay
in paying such tax.
25. INDEMNITIES
25.1 CURRENCY INDEMNITY
(a) If a Finance Party receives an amount in respect of a Borrower's liability
under the Finance Documents or if that liability is converted into a claim,
proof, judgment or order in a currency other than the currency (the
"CONTRACTUAL CURRENCY") in which the amount is expressed to be payable
under the relevant Finance Document:
(i) that Borrower shall indemnify that Finance Party as an independent
obligation against any loss or liability arising out of or as a result
of the conversion;
55
(ii) if the amount received by that Finance Party, when converted into the
contractual currency at a market rate in the usual course of its
business is less than the amount owed in the contractual currency,
the Borrower concerned shall forthwith on demand pay to that Finance
Party an amount in the contractual currency equal to the deficit; and
(iii) the Borrower shall forthwith on demand pay to the Finance Party
concerned any exchange costs and taxes payable in connection with any
such conversion.
(b) Each Borrower waives any right it may have in any jurisdiction to pay any
amount under the Finance Documents in a currency other than that in which
it is expressed to be payable.
25.2 OTHER INDEMNITIES
(a) The Company shall indemnify each Finance Party against any loss or
liability which that Finance Party incurs as a consequence of:
(i) the occurrence of any Event of Default;
(ii) the operation of Clause 20.2 (Acceleration); or
(iii) a Loan (or part of a Loan) not being prepaid in accordance with a
notice of prepayment or (other than by reason of negligence or
default by that Finance Party) a Loan not being made after the
Borrower has delivered a Request.
The Company's liability in each case includes any loss (other than loss of
margin) or expense on account of funds borrowed, contracted for or
utilised to fund any amount payable under any Finance Document, any amount
repaid or prepaid or any Loan.
(b) If a Bank receives or recovers any payment of principal of a Loan or of an
overdue amount other than on the last day of the Interest Period relative
to that Loan or amount so received or recovered, the Bank shall calculate
the difference between:
(i) the additional interest which would have been payable on the
principal so received or recovered had it been received or recovered
on the last day of the relevant Interest Period; and
(ii) the amount of interest which, in the reasonable opinion of the Bank,
would have been payable to the Bank on the last day of that Interest
Period in respect of the principal so received or recovered if the
principal so received or recovered had been placed on deposit by the
Bank earning interest at the rate quoted by the Bank to the relevant
Borrower to be that at which money can be deposited by that Bank with
a prime bank for a period starting on the Business Day following the
date of receipt or recovery and ending on the last day of that
Interest Period.
If (i) is greater than (ii) then the relevant Borrower shall, within five
Business Days of a demand from the relevant Bank, pay to that Bank an
amount equal to the difference.
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26. EVIDENCE AND CALCULATIONS
26.1 ACCOUNTS
Accounts maintained by a Finance Party in connection with this Agreement
are prima facie evidence of the matters to which they relate.
26.2 CERTIFICATES AND DETERMINATIONS
Any certification or determination by a Finance Party of a rate or amount
under the Finance Documents must be accompanied by a calculation in
reasonable detail and any applicable invoices and is prima facie evidence
of the matters to which it relates.
26.3 CALCULATIONS
Interest (including any applicable MLA Cost) and the fees payable under
Clause 22.3 (Commitment fee) and 22.4 (Utilisation fee) accrue from day to
day and are calculated on the basis of the actual number of days elapsed
and a year of 365 days, or, in the case of interest payable on an amount
denominated in an Optional Currency or euros only (unless market practice
otherwise dictates), 360 days.
27. AMENDMENTS AND WAIVERS
27.1 PROCEDURE
(a) Subject to Clause 27.2 (Exceptions), any term of the Finance Documents may
be amended or waived with the agreement of the Company, and the Majority
Banks. The Agent may effect, on behalf of any Finance Party, an amendment
or waiver permitted under this Clause.
(b) The Agent shall promptly notify the other Parties of any amendment or
waiver effected under paragraph (a) above, and any such amendment or waiver
shall be binding on all the Parties.
27.2 EXCEPTIONS
(a) An amendment or waiver which relates to:
(i) the definition of "MAJORITY BANKS" in Clause 1.1 (Definitions);
(ii) an extension of the date (including any Final Maturity Date) for, or
a decrease in an amount or a change in the currency of, any payment
to that Bank under the Finance Documents (including the Margin and
any fee payable under Clause 22.3 (Commitment fee) or 22.4
(Utilisation fee));
(iii) an increase in a Bank's Commitment;
(iv) a term of a Finance Document which expressly requires the consent of
all the Banks; or
(v) Clause 2.3 (Nature of a Finance Party's rights and obligations),
Clause 28.2 (Transfers by Banks), Clause 31 (Pro rata sharing) or
this Clause 26,
57
may not be effected without the agreement of all the Banks.
(b) An amendment or waiver which relates to the rights and/or obligations of
the Agent may not be effected without the agreement of the Agent.
27.3 WAIVERS AND REMEDIES CUMULATIVE
The rights of each Finance Party under the Finance Documents:
(a) may be exercised as often as necessary;
(b) are cumulative and not exclusive of its rights under the general law;
and
(c) may be waived only in writing and specifically.
Delay in exercising or non-exercise of any such right is not a waiver of
that right.
28. CHANGES TO THE PARTIES
28.1 TRANSFERS BY BORROWERS
No Borrower may assign, transfer, novate or dispose of any of, or any
interest in, its rights and/or obligations under the Finance Documents.
28.2 TRANSFERS BY BANKS
(a) A Bank (the "EXISTING BANK") may, subject to paragraph (b) below, at any
time assign, transfer or novate any of its Commitments and/or any of its
rights and/or obligations under this Agreement to another bank or financial
institution (the "NEW BANK").
(b) (i) A transfer of part of a Commitment must be in a minimum amount of at
least (Pounds)5,000,000; and
(ii) the prior consent of the Company is required for any such assignment,
transfer or novation. However, the prior consent of the Company must
not be unreasonably withheld or delayed. The consent of the Company
will be deemed to be given if the Company has not responded to any
request for consent by the expiry of 15 Business Days from the date of
the delivery of such request to the Company.
Notwithstanding the above, if the Existing Bank gives the Company prior
notice, any transfer from an Existing Bank to :-
(A) a Bank which is a Qualifying Bank; or
(B) an Affiliate (which is a Qualifying Bank) of a Bank,
shall not require the prior consent of the Company.
(c) A transfer of obligations will be effective only if either:
58
(i) the obligations are novated in accordance with Clause 28.3 (Procedure
for novations); or
(ii) the New Bank confirms to the Agent and the Company that it undertakes
to be bound by the terms of this Agreement as a Bank in form and
substance satisfactory to the Agent. On the transfer becoming
effective in this manner the Existing Bank shall be relieved of its
obligations under this Agreement to the extent that they are
transferred to the New Bank.
(d) If a Bank gives the Company prior notice, a Bank may sub-contract an
obligation to a person if that Bank remains liable under this Agreement for
that obligation.
(e) On each occasion an Existing Bank assigns, transfers or novates any of its
Commitments and/or any of its rights and/or obligations under this
Agreement (otherwise than pursuant to a Syndication Agreement), the New
Bank shall, on the date the assignment, transfer and/or novation takes
effect, pay to the Agent for its own account a fee of (Pounds)750.
(f) An Existing Bank is not responsible to a New Bank for:
(i) the execution, genuineness, validity, enforceability or sufficiency
of any Finance Document or any other document;
(ii) the collectability of amounts payable under any Finance Document; or
(iii) the accuracy of any statements (whether written or oral) made in or
in connection with any Finance Document.
(g) Each New Bank confirms to the Existing Bank and the other Finance Parties
that it:
(i) has made its own independent investigation and assessment of the
financial condition and affairs of each Borrower 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 Bank in connection with any Finance Document; and
(ii) will continue to make its own independent appraisal of the
creditworthiness of each Borrower and its related entities while any
amount is or may be outstanding under this Agreement or any
Commitment is in force.
(h) Nothing in any Finance Document obliges an Existing Bank to:
(i) accept a re-transfer from a New Bank of any of the rights and/or
obligations assigned, transferred or novated under this Clause; or
(ii) support any losses incurred by the New Bank by reason of the non-
performance by any Borrower of its obligations under this Agreement
or otherwise.
(i) Any reference in this Agreement to a Bank includes a New Bank but excludes
a Bank if no amount is or may be owed to or by it under this Agreement and
its Commitment has been cancelled or reduced to nil.
59
28.3 PROCEDURE FOR NOVATIONS
(a) A novation is effected if:
(i) the Existing Bank and the New Bank deliver to the Agent a duly
completed certificate, substantially in the form of Part I of
Schedule 5 (a "NOVATION CERTIFICATE"); and
(ii) the Agent executes it.
(b) Each Party (other than the Existing Bank and the New Bank) 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 Bank and the other Parties (the "EXISTING PARTIES") will
be released from their obligations to each other (the "DISCHARGED
OBLIGATIONS");
(ii) the New Bank 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 Bank instead of the
Existing Bank;
(iii) the rights of the Existing Bank against the existing Parties and vice
versa (the "DISCHARGED RIGHTS") will be cancelled; and
(iv) the New Bank 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 Bank instead of the
Existing Bank,
all on the date of execution of the Novation Certificate by the Agent or,
if later, the date specified in the Novation Certificate.
28.4 ADDITIONAL BORROWERS
(a) If the Company wishes one of its Subsidiaries to become an Additional
Borrower, then it may (after prior consultation with the Agent) deliver to
the Agent the documents listed in Part II of Schedule 2.
(b) On delivery of a Borrower Accession Agreement, executed by the relevant
Subsidiary and the Company, the Subsidiary concerned will become an
Additional Borrower. However, it may not submit a Request until the Agent
confirms to the other Finance Parties and the Company that it has received
all the documents referred to in paragraph (a) above in form and substance
satisfactory to it.
(c) Delivery of a Borrower Accession Agreement, executed by the relevant
Subsidiary and the Company, constitutes confirmation by that Subsidiary and
the Company that the representations and warranties set out in Clause 18.2
(Status) to 18.9 (Litigation) are correct on the date of the Borrower
Accession Agreement, as if made by them with reference to the facts and
circumstances then existing.
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28.5 REFERENCE BANKS
If a Reference Bank (or, if a Reference Bank is not a Bank, the Bank of
which it is an Affiliate) ceases to be a Bank, the Agent shall (in
consultation with the Company) appoint another Bank or an Affiliate of a
Bank to replace that Reference Bank.
28.6 REGISTER
The Agent shall keep a register of all the Parties and shall supply any
other Party (at that Party's expense) with a copy of the register on
request.
28.7 CESSATION OF BORROWER
If no amount is owed under the Finance Documents by a Borrower (other than
the Company), the Company may by notice to the Agent designate that that
Borrower will cease to be a Borrower for the purposes of this Agreement.
Without prejudice to any right which a Finance Party may have against that
Borrower, notwithstanding any other term of this Agreement, that Borrower
shall cease to be a Borrower for the purposes of this Agreement on the date
specified in the notice.
29. DISCLOSURE OF INFORMATION
A Bank 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:
(a) a copy of any Finance Document; and
(b) any information which that Bank has acquired under or in connection
with any Finance Document,
but only if:
(i) the Company has given its consent in circumstances where its consent
is required under Clause 28 (Changes to the Parties) to the relevant
assignment, transfer or novation; and
(ii) the proposed recipient of the information has agreed with the Company
to keep that information confidential on terms acceptable to the
Company.
30. SET-OFF
Except to the extent that an Encumbrance is created, a Finance Party may,
if an Event of Default is then outstanding, set off any matured obligation
owed by a Borrower under the Finance Documents (to the extent beneficially
owned by that Finance Party) against any obligation (whether or not
matured) owed by that Finance Party to that Borrower, regardless of the
place of payment, booking branch or currency of either obligation. If the
obligations are in different currencies, the Finance Party 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
61
unliquidated or unascertained, the Finance Party may set off in an amount
estimated by it in good faith to be the amount of that obligation.
31. PRO RATA SHARING
31.1 REDISTRIBUTION
If any amount owing by a Borrower under this Agreement to a Finance Party
(the "RECOVERING FINANCE PARTY") is discharged by payment, set-off or any
other manner other than through the Agent in accordance with Clause 12
(Payments) (a "RECOVERY"), then:
(a) the recovering Finance Party shall, within three Business Days, notify
details of the recovery to the Agent;
(b) the Agent shall determine whether the recovery is in excess of the
amount which the recovering Finance Party would have received had the
recovery been received by the Agent and distributed in accordance with
Clause 12 (Payments);
(c) subject to Clause 31.3 (Exceptions), the recovering Finance Party
shall within three Business Days of demand by the Agent pay to the
Agent an amount (the "REDISTRIBUTION") equal to the excess;
(d) the Agent shall treat the redistribution as if it were a payment by
the Borrower concerned under Clause 12 (Payments) and shall pay the
redistribution to the Finance Parties (other than the recovering
Finance Party) in accordance with Clause 12.7 (Partial payments); and
(e) after payment of the full redistribution, the recovering Finance Party
will be subrogated to the portion of the claims paid under paragraph
(d) above and that Borrower will owe the recovering Finance Party a
debt which is equal to the redistribution, immediately payable and of
the type originally discharged.
31.2 REVERSAL OF REDISTRIBUTION
If under Clause 31.1 (Redistribution):
(a) a recovering Finance Party must subsequently return a recovery, or an
amount measured by reference to a recovery, to a Borrower; and
(b) the recovering Finance Party has paid a redistribution in relation to
that recovery,
each Finance Party shall, within three Business Days of demand by the
recovering Finance Party through the Agent, reimburse the recovering
Finance Party all or the appropriate portion of the redistribution paid to
that Finance Party together with interest on the amount to be returned to
the recovering Finance Party for the period whilst it held the re-
distribution. Thereupon, the subrogation in Clause 31.1(e) (Redistribution)
will operate in reverse to the extent of the reimbursement.
62
31.3 EXCEPTIONS
(a) A recovering Finance Party need not pay a redistribution to the extent that
it would not, after the payment, have a valid claim against the Borrower
concerned in the amount of the redistribution pursuant to Clause 31.1(e)
(Redistribution).
(b) A recovering Finance Party is not obliged to share with any other Finance
Party any amount which the recovering Finance Party has received or
recovered as a result of taking legal proceedings, if the other Finance
Party had an opportunity to participate in those legal proceedings but did
not do so or did not take separate legal proceedings.
32. SEVERABILITY
If a provision of any Finance Document is or becomes illegal, invalid or
unenforceable in any jurisdiction, that shall not affect:
(a) the validity or enforceability in that jurisdiction of any other
provision of the Finance Documents; or
(b) the validity or enforceability in other jurisdictions of that or any
other provision of the Finance Documents.
33. ECONOMIC AND MONETARY UNION
33.1 COMING INTO EFFECT OF PROVISIONS
Clause 33.2 (Redenomination and alternative currencies) to Clause 33.8
(Rounding and other consequential changes) (inclusive) shall come into
effect on the Commencement Date PROVIDED THAT, if and to the extent that
any such Clause relates to any state (or the currency of such state) which
shall not be a participating member state on the Commencement Date, such
Clause shall come into effect in relation to such state (and the currency
of such state) on and from the date on which such state becomes a
participating member state.
33.2 REDENOMINATION AND ALTERNATIVE CURRENCIES
Each obligation under this Agreement which has been denominated in a
national currency shall be redenominated into euros in accordance with EMU
legislation. However, if and to the extent that any EMU legislation
provides that an amount (which is (a) denominated either in euros or in the
national currency of a participating member state and (b) payable within
that participating member state by crediting an account of the creditor)
can be paid by the debtor either in euros or in that national currency,
each party to this Agreement shall be entitled to pay or repay any such
amount either in euros or in such national currency.
33.3 LOANS
Any Loans in the currency of a participating member state shall be made in
euros.
63
33.4 BUSINESS DAYS
In relation to any amount denominated or to be denominated in euros or a
national currency, any reference to a Business Day shall be construed as a
reference to a day (other than a Saturday or Sunday) on which banks are
generally open for business in London.
33.5 PAYMENTS TO THE AGENT
Clause 12.2 (Funds) shall be construed so that, in relation to the payment
of any amount of euros or national currency, such amount shall be made
available to the Agent in immediately available, freely transferable,
cleared funds to such account with such bank in such principal centre in
such participating member state (or in London) as the Agent shall from time
to time nominate for this purpose.
33.6 PAYMENTS BY THE AGENT TO THE BANKS
Any amount payable by the Agent to the Banks under this Agreement in the
currency of a participating member state shall be paid in euros.
33.7 PAYMENTS SYSTEM AND THE AGENT
In relation to the payment of any amount denominated in euros or in a
national currency, the Agent shall not be liable to any of the Banks for
any delay, or the consequences of any delay, in the crediting to any
account of any amount required by this Agreement to be paid by the Agent if
the Agent shall have taken all relevant steps to achieve, on the date
required by this Agreement, the payment of such amount in immediately
available, freely transferable, cleared funds (in euros or, as the case may
be, in the national currency) to the account with the bank in the principal
financial centre in the participating member state which the Borrower or,
as the case may be, any Bank shall have specified for such purpose. In
this Clause 33.7, "all relevant steps" means all such steps as may be
prescribed from time to time by the regulations or operating procedures of
such clearing or settlement system as the Agent may from time to time
determine for the purpose of clearing or settling payments of euros.
33.8 ROUNDING AND OTHER CONSEQUENTIAL CHANGES
Without prejudice and in addition to any method of conversion or rounding
prescribed by any EMU legislation:
(a) each reference in this Agreement to a minimum amount (or an integral
multiple thereof) in a national currency to be paid to or by the Agent
shall be replaced by a reference to such reasonably comparable and
convenient amount (or an integral multiple thereof) in euros as the
Agent may from time to time specify; and
(b) save as expressly provided in this Clause 33, this Agreement shall be
subject to such reasonable changes of construction as the Agent may
from time to time specify to be necessary or appropriate to reflect
the introduction of or changeover to euros in participating member
states,
PROVIDED THAT this Clause 33 (Economic and Monetary Union) shall not reduce
or increase any actual or contingent liability arising under this
Agreement.
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34. COUNTERPARTS
Each Finance Document may be executed in any number of counterparts, and
this has the same effect as if the signatures on the counterparts were on a
single copy of the Finance Document.
35. NOTICES
35.1 GIVING OF NOTICES
All notices or other communications under or in connection with this
Agreement shall be given in writing and, unless otherwise stated, may be
made by letter or facsimile. Any such notice will be deemed to be given as
follows:
(a) if by letter, when delivered personally or on actual receipt; and
(b) if by facsimile, when received in legible form. Any notice received
by facsimile by the Agent will require to be delivered in its original
form. However, any facsimile not received in original form by the
Agent shall not invalidate the notice.
However, a notice given in accordance with the above but received on a non-
working day or after business hours in the place of receipt will only be
deemed to be given on the next working day in that place.
35.2 ADDRESSES FOR NOTICES
(a) The address and facsimile number of each Party (other than the Company and
the Agent) for all notices under or in connection with the Finance
Documents are:
(i) those notified by that Party for this purpose to the Agent on or
before the date it becomes a Party; or
(ii) any other notified by that Party for this purpose to the Agent by not
less than five Business Days' notice.
(b) The address and facsimile number of the Borrowers are:
TI Group plc
Xxxxxxxx Xxxxx
Xxxxxxxx
Xxxx XX00 0XX
Facsimile no: 01235 555818
For the attention of: Group Treasurer
or such other as the Company may notify to the Agent by not less than five
Business Days' notice.
65
(c) The address and facsimile number of the Agent are:
HSBC Investment Bank plc
Vintners Place
00 Xxxxx Xxxxxx Xxxxxx
Xxxxxx
XX0X 0XX
Facsimile no: (0000) 000 0000
For the attention of: Specialised Financing Loans Administration
or such other as the Agent may notify to the other Parties by not less than
five Business Days' notice.
(d) All notices from or to a Borrower shall be sent through the Agent.
(e) The Agent shall, promptly upon request from any Party, give to that Party
the address or fax number of any other Party applicable at the time for the
purposes of this Clause.
36. LANGUAGE
(a) Any notice given under or in connection with any Finance Document shall be
in English.
(b) All other documents provided under or in connection with any Finance
Document 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.
37. JURISDICTION
37.1 SUBMISSION
For the benefit of each Finance Party, each Borrower agrees that the courts
of England have jurisdiction to settle any disputes in connection with any
Finance Document and accordingly submits to the jurisdiction of the English
courts.
37.2 SERVICE OF PROCESS
Without prejudice to any other mode of service, each Borrower (other than a
Borrower incorporated in England and Wales):
(a) irrevocably appoints the Company as its agent for service of process
in relation to any proceedings before the English courts in connection
with any Finance Document;
(b) agrees that failure by a process agent to notify the relevant Borrower
of the process will not invalidate the proceedings concerned; and
66
(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 35.2 (Addresses for notices).
37.3 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 a Finance
Document; and
(b) agrees that a judgment or order of an English court in connection with
a Finance Document is conclusive and binding on it and may be enforced
against it in the courts of any other jurisdiction.
37.4 NON-EXCLUSIVITY
Nothing in this Clause 37 limits the right of a Finance Party to bring
proceedings against a Borrower in connection with any Finance Document:
(a) in any other court of competent jurisdiction; or
(b) concurrently in more than one jurisdiction.
38. GOVERNING LAW
This Agreement is governed by English law.
This Agreement has been entered into on the date stated at the beginning of this
Agreement.
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SCHEDULE 1
BANKS AND COMMITMENTS
PART I
BANKS AND COMMITMENTS - FACILITY A
BANKS COMMITMENTS
(Pounds)
ABN AMRO BANK N.V. 83,333,334
CITIBANK, N.A. 83,333,333
MIDLAND BANK plc 83,333,333
___________
Total A Commitments (Pounds)250,000,000
___________
PART II
BANKS AND COMMITMENTS - FACILITY B
BANKS COMMITMENTS
(Pounds)
ABN AMRO BANK N.V. 83,333,333
CITIBANK, N.A. 83,333,334
MIDLAND BANK plc 83,333,333
___________
Total B Commitments (Pounds)250,000,000
___________
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SCHEDULE 2
CONDITIONS PRECEDENT DOCUMENTS
PART I
TO BE DELIVERED BEFORE THE FIRST LOAN
1. A copy of the memorandum and articles of association and certificate of
incorporation of the Company and TIIH.
2. A copy of a resolution of the board of directors or a duly authorised
committee of the board of directors of each of the Company and TIIH,
approving the terms of, and the transactions contemplated by, this
Agreement, together with, if applicable, a copy of a resolution of the
relevant board of directors establishing the committee.
3. A specimen of the signature of each person authorized by each resolution
referred to in paragraph 2 above to sign this Agreement and to sign and/or
despatch all documents and notices (including Requests) to be signed and/or
despatched by it under or in connection with this Agreement.
4. A certificate of an authorized signatory of the Company confirming that the
borrowing of the Total Commitments in full would not cause any borrowing
limit binding on any Borrower to be exceeded.
5. A certificate of an authorized signatory of the Company certifying that
each copy document specified in Part I of this Schedule 2 is correct,
complete and in full force and effect as at a date no earlier than the date
of this Agreement.
6. A legal opinion of Xxxxxxxx Chance, legal advisers to the Arrangers and the
Agent, addressed to the Finance Parties.
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PART II
TO BE DELIVERED BY AN ADDITIONAL BORROWER
1. A Borrower Accession Agreement, duly executed by the Additional Borrower
and the Company.
2. A copy of the memorandum and articles of association and certificate of
incorporation or other constitutional documents of the Additional Borrower.
3. A copy of a resolution of the board of directors of the Additional Borrower
approving the terms of, and the transactions contemplated by, the Borrower
Accession Agreement.
4. A specimen of the signature of each person authorized by the resolution
referred to in paragraph 3 above to sign the Borrower Accession Agreement
and to sign and/or despatch all documents and notices (including Requests)
to be signed and/or despatched by it under or in connection with this
Agreement.
5. A certificate of a director of the Additional Borrower confirming that the
borrowing of the Total Commitments in full would not cause any borrowing
limit binding on it to be exceeded.
6. A copy of any other authorization or other document which is necessary in
connection with the entry into and performance of, and the transactions
contemplated by, the Borrower Accession Agreement or for the validity and
enforceability of any Finance Document.
7. If produced, the latest audited accounts of the Additional Borrower.
8. A certificate of an authorized signatory of the Additional Borrower
certifying that each copy document specified in Part II of this Schedule 2
is correct, complete and in full force and effect as at a date no earlier
than the date of the Borrower Accession Agreement.
9. A legal opinion of Xxxxx & Overy, legal advisers to the Company, addressed
to the Finance Parties.
10. Where relevant, a legal opinion from appropriate overseas counsel to the
Additional Borrower, acceptable to the Agent, addressed to the Finance
Parties.
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SCHEDULE 3
CALCULATION OF THE MLA COST
(a) The MLA Cost for a Loan denominated in Sterling for its Interest Periods is
calculated in accordance with the following formula:
BY + L(Y-X) + S(Y-Z) % per annum = MLA Cost
--------------------
100-(B + S)
where on the day of application of the formula:
B is the percentage of the Agent's eligible liabilities which the Bank
of England requires the Agent to hold on a non-interest-bearing
deposit account in accordance with its cash ratio requirements;
Y is the rate at which Sterling deposits are offered by the Agent to
leading banks in the London interbank market at or about 11.00 a.m. on
that day for the relevant period;
L is the percentage of eligible liabilities which the Bank of England
requires the Agent to maintain as secured money with members of the
London Discount Market Association and/or as secured call money with
certain money brokers and gilt-edged primary market makers;
X is the rate at which secured Sterling deposits may be placed by the
Agent with members of the London Discount Market Association and/or as
secured call money with certain money brokers and gilt-edged primary
market makers at or about 11.00 a.m. on that day for the relevant
period;
S is the percentage of the Agent's eligible liabilities which the Bank
of England requires the Agent to place as a special deposit; and
Z is the interest rate per annum allowed by the Bank of England on
special deposits.
(b) For the purposes of this Schedule 3:
(i) "ELIGIBLE LIABILITIES" and "SPECIAL DEPOSITS" have the meanings given
to them at the time of application of the formula by the Bank of
England; and
(ii) "RELEVANT PERIOD" in relation to each Interest Period, means:
(A) if it is three months or less, that Interest Period; or
(B) if it is more than three months, three months.
(c) In the application of the formula, B, Y, L, X, S and Z are included in the
formula as figures and not as percentages, e.g. if B = 0.5% and Y = 15%, BY
is calculated as 0.5 x 15.
(d) (i) The formula is applied on the first day of the relevant Interest
Period.
71
(ii) Each rate calculated in accordance with the formula is, if necessary,
rounded upward to four decimal places.
(e) If the Agent determines that a change in circumstances has rendered, or
will render, the formula inappropriate, the Agent (after consultation with
the Banks) shall notify the Company of the manner in which the MLA Cost
will subsequently be calculated. The manner of calculation so notified by
the Agent must not place the Banks in a better or worse position than they
had prior to the change in circumstances and shall, in the absence of
manifest error, be binding on all the Parties.
72
SCHEDULE 4
FORM OF REQUEST
To: HSBC INVESTMENT BANK plc
From: [BORROWER]
Date: [ ]
TI GROUP PLC-(Pounds)500,000,000 CREDIT AGREEMENT DATED 27TH APRIL, 1998
1. We wish to borrow a Facility A Loan/Facility B* Loan as follows:
(a) Drawdown Date: [ ]
(b) Amount of currency: [ ]
(c) Interest Period: [ ]
(d) Payment instructions: [ ].
2. We confirm that each condition specified in Clause 4.2 (Further conditions
precedent) is satisfied on the date of this Request.
By:
[BORROWER]
Authorized Signatory
________________________
* Delete as applicable
73
SCHEDULE 5
FORMS OF ACCESSION DOCUMENTS
PART I
NOVATION CERTIFICATE
To: HSBC INVESTMENT BANK plc as Agent
From: [THE EXISTING BANK] and [THE NEW BANK] Date: [ ]
TI GROUP PLC -(Pounds)500,000,000 CREDIT AGREEMENT DATED 27TH APRIL, 1998
We refer to Clause 28.3 (Procedure for novations).
1. We [ ] (the "EXISTING BANK") and [ ]
(the "NEW BANK") agree to the Existing Bank and the New Bank novating all
or part of the Existing Bank's Commitment, rights and obligations referred
to in the Schedule in accordance with Clause 28.3 (Procedure for
novations).
2. The specified date for the purposes of Clause 28.3(c) (Procedure for
novations) is [date of novation].
3. The Facility Office and address for notices of the New Bank for the
purposes of Clause 35.2 (Addresses for notices) are set out in the
Schedule.
4. This Novation Certificate is governed by English law.
THE SCHEDULE
COMMITMENT/RIGHTS AND OBLIGATIONS TO BE NOVATED
[insert relevant details].
[Existing Bank] [New Bank]
By: By:
Date: Date:
[NEW BANK]
[Facility Office Address for notices]
HSBC INVESTMENT BANK plc
By:
Date:
74
PART II
BORROWER ACCESSION AGREEMENT
To: HSBC INVESTMENT BANK plc as Agent
From: [PROPOSED BORROWER] and TI GROUP plc
Date]
TI GROUP PLC -(Pounds)500,000,000 CREDIT AGREEMENT
DATED 27TH APRIL, 1998 (THE "CREDIT AGREEMENT")
We refer to Clause 28.4 (Additional Borrowers).
[Name of company] of [Registered Office] (Registered no. [ ]) (the
"PROPOSED BORROWER") agrees to become an Additional Borrower and to be bound by
the terms of the Credit Agreement as an Additional Borrower in accordance with
Clause 28.4 (Additional Borrowers).
The address for notices of the Proposed Borrower for the purposes of Clause 35.2
(Addresses for notices) is:
[
]
This Agreement is governed by English law.
By:
[PROPOSED BORROWER]
Authorized Signatory
By:
TI GROUP plc
Authorized Signatory
75
SIGNATORIES
COMPANY
TI GROUP plc
By: X. XXXXX
TIIH
TI INTERNATIONAL HOLDINGS LIMITED
By: X. XXXXX
ARRANGERS AND BANKS
ABN AMRO BANK N.V.
By: X.X. XXXXXX
CITIBANK, N.A.
By: XXXX XXXXXXXX
MIDLAND BANK plc
By: F.T. XXXXXXX
AGENT
HSBC INVESTMENT BANK plc
By: D.R.R. STENT
BK:236837.5
B1:131361.5
